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.

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 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
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

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