National Association of Wholesaler-Distributors (NAW) Labor Litigation and Regulation Update

Jade West, NAW senior vice president - government relations, has provided the following update:

There have been developments in several of the labor issues in which NAW has been involved that we thought would be of interest to you.

First, NAW joined the Coalition for a Democratic Workplace and several other associations in filing an amicus brief with the Supreme Court in the Noel Canning case challenging President Obama’s recess appointments to the National Labor Relations Board (NLRB). As you know, three separate circuit courts of appeals have issued decisions holding the recess appointments unconstitutional. The NLRB appealed the D.C. Circuit Court of Appeals decision in Noel Canning to the Supreme Court, which agreed to hear the case. We filed an amicus brief in the case supporting Noel Canning. The Supreme Court will hear arguments in the case in January and a decision is anticipated in the spring. Click here to read the CDW/NAW amicus brief.

Second, on December 3rd the US Court of Appeals for the Fifth Circuit issued its ruling in D.R. Horton v. NLRB. This case was a challenge to the NLRB’s decision that homebuilder D.R. Horton violated its employees Section 7 rights under National Labor Relations Act by requiring them to sign an agreement waiving their right to join class action judicial actions and agreeing to individually bring complaints against employer to arbitration. The 5th Circuit held that the Board’s decision conflicted with federal policy favoring arbitration. While this decision is unlikely to have far-reaching consequences, it is noteworthy in that it is another court rebuke of NLRB over-reach. Click here to read the D.R. Horton decision.

Third, you may remember that in March, 2013, NAW joined a business coalition effort and filed comments with the Department of Labor objecting to a “Worker Classification Survey” which was seen as a first step toward the anticipated Wage and Hour Division “Right to Know” initiative which would broadly increase worker rights and employer record-keeping obligations under the Fair Labor Standards Act. The Department of Labor ignored virtually all of the comments and recommendations made by the many business groups which filed comments opposing their survey, and subsequently sent the survey to the Office of Management and Budget (OMB) for its required review of proposed regulations. The business coalition is now engaged in the review process with OMB, and NAW and many of our association partners have filed comments with OMB objecting to the Labor Department’s survey and requesting a meeting with OMB to pursue the issue. Click here to read NAW’s comments.

Finally, we are in the process of reviewing the Obama Administration’s just released Fall 2013 Unified Regulatory Agenda and will let you know of any new or unexpected regulatory actions.


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