United States: Beltway Buzz - July 14, 2017

Greetings from hazy, hot, and humid Washington, D.C. Here is your Beltway Buzz.

McConnell Delays August Recess, Vows Health Care Vote "Next Week." Senate Majority Leader Mitch McConnell (R-KY) announced on Tuesday that he is delaying the August recess by two weeks in order to enable the Senate to attend to matters that are becoming increasingly urgent. In particular, after Senate Republicans released a new version of the Affordable Care Act repeal/replace effort on Thursday, July 13, McConnell remarked that he intends to set a vote on the bill sometime next week. Besides health care, there are a number of other hot items on the horizon, including the Fiscal Year 2018 budget, the National Defense Authorization Act, and tax reform. The federal government will shut down on October 1 if a new funding bill is not passed, and the nation's borrowing limit must be raised no later than early October to prevent a possible governmental default. As if all this weren't enough, McConnell has indicated that he hopes to address the increasing backlog of unconfirmed nominations to important posts. Adding two more working weeks to the schedule may hardly make a dent in the task at hand, but at least it shows that there is recognition within the Senate that time is quickly running out. (Hat tip to Stephanie A. Smithey, Timothy G. Verrall, and Richard C. Libert.)

Joint-Employer Hearing and Legislation. On Wednesday, July 12, the House Education and the Workforce Committee held a hearing on the joint-employer issue and its impact on job creation. This hearing (along with probably half a dozen hearings on the issue over the last two years) will help to serve as the legislative record for the introduction of a bill to codify the pre-BFI (2015) "direct and immediate control" standard. We are also told that the bill will go beyond the National Labor Relations Act (NLRA) and make changes to the joint-employer standard in the Fair Labor Standards Act (FLSA) as well. Expect the bill to be introduced sometime in the next few weeks.

DOL/NLRB Nominee Hearing. The U.S. Senate Health, Education, Labor and Pensions (HELP) Committee held a hearing yesterday on Patrick Pizzella's nomination to be Deputy Secretary of the U.S. Department of Labor (DOL) and on the nominations of William Emanuel and Marvin Kaplan to be members of the National Labor Relations Board (NLRB). The committee will vote on the NLRB candidates on July 19, but no date has been set for committee consideration of Pizzella's nomination. Assuming they are approved by the committee (where Republicans enjoy a slim one-member majority), the next step for Kaplan and Emanuel will be the Senate floor. This timeline—particularly now that the Senate's August recess has been postponed—likely means that Kaplan and Emanuel will join the NLRB sometime in the next few weeks.

USCIS Director Nominee in Limbo. There are various reasons—some known, some unknown—for the nominations bottleneck that McConnell plans to address in the next few weeks. The confirmation vote on the Senate floor on the nomination of Lee Francis Cissna, President Trump's pick for director of U.S. Citizenship and Immigration Services (USCIS), was indefinitely postponed when Senator Thom Tillis (R-NC) placed a "hold" on his nomination—an unusual move for a senator in the majority. Senator Tillis is trying to use this hold as leverage to encourage the administration—and particularly the U.S. Department of Homeland Security (DHS)—to issue more H-2B guest worker visas. While the DHS has sent a proposed rule to the Office of Management and Budget to increase the H-2B cap, Tillis is apparently upset with how long this is taking, as time is running out to fill seasonal job openings in the hospitality, landscaping, and seafood industries, among others.

Judicial Nominations. In addition to nominating agency (DOL, NLRB, and USCIS) leaders, President Trump is picking up the pace in filling judicial vacancies on the federal courts. Ogletree Deakins' own Thomas A. Farr—a shareholder in our Raleigh, North Carolina office—was nominated this week to be a United States District Judge for the Eastern District of North Carolina. While the president is expected to announce many more nominations to the federal judiciary in the coming weeks and months, Tom's well-deserved nomination is obviously one which the Buzz will monitor closely.
Appropriations Update. Yesterday, House appropriators released and marked up their Labor, Health and Human Services bill, which provides funding for the DOL, the NLRB, the U.S. Department of Health and Human Services, and the U.S. Department of Education. Though we are still reviewing the draft, we can report that the bill prohibits the DOL from enforcing its "fiduciary" rule and prohibits the NLRB from initiating electronic voting, asserting jurisdiction over Indian tribes, and enforcing its joint-employer standard. No riders are included to address other NLRB issues, such as Specialty Healthcare or the Board's 2015 changes to its election procedures. A summary is here. The full House Appropriations Committee is expected to take up the bill next week. While it's unlikely that the bill will be considered on the House floor, the draft bill will inform discussions that will take place over the next few months concerning the funding of the federal government.

The Right to Bare Arms. Politics and fashion collided again last week as D.C. was at loose ends over a female reporter's removal from the Speaker's lobby in the U.S. House of Representatives for wearing a sleeveless dress. House Speaker Paul Ryan, no fashion expert himself, was needled for what was originally thought to be an overzealous—and sexist—application of a draconian dress code. Fortunately, this story was hemmed in before it could unravel too quickly. It turns out that the House floor has long-standing distinct dress restrictions that apply to both men and women and that have been the subject of various kerfuffles over the years (with exceptions, of course—Michelle Obama and Ivanka Trump both wore sleeveless dresses in Congress). We understand that there are even some "emergency ties" available for those who are out of compliance. Nonetheless, Speaker Ryan has promised to modernize the dress code. This is no doubt welcome news as having to wear such attire is another reason to avoid D.C. in the summer.

Jim and Hal

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