United States: OFCCP Jurisdiction Update (Again). (Beltway Buzz - June 1, 2018)

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.

Rulemaking for Me, but Not for Thee. Late last week, senators Elizabeth Warren (D-MA), Kirsten Gillibrand (D-NY), and Bernie Sanders (I-VT) sent a letter to National Labor Relations Board (NLRB) Chairman John Ring asking him to put the brakes on the Board's recently announced decision to explore rulemaking as a means to address the joint-employer issue. The senators argue that rulemaking on this matter is an attempt "to evade the ethical restrictions that apply to adjudications." While the Buzz doesn't think that this letter will ultimately impact the Board's decision on whether to pursue rulemaking, it is indicative of the scrutiny that the Board will continue to face from certain lawmakers who are intent on preserving as much of the previous Board's legacy as possible. Moreover, if the House and/or Senate flips in November, these letters will turn into hearings, which could really slow things down at the Board. Finally, by arguing that the Board has already determined what a final joint-employer rule will look like, the letter appears to forecast a potential Administrative Procedure Act legal challenge that opponents of the traditional joint-employer standard might wield against any final rule.

OFCCP Jurisdiction Update (Again). Another week, another Office of Federal Contract Compliance Programs (OFCCP) jurisdiction update. President Trump is expected to sign the VA MISSION Act of 2018, which will overhaul the Department of Veterans Affairs' (VA) healthcare system in an effort to make it more efficient and responsive to the healthcare needs of veterans. Perhaps as one of the ways to increase efficiency, Section 107 of the Act exempts from OFCCP coverage those contractors that enter into agreements with the VA to provide hospital care, a medical service, or an extended care service.

H-2B Cap Relief. On May 25, the Department of Homeland Security (DHS) announced that it would make an additional 15,000 H-2B visas available for the remainder of Fiscal Year 2018 (i.e., through September 2018). Buzz readers may recall that DHS authorized an additional 15,000 visas for temporary nonagricultural workers last year, as well (though that decision was not made until late July of last year). While 15,000 is better than nothing, it is a fraction of the approximately 70,000 additional visas that Congress authorized in the recent omnibus spending bill and that the H-2B Workforce Coalition implored DHS to issue. In fact, The Wall Street Journal labeled the decision " miserly."

New LCA on the Way? Way back in August 2017, the Buzz discussed the Department of Labor's (DOL) Employment and Training Administration's (ETA) proposed changes to the Labor Condition Application (LCA) relating to H-1B visa holders. Those proposed changes took another step forward in the Paperwork Reduction Act approval process late last week when the ETA sent its proposal to the Office of Management and Budget. Still included in the proposed changes is the requirement that H-1B employers identify the names of clients where visa holders may be working. This requirement could obviously impact confidentiality agreements between H-1B employers and third-party clients, and raise competitiveness issues as well. Comments on the proposed changes are due on June 25, 2018.

PBGC: We're Still Broke. On May 31, 2018, the Pension Benefit Guaranty Corporation (PGBC) released its Fiscal Year (FY) 2017 Projections Report—its annual actuarial review of its future operations and financial status. Alarmingly, the report concludes that there is a 90 percent likelihood that the Multiemployer Insurance Program will run out of money by the end of FY 2025 and projects a "near certainty of insolvency by the end of FY 2026."

Kneel-Workers Trilogy. Even though the championship series are happening now in both the NBA (*yawn*) and NHL (#thesave), the NFL stole some headlines recently with regard to its new national anthem policy. Harvard Law School professor Benjamin Sachs has an interesting take on whether this new policy is an unlawful unilateral change to conditions of employment or otherwise violates the players' rights to engage in protected concerted activity.

If Walls Could Talk. Roll Call has a great video on "hideaway" offices off the Capitol floor where senators often go between votes to take a break or catch up on some work. Hideaways are more conveniently located closer to the Capitol floor and therefore, especially when back-to-back votes are scheduled, are more accessible than senators' regular offices, which are in a separate office building across the street from the Capitol. In this era of political gridlock, hideaway offices also sometimes serve as places where senators can meet to negotiate away from the glare of the public spotlight. The Buzz has had the opportunity with senators in their hideaways—most notably the expansive hideaway office of the late Edward M. (Ted) Kennedy (D-MA). Upon Kennedy's death, his hideaway office was claimed by his good friend Orrin Hatch (R-UT), who will occupy it until his retirement at the end of the year.

– Jim and Hal

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