United States: See Ya Later, Persuader. (Beltway Buzz, July 20, 2018)

Last Updated: July 23 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.

See Ya Later, Persuader. It took more than eight years, but the U.S. Department of Labor's (DOL) persuader rule has finally been rescinded. Proposed just one day prior to the National Labor Relations Board's (NLRB) 2011 ambush elections proposal, the persuader rule would have required employers and their attorneys or consultants to publicly disclose agreements they entered into regarding labor relations matters. Of course, the rule—which was finalized in April 2016—never went into effect as it was permanently enjoined in November 2016. The DOL offered several reasons for rescinding the 2016 interpretation including the fact that it impermissibly required reporting of activity that plainly constitutes "advice," which is explicitly protected from reporting under the Labor-Management Reporting and Disclosure Act. This being Washington, D.C., however, the persuader reporting concept will never truly be dead, as it lives on in proposed legislation that the Buzz has recently discussed: the Workplace Democracy Act and the Workers' Freedom to Negotiate Act. But that's another story . . .

Labor Veteran at OLMS. The individual who "signed" the persuader rescission is Arthur F. Rosenfeld, the newly minted director of the DOL's Office of Labor-Management Standards (OLMS). Rosenfeld is well-known to labor law wonks, having served as general counsel at the NLRB, among other high-profile positions. Rosenfeld's friend, Harold P. Coxson, has the details on what's ahead for Rosenfeld at OLMS.

USCIS Memo on H-1B Denials. The U.S. Citizenship and Immigration Services (USCIS) recently issued a new policy memorandum that rescinds and replaces a 2013 policy memorandum on the use of requests for evidence (RFE). The new memo "restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID [notice of intent to deny], when appropriate." In short, the memo gives more power to USCIS bureaucrats to deny H-1B applications or extensions. The memo is another way, pursuant to President Trump's "Buy American and Hire American" executive order, the administration is looking to reform the H-1B visa program through subregulatory actions (rather than via the legislative process).

Kavanaugh Update. Senator Tom Carper (D-DE) has evidently changed his position on Brett Kavanaugh.

EMPOWER-ing Employees. House lawmakers this week introduced the "Ending the Monopoly of Power Over Workplace Harassment through Education and Reporting (EMPOWER) Act." Text of the bill is not yet available, but assuming that the bipartisan bill tracks its companion bill in the Senate, it would make it unlawful for "an employer to unilaterally include a nondisclosure clause or a nondisparagement clause that solely benefits the employer in a separation or settlement agreement." Among other provisions, the bill would also require employers to disclose in their annual Securities and Exchange Commission (SEC) filings: (1) whether any awards or judgments were entered against it during the year regarding workplace harassment claims; (2) the number of workplace harassment settlements entered into during the year; and (3) the amounts of those settlements or judgments. Like current legislative efforts to limit predispute arbitration agreements, the EMPOWER Act is clearly a response and outgrowth of the #MeToo movement. While the Buzz doesn't expect any immediate activity on the EMPOWER Act, we will be monitoring how the November elections could impact its chances.

The Heat Is On. Earlier this week, scores of worker advocates and health groups filed a petition with the Occupational Safety and Health Administration (OSHA) requesting that the agency adopt a national heat stress standard. Among the backers of the petition is David Michaels, who served as assistant secretary for OSHA in the Obama administration. As the Buzz discussed recently, a case is currently pending before the Occupational Safety and Health Review Commission regarding OSHA's application of the general duty clause to heat exposure. OSHA is still without a Senate-confirmed assistant secretary and already has a lot on its plate (e.g., injury and illness recordkeeping, silica, beryllium, etc.), so the Buzz thinks that the petition—regardless of its merits—faces an uphill climb.

RIP, Ann Hopkins. Civil rights pioneer Ann Hopkins passed away this week. A top performer at a major accounting firm, Hopkins sued when she was passed over for a partnership position. Her case went all the way to the Supreme Court, which established two significant tenets of discrimination law. First, the Court held that gender stereotyping is a form of sex discrimination. Second, a plurality of the Court set forth a new burden-shifting test that provided employers with a defense when they could demonstrate that they would have made the same employment decision even in the absence of discrimination. This "mixed motive" defense was largely codified in the Civil Rights Act of 1991. While maybe not necessarily a household name, Hopkins's impact on workplace discrimination law and policy is immeasurable.

Big Man, Pig Man (Charade You Are). Earlier this week, Citizens Against Government Waste released its 2018 Congressional Pig Book—its annual examination of the federal government's pork-barrel spending. Some fun examples of "pork" in recent appropriations packages include the following:

  • $663,000 for a brown tree snake eradication program in Guam, which presumably can buy a lot of Tylenol-laced dead mice;
  • $65,000,000 for Pacific coastal salmon recovery—a 333.3 percent increase from the $15 million last earmarked in fiscal year 2015; and
  • $16,700,000 for the East-West Center in Hawaii, secured entirely by Senator Brian Schatz (D-HI), who sits on the Senate appropriations committee.

Among those lawmakers who attended the launch of the Pig Book was Senator Jeff Flake (R-AZ), who attempted to get a selfie with one of the book's mascots.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions