United States: "Let Me Tell You How It Will Be; There's One For You, Nineteen For Me." (Beltway Buzz - December 21, 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.

"Let me tell you how it will be; There's one for you, nineteen for me." The taxman will look a little different beginning in 2018, as the Tax Cuts and Jobs Act was passed by Congress on December 20—by far the most significant legislative accomplishment of this administration. The last major changes to the U.S. tax code were enacted on October 22, 1986, just three days before a much more meaningful and historical event. Tax reform will never be able to compete with Game 6 of the 1986 World Series, but this reform package is still a pretty big deal. The Buzz has canceled all holiday plans in order to meticulously comb through the legislation to report back to you what you need to know. In the meantime, here are some tidbits from the bill that relate to labor and employment policy:

  • The legislation includes a provision championed by Sen. Deb Fischer (R-NE) that uses tax credits as a "carrot" to encourage employers to offer 12 weeks of paid leave.
  • The legislation prohibits businesses from claiming as a deductible business expense amounts paid to settle sexual harassment claims under nondisclosure agreements.

"It's the Most Wonderful Time of the Year." Many employers are undoubtedly whistling this holiday classic in light of all the activity that continues to flow out of the National Labor Relations Board (NLRB). When the Buzz published last week, former NLRB Chair Philip Miscimarra still had about one day left on his term, and the Board has issued more significant cases in the interim. Here is a quick recap of what has transpired at the Board over the last two weeks.

  • "Ambush" elections. The Board took its first steps to amending or overhauling its 2015 changes to its union election rules by issuing a request for information on December 14.
  • Joint employer. About two-and-a-half years after the Board upended its joint employer standard in Browning-Ferris Industries, the Miscimarra-led NLRB reversed the expanded standard in Hy-Brand Industrial Contractors, Ltd. Mark G. Kisicki breaks down the decision here. Despite the reversal, The Wall Street Journal notes that given the policy oscillation at the Board, a permanent fix to codify the "direct and immediate" standard (e.g., the Save Local Business Act) is necessary.
  • Specialty Healthcare. On December 15, the Board issued a decision overturning the 2011 Specialty Healthcare decision, which allowed unions to gerrymander bargaining units. The Board ruled: "We find there are sound policy reasons for returning to the traditional community-of-interest standard that the Board has applied throughout most of its history, which permits the Board to evaluate the interests of all employees—both those within and those outside the petitioned-for unit—without regard to whether these groups share an 'overwhelming' community of interests."
  • Handbook cases. The Board overruled its Lutheran Heritage standard for evaluating the legality of facially neutral workplace rules and policies. Charles E. Engeman has the details.
  • Bargaining obligations. On December 15, the Board overruled a 2016 decision that required employers, upon expiration of the collective bargaining agreement, to bargain with the union over changes that were consistent with past practice. Kenneth B. Siepman and Matthew J. Kelley's article on the decision is forthcoming on Ogletree Deakins' Traditional Labor Relations blog.

It will clearly take some time for these cases to play out in the real world, particularly if federal courts of appeal are subsequently involved. As always, Ogletree Deakins will keep you informed along the way.

Happy Birthday, ADEA! On December 15, the Age Discrimination in Employment Act (ADEA) turned 50 (even harder to believe for the Buzz is that we are actually covered by the ADEA). To commemorate the anniversary of this landmark civil rights law, the Equal Employment Opportunity Commission (EEOC) has established a pretty useful website that contains, among other things, a historical timeline, descriptions of seminal ADEA cases, and ADEA charge data. Moreover, in conjunction with the anniversary of the ADEA, the U.S. Senate Special Committee on Aging recently held a hearing titled "America's Aging Workforce: Opportunities and Challenges." The Society for Human Resource Management (SHRM) testified on the benefits of strategic workforce planning to evaluate current and future talent needs, as well as best practices for recruiting and retaining older employees. The American Association of Retired Persons (AARP), on the other hand, focused on age discrimination and advocated for passage of the Protecting Older Workers Against Discrimination Act, which would overrule the Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc. and allow "motivating factor" claims under the ADEA.

"You'll Shoot Your Eye Out!" If such an accident with an official Red Ryder carbine action, 200-shot, range model air rifle occurred in a covered workplace, it would undoubtedly be a recordable injury under the Occupational Safety and Health (OSH) Act and its implementing regulations. Buzz readers are by now aware that a 2016 regulation requires electronic filing of prescribed forms for recording such workplace injuries. Last week, the Buzz reported that the deadline for submission of 2016 300A reports—already extended twice—was this past Friday, December 15. Well, the Occupational and Safety Health Administration (OSHA) has announced that the deadline has been extended again, this time until December 31.

Commissioner Yang to Leave EEOC. In other EEOC news, former chair and current commissioner Jenny Yang's time at the Commission is coming to a close. Technically, Yang's term officially ended months ago—on July 1—but with Janet Dhillon nominated to succeed her, federal law has allowed her to continue to remain on the Commission. However, that same provision requires Yang to give up her seat on the Commission upon the Senate's adjournment at the end of this session.

All I Want for Christmas Is to Be Confirmed by the U.S. Senate. The Buzz has been monitoring the glut of political nominees who have been cleared through the Senate Health, Education, Labor and Pensions (HELP) Committee, but have yet to have a vote on the Senate floor. This group includes Kate O'Scannlain (nominated to be solicitor of labor); Scott Mugno (nominated to be assistant secretary for OSHA); Preston Rutledge (nominated to be assistant secretary for the Employee Benefits Security Administration); Cheryl Stanton (nominated to be the Wage and Hour Division's administrator); Janet Dhillon (nominated to be chair of the EEOC); and Daniel Gade (nominated to be EEOC commissioner). Unfortunately for this group, if they are not confirmed prior to the end of this current Senate session, their nominations will be sent back to the president. When the second session of the 115th Congress commences in January 2018, Democrats could agree (by unanimous consent) to let these nominees maintain their status quo, i.e., they would simply need a vote by the entire Senate for confirmation. However, Democrats could also choose (by withholding consent) to require the president to renominate all or some of these individuals, who will then be required to be voted out of the Senate HELP Committee again. If this happens, it could further delay the confirmation of these nominees.

Don't Make Senator Murkowski Angry. You Wouldn't Like Her When She's Angry. No, Sen. Lisa Murkowski (R-AK) was not belted by gamma rays; those are just Incredible Hulk earrings and a scarf she sported for the Senate vote on tax reform. The superhero swag was in honor of late Alaska Sen. Ted Stevens, who would wear a Hulk tie during votes to attempt to approve drilling in the Arctic National Wildlife Refuge (ANWR). Of course, politics and superheroes are a natural fit. Iron Man was Secretary of Defense for a time, and Superman was—who else?—President of the United States. The Hulk attire evidently worked for Sen. Murkowski, as the final tax reform package includes a provision to allow oil exploration in the ANWR.

The Buzz will be off next week, but will return on January 5. Happy holidays!

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