United States: Beltway Buzz - July 21, 2017

The Affordable Care Act Lives to See Another Day—Repeal and Replace is Dead (for Now). The Republican seven-year quest to repeal and replace the Affordable Care Act (ACA) took a dramatic, possibly fatal hit early this week. In addition to the political fallout, the spectacular crumbling of the latest Senate effort to pass the Better Care Reconciliation Act of 2017 (BCRA) presents great uncertainty for insurers, employers, and health care recipients. The massive collapse was the Senate's second attempt to repeal and replace the Affordable Care Act. By Tuesday, Republicans' "plan B" to temporarily repeal the ACA without having an immediate replacement also imploded, when three senators announced their intention to vote "no" on the plan. While pundits are having a field day declaring the repeal and replace effort dead as a doornail, the pent-up pressure to overturn President Obama's signature legislation is not likely to dissipate rapidly and is likely to eventually lead to further repeal efforts down the road. In the meantime, private insurers, in particular, are facing ambiguity as to whether they can continue to exist in the marketplace and as to how high they dare raise premiums in an effort to compensate for sudden uncertainty. Given these stunning developments, and in view of what looks to be yet another push by the administration to revive these efforts, only time will tell whether the Republicans' long effort to replace the Affordable Care Act is "not only merely dead, but really, most sincerely dead" or whether it may yet live to see another day. (Hat tip to Stephanie A. Smithey, Timothy G. Verrall, and Richard C. Libert.)

Regulatory Agenda. Yesterday, the administration issued its first Regulatory Agenda. As we've previously reported the (usually) semiannual Regulatory Agenda sets forth a roadmap and timeline of the administration's intentions in the regulatory arena. Below are significant entries impacting labor and employment policy. Please know that the agenda's dates are notoriously aspirational and are not often met. Also note the lengthy projection times on some of the estimated dates, which are likely to change.

  • Office of Labor-Management Standards—"Persuader" Rule. Of course, the public comment period on the proposal to rescind the 2016 persuader rule is open until August 11. Interestingly, the Office of Labor-Management Standards (OLMS) does not list an estimated date for finalization, which is customary.
  • Employment and Training Administration—Apprenticeships. Pursuant to President Trump's recent executive order on apprenticeships, the Employment and Training Administration (ETA) intends to issue regulations to "streamline the Apprenticeship Standards to expedite the registrations approval process, and to establish industry recognized third parties to provide high-quality industry recognized apprenticeship programs and other updates and conforming changes as appropriate." A notice of proposed rulemaking (NPRM) is expected in May 2018.
  • Wage and Hour Division (WHD)—Overtime Regulations Request for Information (RFI). In late June, we reported that WHD initiated the first step in an eventual overtime rulemaking by sending a Request for Information (RFI) on the issue to the Office of Management and Budget for preliminary approval. The agenda lists the RFI as being released in July, which means it could appear any day now.
  • Wage and Hour Division—Tip Pooling. In August, the Wage and Hour Division (WHD) is expected to issue an NPRM that will propose rescinding the previous administration's restrictions on tip pooling practices.
  • The Occupational Safety and Health Administration—Tracking of Workplace Injuries and Illnesses. In addition to postponing until December 1 the date on which certain employers are required to electronically submit their completed Form 300A, the Occupational Safety and Health Administration (OSHA) intends to issue a proposal to reconsider, revise, or remove provisions of the Tracking of Workplace Injuries and Illnesses final rule issued in May of 2016. OSHA intends to issue a notice of proposed rulemaking in October 2017.
  • OSHA—Lock-Out/Tag-Out Update. In April 2018, OSHA will issue an RFI (or hold a stakeholder meeting) to explore how recent technological advancements that employ computer-based controls of hazardous energy will impact OSHA's existing lock-out/tag-out standard.
  • Department of Defense, General Services Administration, and National Aeronautics and Space Administration—Anti-Trafficking Provisions. Intended to supplement the final Federal Acquisition Regulation anti-trafficking rules for federal contracts and subcontracts, which were finalized in 2015, a final rule defining the prohibited practice of collecting ''recruitment fees'' will be issued in September 2017.
  • Executive Orders. Notably absent from the agenda are any indications that the administration has any plans to amend or rescind various executive orders and their implementing regulations applying to federal contractors that were issued by the previous administration. This includes, among other matters, new minimum wage and paid sick leave requirements, as well as OFCCP-administered requirements regarding hiring of veterans and individuals with disabilities, and LGBT and pay transparency protections.
  • Also absent from the agenda are significant proposals relating to H-1B visas, as well as Americans with Disabilities Act (ADA) Title III website accessibility. 

NLRB Nominations. On Wednesday, July 19, the U.S. Senate Committee on Health, Education Labor and Pensions (HELP) advanced the nominations of Marvin Kaplan and Bill Emanuel to be members of the National Labor Relations Board (NLRB). As we've been reporting, the next stop will be a vote by the full Senate, but that has yet to be scheduled. Not surprisingly, business groups are supportive of the nominations, while the AFL-CIO opposes the nominations.

Joint Employer. Despite the pending arrival of Messrs. Kaplan and Emanuel to the Board, the drums continue to beat in D.C. for a legislative fix to the joint-employer issue. Earlier this week House Education and the Workforce Committee Chairwoman Virginia Foxx (R-NC) penned an article in The Hill criticizing the NLRB expanded joint-employer standard and noting that "sitting back and leaving the joint employer mess for the courts and the NLRB to clean up isn't an option." Further, at the National Retail Federation's Retail Advocates Summit this week, Vice President Mike Pence indicated that the White House would be supportive of such an effort.

EEO-1 News. Business groups and policymakers in D.C. continue to push back on the Equal Employment Opportunity Commission's (EEOC) new compensation and hours worked reporting requirements:

  • First, business groups have recently turned their attention to newly-installed OIRA Administrator Neomi Rao, requesting that she rescind the changes or at least stay the current effective date of March 2018. We've previously reported on the significance of the OIRA Administrator position, and acting on this request is something within Rao's power to do.
  • Second, earlier this week the House Appropriations committee approved its fiscal year 2018 Commerce, Justice and Science (CJS) appropriations bill, which provides funding for the departments of Commerce and Justice, the National Aeronautics and Space Administration (NASA), and . . . the EEOC, among other agencies. Included in the bill is an amendment offered by Congressman Andy Harris (R-MD) that prohibits the EEOC from going forward with its EEO-1 changes. Keeping such a provision—one that will ultimately fund the government—in the legislation will be a tall order, but securing it in the committee's draft is a necessary first step.

More H-2B Visas on the Way. The Department of Homeland Security announced this week that it would make available 15,000 additional H-2B visas for seasonal low-skilled workers, as long as businesses attest (with supporting documentation) that a lack of temporary foreign workers would cause them "irreparable harm," defined as suffering a "permanent and severe financial loss." Additionally, this one-time increase in H-2B visas is only available through the current fiscal year, which ends on September 30. The H-2B Workforce Coalition offered lukewarm support, cautioning that it might be "too little too late," while the Laborers International Union of North America (LiUNA) expressed appreciation for the "irreparable harm" standard. With neither side thrilled with the result, some in D.C. would say this is good policymaking.

In conjunction with this development, Sen. Thom Tillis (R-NC) released his hold—which we reported on last week—on the nomination of Lee Francis Cissna for director of U.S. Citizenship and Immigration Services.

Dog Days of Summer. Anyone who has worked as a congressional staffer understands that while the job can be exciting and rewarding (not in the financial way, of course) it can also be grueling and monotonous. And anyone who has attended a meeting with a member of Congress or his or her staff knows that that such meetings can be intimidating or just plain awkward (and also grueling and monotonous). Fortunately, some folks on Capitol Hill have come up with a great way to ease these tensions, break the ice, and bring a bit of levity to Congress: dogs. If you're a dog person like we are at the Buzz, check out these congressional canines in both the House and Senate.

Jim and Hal

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions