United States: Beltway Buzz - July 7, 2017

NLRB/DOL Nominee Hearings. On Thursday, July 13, the U.S. Senate Committee on Health, Education Labor and Pensions (HELP) will hold confirmation hearings on the nomination of Patrick Pizzella to serve as Deputy Secretary of Labor, as well as the nominations of Marvin Kaplan and William Emanuel to serve on the National Labor Relations Board (NLRB). Perhaps as soon as immediately after the nomination hearing, the HELP Committee will vote on whether to send the nominees for consideration by the Senate. This means that there may be enough time to get these nominations confirmed before the Senate leaves for its August recess. With respect to the NLRB, this will give Republicans a 3-2 majority for at least five months, until Chair Miscimarra's term expires in mid-December (and hopefully the administration is already putting a plan in place to ensure that Miscimarra's seat doesn't remain vacant for long, if at all).

Acting Agency Officials May Soon Turn Into Pumpkins. Perhaps adding intrigue to the nominations process is the arcane Federal Vacancies Reform Act of 1998 (FVRA), which, among other provisions, establishes limitations on the amount of time agency officials can serve in an "acting" capacity. Calculating these time restrictions can be complicated, but officials who have been serving in "acting" roles since the start of the new administration may find that their time runs out sometime in the fall. If these individuals continue to serve after their FVRA prescribed time, then their actions "shall have no force or effect." Legal eagles may recall that this very issue was addressed in the recent Supreme Court decision involving NLRB Acting General Counsel Lafe Solomon. The bottom line is that that these FVRA limitations may influence the timeframes for nominating individuals to agency posts.

New Regulatory Czar. Last week, the Senate confirmed law professor Neomi Rao as Administrator of the Office of Information and Regulatory Affairs (OIRA) ("oh-eye-ra"), within the Office of Management and Budget. This is a very wonky, but important position within the government, because the OIRA Administrator serves as the federal government's chief regulator (law geeks may recall that Cass Sunstein once held this position). OIRA conducts cost-benefit analyses on proposed regulations and ensures that such proposals satisfy the procedural requirements set forth in various executive orders and statutes such as the Paperwork Reduction Act. OIRA can also have a significant influence in shaping or pulling back agency actions. Notably, OIRA scaled back certain aspects of OFCCP's revisions to its VEVRAA and Section 503 regulations and rejected OSHA proposals on musculoskeletal disorders and workplace noise in the early years of the Obama administration. Current issues that Rao will have on her plate include the Department of Labor's pending Request for Information regarding the overtime regulations and whether or not to review the EEOC's changes to its EEO-1 form.

Where is the Regulatory Agenda? Speaking of regulations, the administration has yet to issue a Regulatory Agenda, the comprehensive document that serves as the federal government's forecast and timeline of regulatory activity. The Regulatory Agenda is important for employers because it puts them on notice of potential regulatory changes and provides them with an opportunity to engage with policymakers on issues that may have significant impacts on their businesses. The Regulatory Agenda is traditionally released twice each year: once in the spring and then again in the fall. There are exceptions, of course (in 2012, only a single agenda appeared, issued in late December of that year). The most recent Regulatory Agenda was released in mid-November 2016. In recent years, the Regulatory Agenda would often appear right before a major holiday—July 3 in one year—and, in a couple of years, during the week of Thanksgiving—as a cruel gift to policy-watchers.

Joint Employer Fix on the Way? The House Education and the Workforce Committee will hold a hearing on July 12 on the NLRB joint employer issue. Look for this hearing to be a jumping-off point for introduction of legislation on this issue. Moreover, it is possible that House Republicans may look to go beyond a fix of the NLRB's 2015 Browning-Ferris decision and also tighten joint employer standards in other statutes, such as the Fair Labor Standards Act (FLSA).

Fiduciary News. Two developments regarding the previous administration's fiduciary rule: First, as we've previously reported, certain elements of the rule went into effect approximately one month ago, while other provisions will not take effect until January 1. Late last week, the DOL's Employee Benefits Security Administration issued a request for information (RFI) from the public on whether to further extend that January 1 effective date. Stakeholders have only 15 days to file comments, and at least one business group has requested that this comment period be extended to 60 days. Second, before heading off for their July 4th celebrations, DOL and DOJ attorneys filed their brief in the Fifth Circuit Court of Appeals, which mostly defends the rule from the plaintiffs' appeal but notably declines to defend the rule's provisions that restrict class action litigation waivers in arbitration agreements in light of the DOJ's new position in Murphy Oil.

The Bell Tolls for . . . No One? If, like us, you're still feeling pretty patriotic during this July 4th week, you might be interested in this story about a 2,000-pound replica of the Liberty Bell that has been missing from Washington, D.C. for almost 40 years! Sounds like a job for Nicholas Cage.

Jim and Hal

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