United States: Congress—Fall Preview (Beltway Buzz - August 25, 2017)

Last Updated: August 29 2017
Article by James J. Plunkett

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what's happening in Washington, D.C. could impact your business.


Congress—Fall Preview. Hopefully, our representatives have been getting plenty of rest in August, because when they return to D.C. on September 5, they will begin a work period that is expected to be extremely busy. First, as we've noted multiple times in the Buzz, government funding runs out on September 30, and Congress will need to address this in order to avoid a government shutdown (read up on potential consequences of a shutdown here). We expect that Congress will pass some sort of extension (continuing resolution) in the short term to buy themselves some time. President Trump's recent comments about shutting down the government if there is no funding for the wall will also be a factor in these policy debates. Furthermore, the debt limit needs to be increased by September 29, and the Federal Aviation Administration, the Children's Health Insurance Program, and the National Flood Insurance Program are all scheduled to expire on September 30. Members of Congress will be jockeying to have their say in all of these legislative debates. The Senate will also likely spend time considering nominees for vacant agency positions. All of this leaves little room (in the near term, at least) for discussions about tax reform, infrastructure, and trade—which will no doubt frustrate the business community.

Employer Wellness Programs. On Tuesday, August 22, a U.S. District Court judge ordered the Equal Employment Opportunity Commission (EEOC) to reconsider its 2016 changes to its Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) regulations relating to employer wellness programs. The lawsuit, which was brought by AARP, concerns whether the 30 percent reduction in insurance premiums (that the regulations permit employers to offer employees to encourage them to participate in workplace wellness programs) could create such a financial incentive for employees that it might amount to an involuntary medical examination in violation of the ADA and an involuntary collection of genetic information in violation of GINA. The judge determined that the 30 percent figure established by the EEOC was "neither reasonable nor supported by the administrative record." However, because 2017 health plans were designed in reliance on these rules and vacating them "appears likely to cause potentially widespread disruption and confusion," the judge kept the rules in place while ordering the EEOC to reconsider them. No word yet on whether there will be an appeal. Interestingly, with two Republican commissioner nominees waiting in the wings, a rewrite of the EEOC wellness regulations could look quite different. Like a zombie dragon fighting alongside the Army of the Dead, this case could be a game changer for employers with wellness programs.

New NLRB Member and General Counsel Nominees? Public reports are out this week that the administration will nominate Peter Robb, a management attorney in Vermont, as the next NLRB General Counsel and John Ring, a management attorney from D.C., as the next NLRB member. If true, Robb would take over for General Counsel Richard Griffin when his term expires in early November, and Ring would be nominated to fill the seat that will be vacated upon Chair Philip Miscimarra's departure in mid-December. While a lot can certainly happen between now and these vacancies, it is good news for employers that the administration is already in the process of lining up their replacements. 

The Acosta Shuffle. There have been several personnel moves and rumors out of the Department of Labor this week. Secretary Acosta's Chief of Staff, Wayne Palmer, has moved over to run the Mine Safety and Health Administration as acting assistant secretary. No word on whether Palmer will eventually discard the "acting" designation, or whether he is just a placeholder for a more permanent MSHA head. Filling Palmer's role as Chief of Staff is acting solicitor and DOL and National Mediation Board veteran, Nick Geale, who will serve in both capacities for the time being. Additionally, President Trump has announced that he will nominate Jeffrey Grappone, currently with Siemens, to be assistant secretary for public affairs.

In the rumors category, Mason Bishop, who served in President George W. Bush's DOL, is said to be the frontrunner to head the DOL's Employment and Training Administration (ETA). The ETA will play an important role in developing regulations to implement President Trump's executive order on apprenticeship. The sub-agency has also proposed changes to the Labor Condition Application for H-1B visas, which the Buzz reported on recently. Furthermore, Nathan Mehrens, current Deputy Assistant Secretary for Policy, is said to be the DOL's regulatory reform officer, pursuant to President Trump's executive order on regulatory reform. Mehrens has written previously on DOL regulations and agencies.

Joint-Employer Lobbying. We've reported recently that the introduction of the Save Local Business Act (H.R. 3441) in the House would lead to a lobbying push on the issue. To that end, the National Restaurant Association is campaigning in targeted districts with this video, which explains the perils of the NLRB's 2015 decision in Browning-Ferris and urges Congress to pursue a legislative fix.

Are Qualified Retirement Plans a Target for Tax Reform? Speaking of tax reform, the matter has become a more pressing goal than ever, now that ACA repeal-and-replace has foundered, and there is a tremendous push for this Congress to accomplish something—anything—before the end of the year. Of course, in order to pay for the massive tax cuts being proposed, billons in additional revenue have to be found somewhere. Although the retirement services industry has been mounting an aggressive campaign to keep Congress's hands off retirement plans, the White House announced on Monday, July 31 that the tax-preferred treatment of such plans is "still under discussion." This makes sense, given that between 2016 and 2020 total qualified plan and IRA deductions are projected to reach $670 billion—an amount that would go a long way toward funding major tax reductions. Deductions for mortgage interest, charitable contributions, and tax-qualified plans have traditionally been largely untouchable due to the huge industry-wide interest in keeping them intact. However, at the time being, it seems like all of these options remain on the table. (Hat tip to Stephanie A. Smithey, Timothy G. Verrall, and Richard C. Libert.)

The Glamorous Lives of Hill Staffers. Who would have thought that a real-life Gary Walsh would need an eight-page memo outlining his or her duties? Well, a memo was leaked late last week that provides meticulous instructions to the staffer serving as Congressman Todd Rokita's driver this August, as the Indiana Republican crisscrosses the Hoosier State on his Senate campaign. Among other details, the memo instructs the driver that, "Any time you pick up [Rokita], please have a cup of black coffee available for him." The memo further directs the driver to "avoid sudden acceleration or braking" and to "not interrupt [Rokita's] prep time with unnecessary conversation." Maybe we're just jaded here at the Buzz, but we don't think the memo is all that bad—what's wrong with being prepared? Besides, the requests aren't terribly outrageous; it's not like Rokita is demanding foot rubs or a bowl of M&M's with the brown ones removed.

The Buzz will be on vacation next week, but please keep an eye out for our mid-year Regulatory Review!

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