Attorneys at the U.S. Department of Labor and the Acting Solicitor General are now reporting to a new President with a different philosophy and policy priorities. On at least two high-profile pieces of litigation of great importance to employers, the Trump representatives have asked courts for more time to file briefs.
First, in late April, the Acting Solicitor General asked the U.S. Supreme Court to extend the deadline for filing initial briefs in three cases that involve agreements in which the employee waives the right arbitrate on a class, collective or group basis. The Court extended the deadlines from April 28 to June 9. As we have previously reported, the NLRB, with the longstanding Democratic majority and General Counsel, has pushed its theory that the National Labor Relations Act’s protection of concerted activity makes such agreements “unlawful interference” and void. U.S. Courts of Appeal have split on the issue.
Many employers have entered into arbitration agreements of this sort with employees in order to avoid going to court, which is typically more expensive than arbitration and sometimes leaves both employees and employers without a cost-effective forum for employment disputes. According to the Acting Solicitor General’s request to the Court, “[t]he current briefing schedule [was] no longer adequate for the government [because] ... [t]he Acting Solicitor General engaged in a process of reviewing the position of the United States” must “consult with new leadership.”
The Administration is also reconsidering its position in two pending cases concerning the so-called “Persuader Rule” (previously discussed here and here). A federal judge in Texas issued a nationwide injunction blocking enforcement of the rule on June 27, 2016, but cases in federal district courts in Arkansas and Minnesota were put on hold. The DOL appeal of the Texas court injunction is pending. Now, in recent status reports to the courts in the Arkansas and Minnesota cases, the DOL has requested two more months to reassess its position. The request has been granted in the Arkansas case through July 3. There has not been a decision yet on the request in the Minnesota case. The result here seems fairly clear, and many commentators watching the issue expect the Trump team to reverse the position taken by the Obama Administration.