Picking the New Secretary of Labor: A Backgrounder on Peter Kirsanow

This post is part of a series on the candidates we understand to be under consideration for Secretary of Labor.

Last week, President-elect Donald Trump met with Peter Kirsanow, a management-side employment and labor attorney practicing with Benesch, Friedlander, Coplan & Aronoff. Although he is based in Cleveland, OH, Kirsanow, an African-American conservative, is no stranger to Washington.  He served as a member of the NLRB from 2006 to 2008.  Currently, Kirsanow is a member of the U.S. Commission on Civil Rights.

National Labor Relations Board Opinion Highlights

While on the Board, Kirsanow participated in a number of decisions that were criticized for undermining protections for unionized employees.  In 2009 in Oakwood Healthcare, Inc., the Board reinterpreted three aspects of the statutory definition of “supervisor” enumerated in Section 2(11) of the Act.  This decision expanded the group of employees who are defined as supervisors and therefore excluded from the bargaining unit.  The dissent in the case criticized the majority’s approach as “threaten[ing] to create a new class of workers under federal law: workers who have neither the genuine prerogatives of management, nor the statutory rights of employees.”

Kirsanow also participated in the weakening of protections against “salts” in Oil Capitol Sheet Metal, Inc. and Toering Electric Co..  In Oil Capitol Sheet Metal, Inc., the Board eliminated the presumption that a union salt fired for discriminatory reasons would have been employed indefinitely, placing salts on unequal footing with other employee victims of discrimination.  This decision marked a departure from the Board’s prior rule, which placed the burden on the employer to show backpay should be reduced for salts.  Protections for salts were further eroded in Toering Electric Co., where the Board stated that the Act only protects job applicants who are “genuinely interested in seeking to establish an employment relationship with the employer.”  The dissenters in this decision argued that this new standard undermined the status of salting as a protected, concerted activity under Section 7 of the Act.

Continue reading

Picking the New Secretary of Labor: A Backgrounder on Andrew Puzder

President-elect Donald Trump met this weekend with Andrew Puzder, one of his rumored candidates for Secretary of Labor.  Like Trump, Puzder is a Washington outsider: he’s the longtime CEO of CKE Restaurants, the company that owns fast-food chains Hardee’s and Carl’s, Jr.  Puzder has been one of Trump’s staunchest supporters — advising him and fundraising for him on the campaign trail — as well as an outspoken critic of the Obama administration.  On his personal blog and elsewhere, Puzder has made no secret of his pro-business stance on labor issues.  Here’s what we know.
Minimum Wage
As The Atlantic reports, Puzder has voiced strong opposition to a higher minimum wage.  He has argued (more than once) that raising the minimum wage and mandating benefits (like paid leave and health insurance) will end up hurting workers, predicting that businesses will respond to higher labor costs with “price increases, more efficient labor management, and automation.”  (He himself has decided to invest in automation at Carl’s, Jr. restaurants, replacing workers with machines because “[machines] never take a vacation, they never show up late, there’s never a slip-and-fall, or an age, sex, or race discrimination case.”)  
Puzder has also taken aim at government benefits.  His proposed solution to sluggish job growth is “more work, less welfare” — according to him, programs like SNAP and Medicaid have distorted incentives, creating a “welfare cliff” that discourages low-income workers from working more for fear of losing their benefits.
Puzder has also complained about Obamacare’s impact on the economy, claiming that Americans are spending less because of higher health insurance premiums.

Continue reading

Picking the New Secretary of Labor: A Backgrounder on Scott Walker

This post is part of a series on the candidates we understand to be under consideration for Secretary of Labor.

Scott Walker, the current governor of Wisconsin, is perhaps best known for his vehemently anti-union policies. Walker was first elected governor in 2010, survived a recall election in 2012, and was re-elected governor in 2014. In July 2015, Walker announced his candidacy for the 2016 presidential race, but withdrew just two months later. In 2011, Walker proposed and signed into law Wisconsin Act 10 (also known as the “Scott Walker Budget Repair Bill”), which stripped most Wisconsin public sector employees of their collective bargaining rights. In 2015, Walker pushed for and signed into law Wisconsin Act 1, a right-to-work bill that made Wisconsin the 25th right-to-work state in the country.

According to the Milwaukee Journal-Sentinel, Walker will take over this week as the chair of the Republican Governors Association.

2011 Wisconsin Act 10

Wisconsin Act 10 is Walker’s “signature piece of legislation.” It prohibits all public sector employee unions – with the exception of the police and firefighters – from bargaining over health coverage, pensions, hours, workload, and safety. The only issue left to negotiate is wages, but the act also mandates that pay increases not exceed inflation. In addition, the act increases healthcare and pension costs for workers, bars any requirement that government workers pay union fees, and forbids government agencies from collecting employee dues on a union’s behalf. Finally, the act requires any public sector union that engages in bargaining to “win” an election every year – and by “win,” the union must gain not merely a majority of all those who vote, but a majority of all workers in the bargaining unit.

Continue reading

Picking the New Secretary of Labor: A Backgrounder on Victoria Lipnic

This post is part of a series on the candidates we understand to be under consideration for Secretary of Labor.

Victoria Lipnic, now in her second term as an EEOC Commissioner, was one of the 15 recess appointments President Obama made in the spring of 2010. Her reappointment to the Commission was unanimously confirmed by the Senate in 2015. A frequent member of the Commission’s two-person Republican minority, Lipnic served as Assistant Secretary of Labor for Employment Standards in the Bush Administration from 2002 to 2009. During that time she oversaw the Wage and Hour Division’s 2004 overtime regulations, as well as teams managing issues such as workers’ compensation, compliance, and revising FMLA regulations. In addition to her work with the Department of Labor, Lipnic previously served as Workforce Policy Counsel to the Republican members of the Committee on Education and the Workforce in the House of Representatives. Before her work for Congress, Lipnic acted as in-house counsel for labor and employment matters to the U.S. Postal Service and served as a special assistant in the Department of Commerce under Malcolm Baldrige.



Lipnic dissented in the EEOC’s decision in Baldwin v. Foxx, which held that discrimination based on sexual orientation is necessarily a form of sex discrimination, and as such violates Title VII. While Lipnic did join the unanimous opinion in Macy v. Holder, holding that intentional discrimination due to a person’s transgender identity falls under Title VII’s prohibition on sex discrimination, she dissented in Lusardi v. Dep’t of the Army, which held that prohibiting a transgender person from using the restroom of his or her identified gender also constitutes sex discrimination.

Lipnic did separate from the other Republican member to support the 2012 guidance on criminal background checks, which discouraged blanket exclusions of convicted individuals and recommended individualized assessments of whether an employer’s criminal conduct exclusion is job-related and consistent with business necessity. Continue reading

Filling the Cabinet: Candidates for Secretary of Labor

Over the next few days, OnLabor will run a series of backgrounder posts on the candidates we understand to be under consideration for Secretary of Labor.  We start today with Victoria Lipnic, an EEOC Commissioner, who according to several published accounts is the leading contender.  Coming soon: Scott Walker.