United States: NLRB Returns To Amorphous Joint-Employer Standard. (Beltway Buzz - March 2, 2018)

Last Updated: March 6 2018
Article by James J. Plunkett

NLRB Returns to Amorphous Joint-Employer Standard. Talk about policy oscillation: the National Labor Relations Board's (NLRB) joint-employer recusal debacle continued this week, perhaps coming to an abrupt end (for now). In a stunning development, the Board vacated its December 2017 decision in Hy-Brand Industrial Contractors, Ltd., following a determination from the Board's ethics official that Member William Emanuel should not have participated in the case because his previous law firm represented a party in another case ( Browning-Ferris Industries) that dealt with the same issue. As stated in the Board's statement on Hy-Brand, this means that "the overruling of the Board's decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015), set forth therein is of no force or effect." John P. Hasman has all the details here. The Buzz still wonders when an issue preclusion–like standard began to apply to Board recusal criterion, and questions how such a precedent will impact both Board policy and appointments going forward.

NLRB Nominee Hearing. Stakeholders who are hopeful that the Board will find another vehicle for overturning Browning-Ferris understand that a new member will need to be appointed in order to break the current two-to-two deadlock. That new member could very well be management attorney John Ring, who had his confirmation hearing at the Senate Health, Education, Labor and Pensions (HELP) Committee on March 1. As expected, recusals and conflicts of interest were common topics of senators' questions to Ring. If the committee approves Ring's nomination during its scheduled March 7 vote, the next step in the process will be a vote on the Senate floor.

USCIS Announces Increased H-1B Scrutiny. The Buzz has previously noted an increase in the number of requests for evidence (RFEs) coming from United States Citizenship and Immigration Services (USCIS). Well, according to a new memorandum that became effective last week, employers of H-1B workers will be required to disclose even more information to the federal government. More specifically, pursuant to the announced policy change, employers will be required to provide additional documentation in situations where H-1B employees are working at third-party worksites. Ashley K. Kerr has more.

H-4 Spouse Proposal Delayed. Last week, the Buzz predicted that USCIS would not meet the February deadline it set for issuance of a proposal to eliminate work authorization eligibility for certain H-4 spouses of H-1B nonimmigrants. In a litigation status report filed this week with the United States Court of Appeals for the District of Columbia Circuit in a lawsuit challenging the underlying regulation, the Department of Homeland Security (DHS) stated that it was working really, really hard to get the regulation out by the end of this month but that it needs a few more weeks to do the economic analysis. The status report goes on to say that DHS now expects to send a proposal to the Office of Management and Budget in June, which means an actual notice of proposed rulemaking on this matter might not issue until the fall.

Hobbs Nobs on Capitol Hill. One of Ogletree Deakins' favorite cheeseheads, Eric E. Hobbs, had the pleasure of testifying this week at a House hearing entitled "A More Effective and Collaborative OSHA: A View from Stakeholders." Hobbs is nothing if not both "effective" and "collaborative," so he was the perfect witness to testify on behalf of the U.S. Chamber of Commerce. In his remarks, Hobbs encouraged the Occupational Safety and Health Administration (OSHA) to treat employers as partners—rather than the opposition—in achieving workplace safety. The Buzz is hopeful that Scott Mugno, if eventually confirmed as Assistant Secretary for OSHA, will embrace Hobbs's recommendations.

SCOTUS Hears Union Fees Argument. As the Buzz has been discussing, on Monday the Supreme Court of the United States heard oral argument in Janus v. American Federation of State, County, and Municipal Employees, Council 31, regarding the constitutionality of public sector agency fee arrangements. Attorneys for the plaintiff, as well as the Department of Justice, argued that such arrangements violate the First Amendment of the U.S. Constitution. On the other hand, union attorneys and the State of Illinois argued that governments have greater authority when acting as an employer rather than as a regulator and that such arrangements have been in place for decades, so why upset the apple cart? Justice Neil Gorsuch, thought to hold the deciding vote on the matter, was reportedly silent throughout the argument. Look for a decision toward the end of the Court's term, likely in June.

Teach Them How to Say Goodbye. Earlier this week, Sen. Gary Peters (D-MI) joined an exclusive group of senators by reciting President George Washington's 1796 Farewell Address on the Senate floor. Every year since 1896, in commemoration of Washington's birthday, senators from alternating parties take turns reading Washington's speech, in which he famously declines a third term in office. The theme of unity, which runs throughout the speech, clearly remains relevant to this day.

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