United States: Congress Returns (Beltway Buzz, November/16/2018)

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.


Congress Returns. While New York has an awesome duck, Washington, D.C., has a lame duck. Yes, Congress returned this week for its post-election lame-duck session. Both the U.S. House of Representatives and Senate are scheduled to be in session until December 14, 2018 (with the week of Thanksgiving off), but that targeted adjournment date can always be moved up or extended. So what's on tap for the four-week race to the end of this session of Congress? Appropriations will be perhaps the most significant issue, as a portion of the federal government's funding runs out on December 7, 2018. There are also rumors that Congress could explore criminal justice reform. In the labor and employment space, there could be activity on retirement policy regarding both individual retirement plans and multi-employer pension plans. Finally, the Senate will likely continue to focus on nominations to the federal bench and executive branch agencies.

Preview: 116th Congress. In case you thought you read all of the 2018 midterm election postmortems, think again. At least at the Buzz, we will keep it short and limited to labor and employment policy implications. Here is our take of what to expect from the 116th Congress in 2019:

  • In the Senate, look for Republicans to continue to push for confirmation of executive branch nominees and federal judges. In the first two years of the Trump administration, Republicans have confirmed 31 federal court judges (including Supreme Court Justices Neil Gorsuch and Brett Kavanaugh), which already represents a significant and sweeping change to the federal bench. Labor and employment legislative activity will likely be very minimal.
  • In the House, Democrats will control the House Committee on Education and the Workforce Labor. As the presumptive chairman, Rep. Bobby Scott (D-VA) may push a legislative agenda that includes issues such as paid leave, sexual harassment and arbitration, minimum wage, and pay equity. Look for intense oversight of the Department of Labor (DOL) and the National Labor Relations Board (NLRB) as a means to shine a light on their policy agendas and as a tool to slow those agendas down. Finally, don't be surprised if private-sector employers receive letters from Scott inquiring about corporate diversity, anti-harassment efforts, pay equity, or other matters.
  • The divided government means—wait for it—more gridlock in Congress. Shocking, right? Gridlock doesn't slow down executive branch agencies, though, so look for some regulatory activity in 2019, such as a proposed overtime rule from the DOL and a final joint-employer rule from the NLRB. On the other hand, gridlock creates a policy vacuum, and state and local lawmakers will likely continue to fill this vacuum on issues like sexual harassment, paid leave, and pay equity.

NLRB Elections, Joint-Employer News. Late last week, Bloomberg BNA broke some interesting news regarding two major labor policy issues: the NLRB's pending rulemaking on its ambush election rules, as well as the current joint-employer proposed rule. The information was gleaned from a speech Chairman John F. Ring gave at the American Bar Association's Labor and Employment Law Conference in San Francisco, California.

  • Ambush elections: Significantly, Ring stated we might see a proposal on ambush election regulations as early as this winter (the most recent regulatory agenda indicated that such a proposal would not be released for at least one year). Ring further commented that the Board is likely to issue piecemeal proposals on various aspects of the regulations, rather than one comprehensive rule. Substantively, Ring singled out blocking charges and the Board's voluntary recognition bar as matters that would be addressed by the proposal.
  • Joint employer: Bloomberg further reports that at the same meeting, Ring confirmed that Member William Emanuel has been cleared by NLRB ethics officials to participate in its ongoing joint-employer rulemaking.

DOL Issues Guidance on Tipped Employees. On November 8, 2018, the DOL's Wage and Hour Division (WHD) issued four new opinion letters. Perhaps the most significant letter (at least to those in the hospitality industry) is a reissuance of a 2009 letter that effectively scraps the WHD's "80/20 rule" regarding tipped employees. Tracy A. Miller has the details.

Reg Czar Tapped for Promotion. Earlier this week, President Trump nominated Office of Information and Regulatory Affairs (OIRA) Administrator Neomi Rao to fill Justice Kavanaugh's seat on the D.C. Circuit Court of Appeals. We normally don't report on specific judicial nominations, but this one is important for a couple of reasons. First, the judicial vacancy is a significant one, as the D.C. Circuit is often considered the second-most-powerful federal court in the country. Second, the nomination means that President Trump will obviously need to appoint a new OIRA administrator (assuming Rao is confirmed). While this may seem like an obscure position, it is immensely influential in federal policymaking. OIRA functions as the government's regulatory gatekeeper, and its administrator is its de facto "regulatory czar." With potential rulemaking activity mentioned above (not to mention a final Occupational Safety and Health Administration (OSHA) injury/illness reporting regulation, the DOL's own joint-employer proposal, etc.), whoever is chosen as Rao's successor could play an important role in shaping future labor and employment regulations.

Patient Lifts Comment Period Extended. We previously discussed the WHD's notice of proposed rulemaking that would allow 16- and 17-year-olds to operate patient lifts in healthcare settings. Earlier this week, the WHD extended the public comment period by 15 days. Comments were originally due on November 26, 2018, and the new due date is now December 11, 2018.

Happy Franksgiving. The Buzz won't publish next week due to the Thanksgiving holiday, and we're excited not just for the opportunity to spend time with family, but also because, unlike Americans from 1939 to 1941, we are certain that next Thursday is actually Thanksgiving Day. Huh? Well, from the presidency of Abraham Lincoln all the way to 1939, Thanksgiving was celebrated on the last Thursday of November. However, in 1939, during the Great Depression, President Franklin Roosevelt ordered that Thanksgiving be moved to the fourth Thursday of November in order to provide consumers and retailers an extended holiday shopping season (there were five Thursdays in November 1939). As this article reveals, all sorts of anger, confusion, and political discord ensued. In 1941, Congress stepped in to officially establish the fourth Thursday of November as Thanksgiving Day.

As a public service to our readers, we will leave you with these helpful turkey-cooking tips from former House speaker John Boehner. While the Buzz prefers the ease, texture, and flavor of a dry brine, to each his own. Happy Thanksgiving!

The Buzz will be off next week for the holiday. We will return on November 30.

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