United States: The Beltway Buzz - Friday, June 30, 2017

As if timed for the holiday weekend, we've had another week of fireworks here in Washington, D.C. Here is your Beltway Buzz.

A Fully Operational NLRB? On Tuesday evening, President Trump finally nominated labor attorney William J. Emanuel to one of two empty seats on the five-member National Labor Relations Board (NLRB). Last week, we reported that the president had nominated Occupational Safety and Health Review Commission (OSHRC) counsel Marvin Kaplan to fill the other vacancy. The challenge now will be to see if the Senate can schedule the hearings and votes on these nominees before departing for August recess. We think this will be very difficult to do. After losing next week to the July Fourth recess, it is anticipated that much of the Senate's remaining time in July will be taken up by the healthcare debate. Moreover, Democratic senators are likely to look for ways to delay NLRB nominee confirmations in order to preserve the status quo at the Board for as long as possible. If the votes on Emanuel and Kaplan don't happen before August, we will have to wait until sometime in the fall for a fully constituted NLRB.

New EEOC Chair. In a surprise move, President Trump has nominated Janet L. Dhillon, executive vice president, general counsel, and corporate secretary of Burlington Stores, Inc., to be chair of the U.S. Equal Employment Opportunity Commission. Dhillon appears to have extensive experience in dealing with workplace issues. She also served as the first president of the Retail Litigation Center, a sister organization of the Retail Industry Leaders Association. It had been assumed that Acting Chair Victoria A. Lipnic—who has been serving in her current capacity since January of this year and as a commissioner since 2010—would be named chair (just as Philip A. Miscimarra had been acting chair of the NLRB prior to becoming chair). We'll no doubt have more on Ms. Dhillon in future editions of the Buzz.

Whither EEOC Commissioner Yang? Interestingly, rather than nominate Dhillon to the seat that has been vacant since the expiration of former commissioner Constance S. Barker's term at the end of 2016, the White House has nominated her to take the place of Jenny Yang, whose term expires tomorrow, July 1, 2017. Nominating Dhillon for Yang's seat could have the unintended effect of prolonging Yang's tenure at the EEOC.

Here's how: Pursuant to Title VII of the Civil Rights Act of 1964, Yang can remain on as a commissioner for an additional 60 days—roughly until August 30, 2017—as long as nobody is nominated and approved by the Senate to take her place. However, if a replacement is nominated before those 60 days expire (as Dhillon has been), Yang can retain the seat while the nomination is pending until the session of the Senate adjourns—likely, sometime at the end of December. Confusing, right? So Dhillon could be confirmed as early as July (and Yang would be gone), but as long as she remains unconfirmed, Yang can retain her seat. On the other hand, if Dhillon had been nominated for Barker's former seat, then Yang would be off the Commission for good at the end of August.It seems to us that nominating Dhillon for the Barker seat would have been the easier course, but we've seen stranger things in Washington, D.C.

Return of Opinion Letters. The U.S. Department of Labor (DOL) announced this week that it will once again be issuing opinion letters, a process that allows stakeholders to ask the DOL's Wage & Hour Division to explain, in writing, how federal law would apply in specific circumstances. This cooperative approach to compliance was scrapped in 2010 in favor of generalized "Administrator's Interpretations," so this is welcome news for employers. Steve Pockrass and Al Robinson have more on the development.

DOL Files on OT.  Earlier today, the DOL filed its reply brief with the Fifth Circuit Court of Appeals in the case that enjoined the previous administration's changes to the rules governing overtime eligibility. The DOL attempts to thread the needle in its brief by arguing that the Secretary of Labor should have the ability to set a salary basis level but declines to defend the salary level set by the 2016 rule. Steve Pockrass has more.

OT RFI 2 OMB.  No, this isn't Al Robinson's vanity license plate. Rather, it's a shorthand way of saying that this week the DOL sent a request for information (RFI) to the Office of Management and Budget regarding the federal overtime rule. The contents of the RFI are not yet public, but as we noted previously and which was confirmed in DOL's filing this morning, this is the first step in what will be a new overtime rulemaking proposal.

OSHA Electronic Recordkeeping. We previously reported on OSHA's postponement of the collection of employers' electronic injury and illness records. OSHA is now proposing December 1, 2017, as an initial deadline for the filing of these reports. The proposal will be open for public comment until July 13. Melissa Bailey and Matthew Linton have more on the postponement.

Proposed Changes to OSHA Beryllium Rule. On Tuesday, OSHA issued a proposed rule to modify its beryllium regulation for the construction and shipyard sectors. The proposal maintains the lowered exposure limits of the 2016 final rule, but proposes eliminating ancillary provisions relating to exposure monitoring, protective equipment, and medical surveillance, among others. Written comments on the proposed rule are due by August 28, 2017.

Regulators in Glass Houses. Earlier this week, it was reported that DOL employees located in a satellite office location had been complaining about unsafe working conditions, which included rat traps embedded in an unstable building. The DOL employees apparently informed their union representative that DOL was going to provide them with whistles "so that in case of a building collapse [they] could be found."

Have a happy and safe Fourth of July!

Jim and Hal

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