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.

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 Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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