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

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