United States: Recusal Refusal. (Beltway Buzz, February 23, 2018)

Last Updated: February 26 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.


In honor of the Olympics winding down, we wrote this week's edition of the Buzz while performing a monster backside triple cork 1440. Read on to see if we stomp the landing.

Recusal Refusal. Toward the end of the year, the Buzz reported on the National Labor Relations Board's decision in Hy-Brand Industrial Contractors, Ltd., which overturned the unworkable joint-employer standard set forth in the Browning-Ferris Industries (BFI) decision of 2015. Readers also recall that some stakeholders are shocked—shocked!—that Board member William Emanuel had the temerity to represent companies in labor law matters. This all came to a head late last week when the Board's inspector general issued a report stating that Emanuel should have recused himself from Hy-Brand, even though neither Emanuel nor his previous firm was involved in the case. In essence, the inspector general ruled that because Hy-Brand and BFI both dealt with the joint-employer issue, Emanuel should have recused himself from Hy-Brand because his firm represented a party in BFI. To the Buzz, this appears to be a very broad and unprecedented standard. And it's weird that former union attorney and Board Member Craig Becker never had the same problem. Huh.

H-4 Dependent Spouse Regulation. According to the most recent regulatory agenda, a notice of proposed rulemaking (NPRM) on this matter is supposed to issue by next week. However, it seems very unlikely that the administration will meet this deadline (regulatory agendas are very much aspirational in nature). The proposal has not yet been submitted to the Office of Information and Regulatory Affairs (OIRA), which is the last stop prior to the issuance of proposed or final rules. When the proposal does arrive at OIRA, an NPRM will likely issue within 30 to 90 days. Of course, this can all change very quickly, so the Buzz will be watching closely.

SCOTUS Vacancy? Many legal eagles and policy wonks consider the confirmation of Neil Gorsuch to the Supreme Court as President Trump's most significant accomplishment of his first term. And while fans of Justice Ruth Bader Ginsburg no doubt encourage the diminutive justice to don a football helmet, bubble wrap, and oven mitts whenever she leaves her house, the New York Times reports that the Notorious RBG may not necessarily be the next justice to retire.

Union Dues at SCOTUS. In other SCOTUS news, on Monday, February 26, the Supreme Court will hear oral argument in Janus v. American Federation of State, County, and Municipal Employees, Council 31. At issue is the constitutionality of public sector "fair share" fees. The plaintiff, Mark Janus, is represented by the National Right to Work Legal Defense Foundation, and his brief can be found here. As we've previously noted, the case could have a significant impact on big labor's coffers.

"Right to Cure" Bill Passes House. Late last week, the House of Representatives passed the ADA Education and Reform Act of 2017. David Raizman has the details on the bill, which seeks to curb purported "drive by" lawsuits under Title III of the Americans with Disabilities Act. While many business groups support the bill, many disability advocates do not.

Agency Guidance Bill. As previously reported in the Buzz, Senator Ron Johnson (R-WI) introduced a bill to require federal agencies to post guidance documents on their websites. Last week, the Guidance Out of Darkness (GOOD) Act advanced through the Senate Committee on Homeland Security and Governmental Affairs. While this is a very narrow bill, the Buzz thinks that more scrutiny on agency sub-regulatory activities is a good thing, so we will continue to monitor the GOOD Act.

LOL—Laugh Out Lobstah. The Buzz has previously commented on New England policymakers' affinity for lobster. Well, Senator Angus King (I-ME) recently used all of his authority to ensure that we will be able to have lobster at our fingertips—while texting, of course. As a result of the senator's efforts, the Unicode Consortium recently announced that it will be debuting a lobster emoji this June (but don't hold your breath for a drawn butter emoji). There is no word yet on how Swiss policymakers feel about this development.

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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