Wednesday, August 1, 2012

And Here's Another Reason Federal Judges Don't Trust Department of Labor Opinions

It's bad enough when executive branch agencies change their positions on interpretations of law based on whoever is in the White House. As I've commented previously, the DOL has been getting hammered by federal judges recently because of its dramatic inconsistency in interpreting the meaning of wage and hour regulations under the Fair Labor Standards Act.  Because there is now a Democratic administration in power, the DOL has reversed itself on several long-standing precedents that were relied on by employers.  Federall judges, in response, are simply ignoring DOL's interpretations of its own regulations.

But this latest move is unprecedented, at least in its obviousness. With the threat of budget sequestration looming at the start of 2013, a number of defense contractors are looking ahead to the effect of the loss of hundreds of millions of dollars as result of budget cuts for DOD. Unsurprisingly, the loss of these contracts will mean significant job losses for those companies, and they are now making preparations to provide their workforces with the required 60 day advance notice of pending terminations. This notice is required under the federal Worker Adjustment and Retraining Notification Act, frequently known as "WARN".  Typically, such notice would be required if sequestration is still scheduled at the time the notices are due.

It didn't take Obama administration officials long to figure out that 60 days before January 1, 2013 is somewhere in the vicinity of November 2, 2012, or right before the presidential elections. Realizing that it wouldn't look particularly good for the president and his minions if hundreds of thousands of workers were to receive pending layoff notices just before they went to the polls, the president's people immediately leveraged the Department of Labor into issuing an advisory opinion that such layoff notices, particularly the ones given right before an election in which their benefactor might lose his job, were just inappropriate.

So we have the picture of a federal executive branch agency, charged with upholding laws designed to protect employees, undercutting those laws in an effort to sway the electorate in favor of the current White House occupant.   The move itself is not surprising. The president and his people are from Chicago, after all.  What is surprising is that it was done so openly, and apparently in a state of almost panic.  Regardless, this will provide more fodder for federal judges who are none too happy with how unreliable DOL's advice has become.

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