National Labor Relations Board member William Emanuel violated a White House ethics pledge when he voted to reverse an Obama administration-era ruling on the joint employer doctrine, the board’s inspector general found, according to a leaked internal document that stopped short of saying Emanuel did so intentionally.
Emanuel is a Trump appointee to board, which is the main federal labor law enforcement agency. He had previously been found by the inspector general to have had a conflict of interest when he voted in a December case called Hy-Brand. That case reversed a major 2015 board ruling called Browning-Ferris that had vastly expanded corporate legal liability, but it was vacated last month following the inspector general’s determination.
The conflict of interest determination was based on a finding that Emanuel’s former law firm, Littler Mendelson, had represented a client in the earlier Browning-Ferris case. An inspector general report obtained by Bloomberg stated that Emanuel claimed he did not realize that Littler Mendelson had done this, even though he put that client on a list of companies and told the Senate he would recuse himself from any decisions related to those companies.
Still, that amounted to a violation of his White House pledge not to deal with cases involving former clients, Bloomberg reported.
The report said that Emanuel’s “reaction after being informed of the discrepancy” and other statements defending his actions “showed a genuine lack of recall” and there the record was “not sufficient to show that” he intentionally mislead anyone.
Democrats nevertheless called for further investigation. “The Inspector General’s investigation confirms that Member William Emanuel violated his ethics pledge by participating in a case where he had a conflict of interest. In doing so, Member Emanuel has undermined the public’s confidence in the Board’s ability to protect workers’ rights in an impartial manner,” said Rep. Bobby Scott, D-Va., ranking Democrat on the Education and the Workforce Committee.
The IG’s probe was prompted by an inquiry from Democratic lawmakers including Sen. Elizabeth Warren, D-Mass., had made to Emanuel in late January regarding whether he should have recused himself.
The Hy-Brand and Browning-Ferris cases are significant because they involve the Joint employer doctrine — when one business is so intertwined with a second one that it can be held legally responsible the second business’s workplace policies. Until 2015, that required one business to have “direct control” over the other’s policies. But in the Browning-Ferris case, the then-Democratic majority appointee NLRB changed the standard to the much vaguer “indirect control.”
The move was highly controversial with the business community, which argued the new standard was far too broad and ambiguous. In December’s Hy-Brand case, the board, now with a Republican majority, overturned Browning-Ferris and restored the standard back to “direct control.”
The vacation of the Hy-Brand case means the Obama-era joint employer standard is back in place and may remain that way for awhile. The board, which operates by simple majority, is currently split 2-2 between Republican and Democratic appointees.
