President Trump nominated attorney Marvin Kaplan to fill one of two vacancies on the National Labor Relations Board on June 19, 2017. Kaplan currently works on the Occupational Safety and Health Review Commission and previously served as Republican counsel to the House Education and Workforce Committee which, among other things, provides oversight of the NLRB. The five-seat NLRB currently consists of only three members: Chairman Philip Miscimarra (R) and Members Mark Gaston Pearce (D) and Lauren McFerran (D). With members appointed (subject to Senate approval) to 5-year terms, the NLRB is typically composed of three members of the sitting President’s party and two from the other party. If Kaplan’s appointment is approved, it could clear the way for President Trump to appoint a third Republican, giving the NLRB its first Republican majority since 2008.
As we have previously discussed in other posts, the current administration has shown a willingness to revisit Obama-era regulations and could potentially alter the current labor and employment landscape significantly if it chooses to repeal those regulations. Some of the key areas where a majority-Republican NLRB could have a significant impact include misclassification of independent contractors, joint employment, and the overtime rules under the Fair Labor Standards Act. Though it remains to be seen whether Mr. Kaplan will be approved for the position and who the President will select to fill the fifth seat on the NLRB, it seems likely that whomever fills these roles will share the current administration’s willingness to review Obama-era regulations and curtail them, or at the very least, recraft them to what he or she views as a more employer-friendly approach.