United States: It's All About Portion Control. (Beltway Buzz, January 5, 2018)

Last Updated: January 5 2018
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 to the first edition of the 2018 Beltway Buzz. While political and policy discussions are beginning to heat up again in our nation's capital, the weather is not. In fact, it is so cold in D.C. that senators Chuck Schumer (D-NY) and Mitch McConnell (R-KY) were seen hugging each other for warmth. Hopefully we will all survive the "bomb cyclone" to bring you another edition of the Buzz next week. In the meantime . . .

It's All About Portion Control. Members of Congress might be rethinking their New Year's resolutions to lose weight, as they returned this week for the second session of the 115th Congress to find a lot on their plates. For starters, the federal government is currently operating under a third "continuing resolution," which will keep the government running through January 19. Figuring out how to fund the government beyond this date will consume a significant amount of time and resources in the next couple of weeks, particularly if Democrats continue to push for inclusion of a fix to the Deferred Action for Childhood Arrivals (DACA) issue in any final spending bill. Also on their plates are reauthorization of the Children's Health Insurance Program (CHIP) and shoring up healthcare insurance markets, among other matters. Hopefully this leaves at least some time for the Senate to approve nominees to significant labor and employment posts.

Update on Nominees. Speaking of nominees, in our last edition of the Buzz, we discussed the game of musical chairs that results when presidential nominees aren't acted on prior to the adjournment of a Senate session. Just getting in under the wire and avoiding this whole rigmarole were Kate O'Scannlain and Preston Rutledge, who the Senate confirmed on December 21, 2017, to be Solicitor of Labor and Assistant Secretary for the Employee Benefits Security Administration (EBSA), respectively. Stuck in purgatory are Equal Employment Opportunity Commission (EEOC) nominees Janet Dhillon, Daniel Gade, and Chai Feldblum, who have not yet been confirmed but have at least been permitted by Senate Democrats to maintain their current positions. They just await a final vote by the full Senate. The last and most unfortunate group includes the nominees who Democrats have decided must start again from scratch, much like the Cleveland Browns do at this time every year. This requires the president to resubmit their nominations, and it requires the nominees to be voted out of the Senate Committee on Health, Education, Labor and Pensions (HELP). This group includes Cheryl Stanton (nominated to be Administrator of the Wage and Hour Division), Scott Mugno (nominated to be Assistant Secretary for the Occupational Safety and Health Administration (OSHA)), and Patrick Pizzella (nominated to be Deputy Secretary of Labor).

NLRB Slowdown? Hope you enjoyed the flurry (blizzard?) of landmark decisions that issued from the National Labor Relations Board (NLRB) in mid-December, because activity out of the Board is likely to slow down a bit, at least for the time being. This is because Philip Miscimarra's December 16 departure from the Board leaves it at a 2–2 Democrat-to-Republican deadlock and no official nominee has been announced to take Miscimarra's place. In the meantime, Marvin Kaplan was named Chair of the NLRB. As things at the Board continue to unfold, one interesting item to pay attention to in 2018 is something that the Buzz reported on previously: Member William Emanuel's letter to Senator Elizabeth Warren (D-MA) pledging to adhere to broadly defined terms of recusal. Because Emanuel promised to recuse himself from cases involving over 160 companies, in at least some circumstances this could effectively lead to a de facto 2–1 Democratic Board, at least until Mark Pearce's term ends in August of 2018.

Escape Hatch. The Buzz doesn't normally wade into political waters, but given Senator Orrin Hatch's (R-UT) role in the development of national labor policy, we'd be remiss if we did not note that the senior senator from Utah announced this week that he will not seek an eighth term in 2018. Hatch, who has served in the Senate since 1977, is the president pro tempore of the Senate and chair of the Finance Committee. As for his impact on labor policy, from 1981 to 1987, Hatch was chair of the Senate HELP Committee, and he still serves on that committee today. Further, Hatch was instrumental in the passage of the Americans with Disabilities Act (among other labor and employment legislation) and led the filibuster that defeated the 1978 labor law reform effort.

AHP Proposal. The Buzz previously reported on an executive order that President Trump signed in October of 2017 that expanded the availability of alternatives to Affordable Care Act–covered health plans, including association health plans (AHPs). Pursuant to this executive order, on January 5, the EBSA published a proposed rule that would "expand the opportunity to offer employment-based health insurance to small businesses through Small Business Health Plans, also known as Association Health Plans." Proponents of AHPs maintain that they allow for expanded coverage while also reducing healthcare costs. Comments are due on March 6, 2018.

Regulatory Fatigue. In case you missed it over the holidays, the New York Times published an interesting article on the impact of regulations on small businesses.

2018 Regulations to Watch. Speaking of regulations, the Buzz expects many of the federal labor and employment policy developments to continue to occur in this area in 2018. Here are a few regulations that we have our eyes on:

  • Overtime. This one is still in the early stages, but its broad application and interesting litigation posture have everyone in the business community watching. The administration is on record stating that they might not even issue a notice of proposed rulemaking until October of this year—perhaps right around the time the Washington Nationals will be hoisting the World Series trophy. Wage and hour nerds are expecting a salary basis threshold somewhere in the $30,000-to-$35,000 range, but just as important is whether the Department of Labor (DOL) will propose to adjust this figure automatically by linking it to inflation or some other index. Further, in its request for information, the DOL indicated that it may evaluate whether regional adjustments to this figure make sense. 
  • "Ambush" elections. It took the NLRB four years to finalize its changes to its union election rules. Comments on the current Board's request for information regarding these changes are due on February 12. Will it take another four years before we see more changes? How long will the Board remain at 2–2, and what impact will this have on the timing of a proposed rule or a final rule?
  • H-1B visa regulations. In its fall regulatory agenda, the administration indicated that in 2018 it will propose regulations to tighten the H-1B nonimmigrant visa program, as well as to prohibit certain spouses of H-1B visa holders from obtaining employment authorization. It is possible that the latter proposal may issue in just a few weeks. These planned restrictions are incredibly significant for employers that use H-1B visa holders to supplement their workforces.
  • OSHA electronic reporting. The proposal to amend the 2016 electronic injury and illness reporting requirements was initially supposed to issue in October of 2017. It was then pushed back to December of 2017. Obviously, the proposal hasn't been released, and there are no signs that it will appear anytime soon. In the meantime, the rule remains in effect, including its anti-retaliation provisions.

Scott of the Antarctic. The aforementioned and ridiculously named "bomb cyclone" has left Charleston, South Carolina, blanketed in snow. This means that while most of his colleagues returned to D.C. earlier this week, Senator Tim Scott (R-SC) was stuck—at least temporarily—in Charleston. As Roll Call reports, however, the senator made the best of it, and clearly enjoyed his snow day.

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.

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