United States: Fiduciary Rule Vacated (Beltway Buzz, March 16, 2018)

Last Updated: March 19 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.


If, like the Buzz, your bracket is already busted, please take a break from the games and spend a few minutes reading about what happened in labor and employment policy in D.C. this week.

Fiduciary Rule Vacated. On March 15, in a surprise decision, the Fifth Circuit Court of Appeals vacated the U.S. Department of Labor's (DOL) 2016 "fiduciary rule" that had imposed new regulations on financial advisors. The court did not split hairs in ruling that the DOL exceeded its statutory authority in issuing the rule: "The DOL interpretation, in sum, attempts to rewrite the law that is the sole source of its authority. This it cannot do." While some of the fiduciary rule's provisions are already in effect, the decision vacates the rule in its entirety because its "comprehensive regulatory package is plainly not amenable to severance." This latest decision creates some uncertainty as to the current validity of the regulation, as the Tenth Circuit Court of Appeals upheld the rule just a few days prior, on March 13. The circuit split means that the Supreme Court of the United States may have the final say on whether the fiduciary rule stays or goes. Ogletree Deakins will have more analysis on this late-breaking development.

Joint-Employer Update (or the Real March Madness). As stakeholders continue to grapple with the National Labor Relations Board's (NLRB) "reversal of its reversal" of the joint-employer standard, the business community has turned its attention to securing a permanent legislative fix to the problem. With government funding set to expire next week (on March 23), business advocates are targeting the must-pass omnibus appropriations package as a vehicle to include legislative language to codify the "direct and immediate" standard that governed joint-employer determinations for decades prior to the 2015 Browning-Ferris decision. As part of the effort, 74 members of the House of Representatives sent a letter urging appropriators to include a joint-employer rider in the omnibus spending bill. This is a bit of a Hail Mary, but buzzer-beaters and Cinderella stories are what March is all about, so who knows what could happen?                                            

NLRB Nominee Advances. After three delayed votes, NLRB nominee John Ring was finally voted out of the Senate Health, Education, Labor and Pensions (HELP) Committee on March 14. Ring now just needs to be confirmed by the full Senate in order to take a seat on the Board and break its current two-to-two deadlock. But this will not be as easy as it seems. Republicans hold only a 51–49 majority in the Senate, and the health problems of senators John McCain (R-AZ) and Thad Cochran (R-MS) may make it difficult for Republicans to ensure the presence of all 51 members on any floor vote. Additionally, there is also the question of where Ring's nomination might fit within Senate Majority Leader Mitch McConnell's priorities (after all, there is a long line of nominees waiting to have their names called). Recall that McConnell secured the confirmations of Board members Marvin Kaplan and William Emanuel rather quickly this past fall. The Buzz will be watching to see if McConnell makes a fully-staffed NLRB a priority again. 

Faces of H-4 Visa Holders. United States Citizenship and Immigration Services recently announced that its proposal to end the H-4 visa program that provides work authorization for spouses of H-1B visa holders probably won't be released until June of this year. Though this delay likely provides some immediate relief for those individuals who are working legally under the program, the continued uncertainty undoubtedly weighs heavily on program participants who have established lives in the United States. This article provides a glimpse into the lives of a few of the individuals working under the program.

Multiemployer Pension Update. The Buzz previously reported on the creation of a bicameral and bipartisan committee within Congress to address the growing multiemployer pension plan crisis. The joint committee—co-chaired by senators Sherrod Brown (D-OH) and Orrin Hatch (R-UT)—met for the first time on March 14. Early reports indicate that the meeting wasn't terribly fruitful. In anticipation of the meeting, the U.S. Chamber of Commerce and the National Coordinating Committee for Multiemployer Plans (NCCMP) jointly issued "Multiemployer Pension Reform Principles," which is intended to provide policymakers with suggestions for solving the growing insolvency of multiemployer pension plans.

More Transparency at OFCCP? The Office of Federal Contract Compliance Programs (OFCCP) has issued a new directive that will require investigators to issue a predetermination notice (PDN) to contractors in audits where there are preliminary findings of discrimination. The contractor will then be afforded an opportunity to respond to the allegations before OFCCP issues a Notice of Violation. In the past, the use of PDNs had been discretionary. The directive is intended to "increase transparency about preliminary findings with contractors, and encourage communication throughout the compliance evaluation process," and is likely an effort to move OFCCP away from the "hide the ball" investigatory tactics about which contractors complained (see page 34 of the OFCCP's Right Mission, Wrong Tactics report). Lauren B. Hicks and Hera S. Arsen have more here.

"Tip" of the Morning to You. On Thursday, just in time for Saint Patrick's Day, the U.S. Capitol was the scene of the 35th annual Friends of Ireland luncheon. The tradition was started by President Ronald Reagan and Speaker of the House Tip O'Neill—both Irish-Americans—as a way to celebrate shared heritage and U.S.-Ireland ties. This year, President Donald Trump, Vice President Mike Pence, Speaker of the House Paul Ryan, and Prime Minister Leo Varadkar of Ireland all attended the event. While celebrating U.S.-Ireland relations and Saint Patrick for 35 straight years is quite the accomplishment, perhaps the event could be a bit more proactive: we all could really use Saint Patrick's help with driving all the snakes out of D.C.

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