United States: Snatching Defeat From The Jaws Of Victory (Beltway Buzz, December 21, 2018)

Last Updated: January 3 2019
Article by James J. Plunkett

Snatching Defeat From the Jaws of Victory. Many Representatives on Capitol Hill were already heading home after the Senate passed a continuing resolution this week to keep the federal government open until early February. Now, however, because the House reinserted funding for the president's desired border wall on its version of the bill, the funding issue has devolved into chaos. Thus, barring a Festivus miracle, it appears that we are heading for a partial government shutdown at midnight tonight (though this is a very fluid situation so things could change at any moment). This is why we can't have nice things.

Shutdown Impact. Because the appropriations bill funding the National Labor Relations Board (NLRB) and the U.S. Department of Labor (DOL) was signed into law, those agencies will not be impacted by a shutdown. However, the Equal Employment Opportunity Commission (EEOC) and U.S. Department of Homeland Security (which includes U.S. Citizenship and Immigration Services (USCIS)) were not funded, so their services may be impacted. In particular, E-Verify is likely to be unavailable and visa processing may be slowed. Leigh N. Ganchan and Alfred B. Robinson, Jr. have the details here. EEOC has helpful information on how it may be impacted here.

Season's Greetings (From Congress). Just within the past couple of weeks, Democrats in the U.S. Senate and House of Representatives sent letters to the DOL, House committee leaders, and an individual company concerning labor and employment matters. The letters publicly accuse three different companies of violating federal labor laws, workplace safety laws, and employment laws. The letters further condemn the employers, demand an end to the alleged violations, and request congressional and/or DOL investigations into the allegations. The Buzz expects the frequency of these types of letters to increase when Democrats get congressional subpoena authority upon taking control of the House in 2019.

Ranking Dem Issues Sexual Harassment Report. On December 19, 2018, U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) Ranking Member Patty Murray (D-WA) issued a report entitled, "'...So I Tolerated It': How Workplaces Are Responding to Harassment and the Clear Need for Federal Action." Murray's report concludes "that there is a serious need for federal action to address areas where federal support and legal protections fall short. More must be done to prevent harassment and empower workers to seek and secure justice." The report includes 14 recommendations to address workplace harassment, including eliminating the federal tipped minimum wage, extending statutes of limitations for harassment claims, expanding jurisdiction over small employers, and prohibiting mandatory arbitration and pre-employment nondisclosure agreements.

All's Well That Ends Well(ness). On December 20, 2018, the EEOC promulgated a final rule removing the incentive portions of its 2016 "wellness" regulations. The regulations governed the extent to which employers could provide incentives to employees to participate in employer-sponsored wellness programs. In 2017, the U.S. District Court for the District of Columbia ruled that the Commission acted arbitrarily by setting the incentive cap (generally speaking) at 30 percent of the cost of coverage. The court vacated those portions of the rule but stayed its mandate until January 1, 2019, so as not to upset employer plans that had been established in reliance on the rule. Thus, the Commission's final regulation is a housekeeping measure consistent with the order of the district court. According to the latest regulatory agenda, the Commission will propose new wellness regulations in June 2019.

Goodbye, Commissioner Feldblum. Speaking of the EEOC, the Senate's adjournment while failing to reconfirm Commissioner Chai Feldblum to a third term means that the two-term commissioner will be leaving the EEOC. While Feldblum was an advocate for certain policies that gave some employers heartburn (such as the Commission's 2012 guidance on employers' use of criminal background check information, as well as its 2016 revisions to the EEO-1 form), she is a straight-shooter and an unrivaled expert on equal employment opportunity (EEO) law, so the Senate's failure to confirm her is a disappointment.

Commission Without a Quorum. With Feldblum gone, Acting Chair Victoria A. Lipnic and Commissioner Charlotte Burrows will be the sole attendees at any Commission holiday party that might be happening this weekend. This is not enough for a quorum at the Commission. However, because the Commission has delegated much of its enforcement authority to the general counsel, the day-to-day operations of the EEOC (case intake, investigations, most litigation, etc.) will continue apace. On the other hand, the Commission will not have the authority to issue regulations, guidance documents, and the like.

Nominations Expire. Commissioner Feldblum wasn't the only nominee left waiting at the altar this week. The Buzz has been monitoring the status of nominees like Mark Gaston Pearce (nominated to be an NLRB member), Scott Mugno (nominated to be assistant secretary for the Occupational Safety and Health Administration (OSHA)), Cheryl Stanton (nominated for Wage and Hour Division (WHD) administrator), Sharon Fast Gustafson (nominated to be EEOC general counsel), Janet Dhillon (nominated to be EEOC chair), and Daniel Gade (nominated to be EEOC commissioner). Because none of these nominees were confirmed before the Senate adjourned, their nominations have expired. They will need to be renominated (if they are still interested) in the next Congress.

Goodbye, Senator Hatch. As this congressional term winds to a close, some well-known lawmakers are saying goodbye to Washington, D.C. One of the most notable retirements is that of Senator Orrin Hatch (R-UT), the seven-term senator from Utah. In particular, the Buzz will remember the role that Senator Hatch played in the 1978 labor law reform debate. Late last week, the humorous 84-year-old Hatch looked back on his early days in Congress.

Injury and Illness Reg at OIRA. Last week, OSHA sent to the Office of Information and Regulatory Affairs (OIRA) its draft final rule on tracking of workplace injuries and illnesses. Once OIRA completes its review, it will transfer the regulation back to OSHA, which will then publish a final version of the rule. The problem is that the draft final rule that OSHA sent to OIRA is not available to the public, nor do we know how long OIRA will take to review the rule (it could be a few weeks or several months). The most recent regulatory agenda has the final rule scheduled to appear in June 2019, so the Buzz is wondering if OSHA may be ahead of schedule with this one.

There's a Post Office Over Yonder; That's Where My Baby Stays. The Senate recently passed a resolution naming a U.S. Postal Service location after guitar legend Jimi Hendrix. Postal customers and Hendrix fans alike will have to fight their way through crosstown traffic to find the post office, which is located at 4301 NE 4th Street in Renton, Washington. Presumably, there will be a little wing of the building dedicated to the guitar great.

The Buzz will be off next week but will return on January 4. Happy holidays!

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