United States: Deal Or No Deal? Bipartisan ACA Agreement Faces Challenges. (Beltway Buzz - October 20, 2017)

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.

Deal or No Deal? Bipartisan ACA Agreement Faces Challenges. A bipartisan agreement forged by senators Lamar Alexander (R-TN) and Patty Murray (D-WA) that would temporarily restore funding for cost-sharing reductions (CSRs) is in limbo, already generating supporters and detractors—and mixed signals from the president. On Tuesday, the two senators announced that they had reached a consensus on a bill that would combine continued funding for CSRs for two years in exchange for, among other things, granting states increased flexibility to regulate insurance under the Affordable Care Act (ACA) and authorizing lower-cost, high-deductible policies. The agreement comes on the heels of the president's announcement late last week that he intends to cut off all future CSR payments beginning in 2018—a move that swiftly created panic within the health care industry, which feared sudden steep premium increases, insurance company mass exoduses, and reduced coverage. The president initially commended the senators for their effort, stating that "it will get us over the immediate hump." However, the president's tone changed less than 24 hours later, when he said in a tweet that he could never support "bailing out" insurance companies that "made a fortune with Obamacare," and he made similar statements to the press on Wednesday. As for the Senate and the House, Democrats generally are expected to lend their support, but Senate Majority Leader Mitch McConnell (R-KY) has been noncommittal, and Speaker Paul Ryan (R-WI) announced his opposition on Wednesday. If this latest bipartisan proposal is to have any positive impact on insurance and coverage rates for 2018, it must be passed—and signed—swiftly. Battle lines are drawn; emotions are raw; and if the recent past is any guide, there is no reliable prognosticator in Washington or elsewhere who would attempt to predict what might happen next. (Hat tip to Richard C. Libert, Stephanie A. Smithey, and Timothy G. Verrall.)

Labor/Employment Nominees Advance. On October 18, the Senate Health, Education, Labor and Pensions (HELP) Committee advanced nine nominations for labor-related positions in the federal government. The nominees include Patrick Pizzella to serve as Deputy Secretary for the U.S. Department of Labor (DOL); Cheryl Stanton to serve as Wage and Hour Division Administrator at DOL; David Zatezalo to serve as Assistant Secretary of Labor for Mine Safety and Health at DOL; Peter Robb to serve as General Counsel to the National Labor Relations Board; Janet Dhillon and Daniel Gade to serve as members of the Equal Employment Opportunity Commission; and Gerald Fauth III, Kyle Fortson, and Linda Puchala to serve as members of the National Mediation Board. The next stop for these nominees will be a final confirmation vote on the Senate floor—hopefully within the next week or so.

Mini-Blacklisting for Federal Contractors? The U.S. Senate and House of Representatives will soon be going to conference on H.R. 2810, the National Defense Authorization Act (NDAA) for Fiscal Year 2018. Among other provisions to be debated will be Section 830 of the Senate's bill, which was included by Senator Elizabeth Warren (D-MA). Section 830 requires Department of Defense (DoD) contracting officers "to consider any identified violations of the Occupational Safety and Health Act or equivalent State laws by the [contractor], and by any covered subcontractors" when evaluating bids. If enacted into law, this provision would essentially resuscitate the 2016 blacklisting regulations, but would be more limited in scope (it would apply only to alleged OSHA violations for contractors bidding on DoD contracts). Still, this is obviously a red flag for federal contractors, and the business community is actively pushing for this language to be stripped from any final bill.

The NDAA will help authorize funds not just for missiles and jets, but also for cookies and brownies. Don't believe me? Here is the agency's 26-page recipe for chocolate-covered oatmeal cookies and brownies to be included in military rations. Here's a taste: "The brownies shall be completely enrobed with a continuous uniform chocolate coating (see 3.2.14) in an amount which shall be not less than 29 percent by weight of the finished product." Happy baking!

Task Force on Apprenticeship. Back in June, we reported on President Trump's executive order intended to promote more practical, efficient, and streamlined apprenticeship programs. The executive order directs the Secretary of Labor to establish a Task Force on Apprenticeship Expansion in order "to identify strategies and proposals to promote apprenticeships." Earlier this week, Secretary of Labor Alexander Acosta announced the membership of the task force. Besides CEOs, business leaders, and union officials, also included on the Task Force is John Ratzenberger—better known as Cliff Clavin—who has become a champion of the "made in America" concept. The task force has been instructed to perform a stereotypically D.C. undertaking: issue a report.

Immigration Enforcement. In a speech delivered to The Heritage Foundation on Tuesday, Acting Immigration and Customs Enforcement (ICE) Director Thomas Homan stated that workplace immigration enforcement would increase this year four to five times from current levels. Homan has been with ICE since 2003 and, in 2015, received the Presidential Rank Award for "exceptional performance over an extended period of time." In a 2016 story in The Washington Post, the acting ICE director was described thusly: "Thomas Homan deports people. And he's really good at it." Of course, both ICE and its parent agency, the Department of Homeland Security, currently have acting officials in charge, and it remains to be seen whether this enforcement strategy will continue to be implemented upon the arrival of permanent political appointees (though the strategy is consistent with the administration's other immigration policies, such as the construction of the wall).

CAP on the Sharing Economy. The Center for American Progress (CAP) has a new report out on the gig economy entitled "Raising Pay and Providing Benefits for Workers in a Disruptive Economy." The report acknowledges that action on the federal level is unlikely and specifically encourages local governments to enact policies to "raise standards for independent contractors." Specifically, the report recommends that cities and states establish minimum wages for independent contractors, as well as wage and benefits boards to set "standards for benefits, training, leave, and pay differentials" for independent contractors.

Trouble Brewing on Capitol Hill. Hill staffers, lobbyists, and political reporters are overflowing with anxiety upon hearing the news this week that Cups & Company—the popular coffee shop located in the Russell Senate Office Building—may be closing. The grounds for the potential closing are a bit muddy at this point, but information is starting to filter out. Apparently, the Architect of the Capitol is in the process of "pouring over" bids from other vendors to run food-service operations out of the space, and the current operators of Cups may lose out. If this comes to pass, it may leave a bitter taste in the mouths of Hill denizens, who may have to look elsewhere for their caffeine fix.

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