United States: Miscimarra's Mic Drop. (Beltway Buzz - December 15, 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.

Washington, D.C., in December is known for its holiday parties, where lobbyists and Hill denizens gather to stab food with toothpicks and knock back cheap—and sometimes not-so-cheap—drinks. Despite all this partying, people actually did some work this week—actually, a lot of work. So brew a pot of coffee (or throw back a few of those cheap drinks, if that's your preference) and check out what happened on the labor and employment policy front this week. It's a lot.

Miscimarra's Mic Drop. For many people, your last week on the job involves writing transition memoranda for your successor, participating in a few exit interviews, and having some nice lunches with colleagues. National Labor Relations Board (NLRB) Chair Philip A. Miscimarra, on the other hand, spent his last week at the Board (his four-year term expires tomorrow, December 16) returning some much needed balance to our federal labor laws by rolling back some of the most significant achievements of the previous Board's last eight years. Here is just a taste of what happened at the Board this week.

  • "Ambush" elections. On December 14, the NLRB published a request for information (RFI) to solicit public input regarding its 2015 changes to the union election procedures. The RFI doesn't necessarily mean that the regulations will be scrapped in their entirety or even changed at all. Indeed, according to the RFI, its purpose is to "to evaluate whether the Rule should be (1) retained without change, (2) retained with modifications, or (3) rescinded, possibly while making changes to the prior Election Regulations that were in place before the Rule's adoption." This means that almost anything is on the table, including targeted changes to specific aspects of the rule (e.g., reinstituting "as-of-right" post-hearing briefs and their accompanying grace periods). Comments are due by February 12, 2018.
  • Joint employer. In a 3-2 decision called Hy-Brand Industrial Contractors, Ltd., which the NLRB issued yesterday, the Board overruled the expanded joint-employer standard that was established in the 2015 Browning-Ferris Industries (BFI) case. In overruling BFI, the majority wrote, "We find that the Browning-Ferris standard is a distortion of common law as interpreted by the Board and the courts, it is contrary to the Act, it is ill-advised as a matter of policy, and its application would prevent the Board from discharging one of its primary responsibilities under the Act, which is to foster stability in labor-management relations."
  • Handbook cases.  In another 3-2 case issued yesterday, the Board overruled its Lutheran Heritage standard for evaluating the legality of facially neutral workplace rules and policies. The majority scrapped Lutheran Heritage's "reasonably construe" standard in favor of a two-step test, which actually takes into account the employer's legitimate justification for the policy. Makes sense to us.

Not a bad week, we'd say. And this might not be the last of it, as more cases could trickle out in the next few days. There is obviously much more to dissect here, so stay tuned for more in-depth analysis from Ogletree Deakins.

Holiday Greetings. Senators Patty Murray (D-WA) and Elizabeth Warren (D-MA) sent NLRB General Counsel Peter Robb a lovely holiday note regarding his  Mandatory Submissions memorandum issued on December 1. Specifically, the Senate Committee on Health, Education, Labor, and Pensions (HELP) Democrats question whether Robb prejudged some of the matters outlined in his memo. Among a series of questions posed to Robb, one of the Buzz's favorites is this question, in which the senators appear to channel the spirit of former Wage and Hour Administrator David Weil: "Did you read about or consider any changes or trends in the economic realities facing workers in the course of developing Memorandum 18-02?"

It's a Festivus Miracle: Tip-Pool Comment Period Extended. On Monday, over 40 House Democrats signed a letter asking Secretary of Labor Alexander Acosta to extend the comment deadline for the Wage and Hour Division's tip-pooling proposal. How did Acosta respond?  Well, in DOLville, they say, that Acosta's heart grew three sizes that day. Consequently, the deadline for submitting comments on the tip-pooling regulation has been extended from January 4, 2018, to February 5, 2018. Fair Labor Standards Act policy wonks with significant holiday plans are likely breathing a sigh of relief.

OSHA Electronic Reporting. Today is the deadline for covered employers to electronically file their completed 2016 Form 300A with the Occupational Safety and Health Administration (OSHA). Pursuant to the 2016 regulation, employers were originally required to file by July 1, but that deadline was pushed back to December 1, and then to December 15. Check out our blurb below on the Regulatory Agenda for the latest on the administration's efforts to amend this rule.

The Lilly Ledbetter Anti-Arbitration Bill?  Last week, the Ending Forced Arbitration of Sexual Harassment Act was introduced in both the Senate and House. The bill would prohibit the use of predispute arbitration agreements in the employment context where the employee makes a claim based on sex under Title VII of the Civil Rights Act of 1964. But a closer reading of the bill reveals that it goes much further than carving out sex discrimination claims from arbitration agreements: It amends the Federal Arbitration Act so that it would no longer cover any employment arbitration agreement (overruling a 2001 Supreme Court case). This obviously goes much further than sex discrimination claims or even the class action waivers that are at issue in the Supreme Court's Murphy Oil case. With bipartisan support—Republican Senator Lindsey Graham (R-SC) and Republican Representative Elise Stefanik (R-NY) are both sponsors—and a powerful message, this bill could gain momentum in a way that mirrors the lobbying effort that resulted in the passage of the Lilly Ledbetter Fair Pay Act of 2009.

Fall Regulatory Agenda Released. In conjunction with a speech President Trump delivered on Thursday, December 14 regarding deregulation efforts, the administration released its fall Regulatory Agenda, the comprehensive document that serves as the federal government's forecast and timeline of regulatory activity. The Buzz is still in the process of reviewing the agenda (we're on our way to one of those holiday parties we mentioned above), but set forth below is a quick summary of significant regulations and when we might see some activity:

  • Wage and Hour Division: overtime regulations. Whoa. A notice of proposed rulemaking (NPRM) isn't expected until October 2018.
  • OSHA: injury and illness regulation. According to the agenda, a proposal "to reconsider, revise, or remove provisions" of the 2016 electronic injury and illness reporting regulation is expected to issue before the end of 2017. Absent from the abstract on this matter are the words "anti-retaliation," "whistleblower," "drug test," and "incentive plan." We'll have to wait and see what the NPRM contains.
  • Office of Labor Management Standards: persuader regulation. A final rule rescinding the 2016 persuader regulation is expected to issue in January 2018.
  • EEOC: wellness regulations. In August 2018, the Equal Employment Opportunity Commission (EEOC) is expected to issue proposals to amend its Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) regulations concerning workplace wellness programs.
  • USCIS: H-4 dependent spouses. In February 2018, United States Citizenship and Immigration Services (USCIS) is expected to propose removing from its 2015 regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization. This would be the first step in what could be a complex and lengthy rulemaking process, which may last many months before promulgation of any final rule.
  • USCIS: strengthening the H-1B nonimmigrant visa classification program. In October 2018, USCIS is expected to propose revising the definitions of "specialty occupation," "employment," and "the employer-employee relationship." USCIS will also "propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders."

H-1B RFEs. Over the past several months, business immigration advocates have noted a perceived increase in H-1B requests for evidence (RFEs). In response, earlier this week, USCIS Director Lee Francis Cissna took to social media to address this matter. Cissna claims that while more RFEs have issued of late, the yearly rate of issuance "has not markedly increased."

DOL Nominees Advance. On Wednesday, December 13, the Senate HELP Committee approved the nominations of Kate O'Scannlain to serve as Solicitor of Labor, Scott Mugno to serve as Assistant Secretary of Labor for OSHA, and Preston Rutledge to serve as Assistant Secretary for the Employee Benefits Security Administration. Next stop for the nominees is a vote by the full Senate, hopefully by the end of the year.

OFCCP Director Named. First, the administration tried to scuttle the Office of Federal Contract Compliance Programs (OFCCP), and then more recently, rumors swirled as to who would run the agency. Now it looks like the administration has finally settled on its OFCCP Director: Ondray T. Harris. Leigh M. Nason and Hera S. Arsen have the  details. The federal contracting community is likely hoping that Harris will instill a more cooperative compliance philosophy at the agency, which has come under recent criticism for its onerous data requests and myopic focus on employer data.

EEOC Commissioner Renominated. President Trump has nominated Chai Feldblum for a third term as Commissioner at the EEOC. Feldblum's current term—her second—expires on July 1, 2018. If confirmed, she would remain on the Commission until 2023. Feldblum, who is in the majority now (along with Commissioner Charlotte Burrows and holdover Commissioner Jenny Yang), will join the minority if and when Janet Dhillon and Daniel Gade are confirmed to the Commission. Feldblum supported both the EEOC's 2016 wellness regulations, as well as its 2016 EEO-1 compensation reporting requirements, both of which may be reconsidered in 2018.

Baby, It's Cold Outside. In an effort to cut costs, the NLRB announced this week that it will permanently close its Anchorage, Alaska, Resident Office (Region 19) effective December 29, 2017. The Board further announced that "the sole agent working out of the Anchorage office will continue to service the area as Resident Agent in a full-time capacity." One wonders whether such a move will have a chilling effect on the agent's exercise of his or her Section 7 rights.

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