United States: The 12 Days (Or So) Of Congress. (Beltway Buzz, December 1, 2017)

Last Updated: December 4 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.


Welcome back, and hold onto your reindeer reins—it's going to be a busy few weeks ahead.

The 12 Days (or so) of Congress. Congress has returned to D.C. after a weeklong Thanksgiving break, and the Trump administration and Republican lawmakers are determined to complete an extensive holiday wish list. For starters, government funding runs out in just one week (on December 8), and the risk of a shutdown looms. The most likely outcome is that Congress will buy itself some much-needed time by kicking the can down the road with another continuing resolution. Then a week after that, Congress is scheduled to adjourn until the new year, though this date could be extended. So besides funding the government, what else is on that wish list? Just some minor issues like comprehensive tax reform, hurricane disaster relief, health insurance market stabilization, reauthorization of the Children's Health Insurance Program, Iran sanctions, and nominations. Oh, and the Deferred Action for Childhood Arrivals (DACA) fix. Clearly, this is a lot to accomplish in a short period of time.

Speaking of DACA . . . So with just a few months before the March 2018 expiration of DACA benefits, what is the current state of play for providing a legislative fix? First, the Buzz hears that Republican leaders don't want to tie DACA to the government funding legislation that must be signed by December 8, though some Democrats are clamoring for its inclusion. Republican leadership would much prefer to deal with the issue in January or February, which leaves little time before the program's expiration. In exchange for DACA, Republicans will likely demand more border and/or interior enforcement. This policy debate is bound to pick up steam as we get closer to March.

H-1B Legislation. On November 15, the House Judiciary Committee approved the Protect and Grow American Jobs Act (H.R. 170). The bill is intended to address perceived abuses in the H-1B visa program. While the bill is unlikely to become law anytime soon, like the Legal Workforce Act (which would make E-Verify mandatory), it could lay the groundwork for future immigration policy discussions.

Union Dues at the Supreme Court. On Wednesday, attorneys for petitioner Mark Janus filed their opening brief in Janus v. American Federation of State, County, and Municipal Employees, Council 31—the Supreme Court case that challenges the constitutionality of public sector agency fee arrangements. As the Buzz has reported previously, although the case doesn't have a direct impact on the private sector, its potentially enormous impact on big labor's coffers bears watching.

Fiduciary Delay Becomes Official. The Buzz has previously reported on the Employee Benefits Security Administration's proposal to extend implementation of certain components of the so-called "fiduciary rule" into 2019. Well, the "best interest contract" provisions are among the components of the rule whose effective dates have now been officially delayed until July 1, 2019.

OSHA News. The Occupational Safety and Health Administration (OSHA) has extended its initial deadline for the electronic filing of injury and illness reports from December 1 to December 15. OSHA simultaneously stated that it "intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions of that rule in 2018." Additionally, the Senate Health, Education, Labor and Pensions (HELP) Committee has announced that it will hold a confirmation hearing for Scott Mugno to be Assistant Secretary for OSHA.

NLRB Recusal Issue. Last week National Labor Relations Board (NLRB) Member William J. Emanuel sent a letter to Senator Elizabeth Warren (D-MA) in response to questions she had posed to him about potential conflicts of interest resulting from his time as a management attorney in the private sector. In the letter, Emanuel promised to recuse himself from all Board cases in which his former clients or law firm is a party or represents a party. The Buzz is no ethics expert, nor do we claim to have a photographic memory, but we seem to recall former Board Member and Service Employees International Union (SEIU) attorney Craig Becker taking a decidedly narrower view of his recusal obligations. Emanuel's letter identifies almost 50 cases before the Board from which he may have to recuse himself. This could create an interesting situation if the Board is deadlocked at 2–2 on a case after Chair Philip Miscimarra's term ends in a couple of weeks.

Usurper of the Throne. Consumer Financial Protection Bureau (CFPB) Director Richard Cordray resigned last week and, in doing so, appointed his chief of staff, Leandra English, as deputy director (a position that had been vacant for two years), which in turn made her acting director upon Cordray's departure. However, President Trump, claiming that he has the power under federal law to fill the director vacancy, appointed Office of Management and Budget Director Mick Mulvaney as acting director. At loggerheads, the parties resorted to the courts (it's what we do here in D.C.—like grabbing a cup of coffee), and, on Tuesday, U.S. District Judge Timothy J. Kelly denied English's request for a temporary restraining order to bar Mulvaney from becoming acting director. English is expected to appeal the decision, but in the meantime, she and Mulvaney are each claiming to be the acting director of the CFPB. And both are showing up to the office.

This hullabaloo over who is Protector of the Realm; Lord or Lady Regnant of the Seven Kingdoms; Breaker of Chains; and the One, True, Rightful Acting Director of CFPB is playing out like a Westerosi power play. Thankfully, the opposing sides are wielding only legal arguments and overheated rhetoric, and not swords or dragons. And while a bit far afield of labor and employment policy, the situation involves serious questions of constitutional and administrative law, so the Buzz is watching closely. After all, one of the statutes at issue—the Federal Vacancies Reform Act—was the basis of the SW General decision by the Supreme Court, which found that former NLRB General Counsel Lafe Solomon had been unlawfully appointed.                                               

If you think this legal game of thrones is a bit much, remember that a federal appellate judge noted that ". . . other than the President, the Director of the CFPB is the single most powerful official in the entire United States Government, at least when measured in terms of unilateral power." Still, Hollywood metaphors abound. The Wall Street Journal editorial board noted that the whole incident is reminiscent of the Seinfeld episode in which George Costanza barricades himself in his office after his employer tries to terminate his employment. In this vein, the Buzz is of the opinion that the absurd situation would make for a great romantic comedy, perhaps with Ryan Gosling as Mick Mulvaney and Emma Stone playing the role of Leandra English. The two CFPB directors will hate each other at first, of course—and maybe even draw a line down the middle of their shared office, à la I Love Lucy. But, by the end, they will have grown fond of each other's quirks and fall in love. It could be called "Unaccountably Yours.

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