United States: September To Remember (Beltway Buzz - September 7, 2018)

Last Updated: September 10 2018
Article by James J. Plunkett and Harold P. Coxson

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.

September to Remember. Congress returned this week, and Capitol Hill policymakers are girding themselves for a busy month of September. Indeed, October 1—the start of the new fiscal year—looms large, so Congress will have just a few weeks to pass a spending package in order to avoid a government shutdown. October 1 is also the start of the Supreme Court's 2018 term, and Republicans will try fervently to get Judge Brett Kavanaugh confirmed and seated in time for the first day of the term (more on this below). It's shaping up to be a frantic few weeks in D.C.

Last Week, This Week. There was no shortage of labor and employment policy news while the Buzz was on vacation last week. Of course, we want to make sure that our readers remain well informed, so here is a quick rundown of last week's labor policy highlights (or lowlights):

  • President Trump renominated Mark G. Pearce for a third term on the National Labor Relations Board (NLRB). While the business community strongly opposes the move for the reasons we've previously discussed, Pearce's nomination is supposedly part of a larger package deal in the Senate that would clear at least some of the current nominee logjam. At this time, there is no word on which nominees might be included in the package.
  • Speaking of the NLRB, it extended until September 5, 2018, the deadline by which stakeholders must submit comments in Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino. In Caesars, the Board has solicited public input on "whether the Board should adhere to, modify, or reject the legal standard set forth in Purple Communications, 361 NLRB 1050 (2014), regarding rules or policies governing the permissible uses of employer email systems."
  • The Office of Federal Contract Compliance Programs (OFCCP) announced an overhaul of its process for investigating compensation discrimination, as well as a new directive intended to ensure that federal contractors have complied with their annual affirmative action program requirements.
  • The Department of Labor (DOL) announced the formation of the Office of Compliance Initiatives (OCI) to "promote greater understanding of federal labor laws and regulations."
  • The DOL's Wage and Hour Division (WHD) issued six new opinion letters.
  • The WHD also announced that it would conduct five listening sessions to solicit feedback regarding potential revisions to the overtime regulations of the Fair Labor Standards Act.
  • United States Citizenship and Immigration Services (USCIS) extended its temporary suspension of premium processing for cap-subject H-1B petitions.
  • President Trump issued an executive order instructing the labor and treasury secretaries to examine ways to make it easier for U.S. workers to access workplace retirement plans.

Hearing Histrionics. As for this week's events, Judge Kavanaugh's confirmation hearings undoubtedly took center stage. Back in July, the Buzz forecasted that the process for confirming Kavanaugh to the Supreme Court would be both contentious and ridiculous. While we weren't exactly going out on a limb, the Senate Judiciary hearings this week nevertheless confirmed our prediction. For example, the hearing featured scores of protestors who were removed and arrested, including one minor celebrity and some onlookers who viewed Kavanaugh's nomination as a harbinger of a dystopian future. As an indication of the media frenzy, during the lunch break on the second day of the hearings, one television media outlet had nine analysts dissecting Kavanaugh's performance. We think we even saw Lee Corso on the panel. But seriously, though, at the time of publication, all of this seems to be a lot of tilting at windmills, since it is still expected that Kavanaugh will eventually be confirmed by the Senate (particularly now that Sen. Jon Kyl (R-AZ), who has been appointed to fill the late John McCain's seat, returns Senate Republicans to a two-vote "buffer" at 51–49).

New Joint-Employer Legislation Introduced. On September 4, Reps. Steve Chabot (R-OH) and Henry Cuellar (D-TX) introduced the Trademark Licensing Protection Act of 2018. The bill would amend federal trademark law to ensure that establishing, controlling, or enforcing trademark standards does not establish a joint-employment relationship.

Back to the Future. D.C. is nothing if not a town of proposals, reports, studies, plans, and white papers. Labor policy is not immune to this phenomenon, as this week multiple Democratic representatives released a study titled "The Future of Work, Wages, and Labor." While the report is a bit ambiguous as to its thesis, it appears to address concerns regarding the potential impact of technology on jobs and workers. In addition to the usual wish list flimflam, the report advocates for overturning Citizens United v. Federal Election Commission, strengthening antitrust laws (including banning noncompete agreements), limiting executive pay, authorizing works councils, instituting industry-wide or sectoral bargaining, banning pre-dispute arbitration agreements, and having the federal government serve "as an employer of last resort." As the Buzz has noted previously, while these ideas are unlikely to gain traction at this time, they provide insight into the preferences of policymakers who may be in different positions of authority in the future.

Dorsey's Day. In any other non-Kavanaugh week, the big D.C. news would have been Twitter Chief Executive Officer Jack Dorsey and Facebook Chief Operating Officer Sheryl Sandberg's testifying before the U.S. Senate Select Committee on Intelligence on Russian election interference. Being much cooler and hipper than the Buzz, Dorsey of course read his testimony off his phone while tweeting it out simultaneously. Not surprisingly, this was apparently the first live-tweeted testimony in congressional history. Dorsey then headed over to testify before the U.S. House Committee on Energy and Commerce, where a protestor was drowned out by Rep. Billy Long (R-MO), a former auctioneer. Just an average day in Washington, D.C., we suppose.

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