United States: NLRB Sees Its Shadow. (Beltway Buzz - February 2, 2018))

Last Updated: February 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.


NLRB Sees Its Shadow. The Buzz previously reported on the National Labor Relations Board's (NLRB) request for information regarding its 2014 changes to its union election rules. This past Friday, January 26, the NLRB emerged from its den on Half Street, saw its shadow, and extended the public comment period by five weeks. Comments are now due on March 19, 2018. Luckily for the Board members, New York City Mayor Bill de Blasio was nowhere in sight.

NLRB Restructuring? Last week, Bloomberg BNA reported that, during a conference call with NLRB regional directors, General Counsel Peter Robb communicated a plan to consolidate certain NLRB regional offices into large districts in order to centralize decision-making. For their part, the regional directors are about as giddy about the proposal as Bill Belichick is after a Pats turnover and have sent a letter to the general counsel voicing their concerns. Of course, the Board itself would have to approve any reorganization plan, and there is still nothing official coming out of the agency, so this whole matter is still up in the air.

Tip Drill. Comments on the tip-pooling proposal of the Department of Labor's (DOL) Wage and Hour Division are due on Monday, February 5. Fortunately for procrastinating stakeholders, spending this Sunday evening writing about federal regulations that implement Section 3(m) of the Fair Labor Standards Act will undoubtedly be preferable to watching the despicable Philadelphia Eagles take on the villainous New England Patriots in the Super Bowl (incidentally, while everybody talks about Tom Brady being the Greatest of All Time, at the Buzz, we prefer a different multiple–Super Bowl–winning quarterback). Accordingly, the Buzz expects that all comments will be filed on time. So far, the DOL has not indicated when a final rule may be issued.

Paid Leave in SOTU. Those of you who stayed up to watch the State of the Uniomn address may have missed the president's call for paid family leave. That's okay, because Employers for Flexibility (E4F), a business coalition that is encouraging "Congress to adopt a voluntary, credible and comprehensive national workplace flexibility policy," certainly didn't miss this important line. On January 31, E4F issued a supportive statement in response and took the opportunity to promote the Workflex in the 21st Century Act. Look for the issue of paid leave to heat up this spring as we approach Mother's Day.

Immigration Bill for High-Skilled Workers Introduced. Last week, U.S. senators Orrin Hatch (R-UT) and Jeff Flake (R-AZ) introduced the Immigration Innovation Act of 2018 (I-Squared),  which would reform the H-1B program for highly skilled foreign workers. The bill increases the annual cap on H-1B visas from 65,000 to 85,000, but it also allows 110,000 additional H-1B visas (for a total of 195,000) if certain market demand requirements are met. The bill also provides work authorization for spouses and dependent children of H-1B visa holders and allows for greater mobility for H-1B workers. Despite significant initial support from the business community, the bill faces an uphill battle in the Senate, simply due to the politicized nature of the immigration debate these days. Moreover, assuming this bill isn't enacted into law, with Hatch and Flake both retiring later this year, the Buzz wonders which Republicans will be the I-Squared champions in the future.

And the Winner Is . . . In conjunction with awards season, late last week the Equal Employment Opportunity Commission (EEOC) released its enforcement and litigation data for fiscal year 2017 (October 1, 2016, through September 30, 2017). Taking the prize for first place are, once again, retaliation claims, which accounted for nearly 50 percent of all claims filed with the Commission during this time period. Like Meryl Streep, retaliation is a perennial winner, so make sure you're up to speed on the "dos and don'ts" concerning this ever-popular cause of action.

Political Theater. Speaking of awards season, not many people watched the Grammy Awards this past Sunday, but do you know who did? Senator Hatch. In person. While the almost-84-year-old senator likely enjoyed live performances by acts like SZA, Kesha, and Childish Gambino, he was there to work. More specifically, Hatch was there to promote the Music Modernization Act, which was recently introduced in the Senate. The bipartisan bill would streamline the music licensing process for online music providers, and would also ensure that musicians are paid the royalties they are owed. Hatch knows a bit about royalties: In addition to serving as a senator for the past 41 years, he is also a recording artist

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