United States: 2019 Ushers In The 116th Congress (Beltway Buzz, January 4, 2019)

Last Updated: January 9 2019
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.


2019 Ushers in the 116th Congress. Happy 2019 from Washington, D.C., where January 3 marked the start of the 116th Congress (now under new management). As the Buzz has discussed in recent weeks, Representative Bobby Scott (D-VA) will chair the U.S. House of Representatives Committee on Education and Labor. Scott will undoubtedly use his new authority to scrutinize policymaking at the National Labor Relations Board (NLRB) and the Department of Labor (DOL), as well as to further legislative debates on matters such as the minimum wage, paid leave, and sexual harassment. On the other hand, the Republican-led Senate will likely continue to focus on nominations, many of which expired with the adjournment of the 115th Congress. The Buzz looks forward to keeping its readers up to date on these important issues as the new Congress gets underway.

(By the way, perhaps due to bouts of "tinsel"-itis and holiday fever, the December 21, 2018, issue of the Buzz jumped the gun a bit in commenting on the congressional recess and its impact on nominees, Senator Orrin Hatch (R-UT), and Equal Employment Opportunity Commission Commissioner Chai Feldblum. Technically, President Trump's nominations and both Hatch's and Feldblum's terms expired at noon on January 3, 2019, when the 115th Congress adjourned sine die, not when Congress recessed for the holidays.)

Shutdown Sideshow. Obviously, the foremost issue for Congress is the ongoing partial government shutdown, now in its 14th day (Buzz readers will recall that the bill providing funding to the DOL and NLRB has been signed into law, so those agencies continue to operate). Of the 21 shutdowns that have occurred since 1976, the current one is the fourth longest, while the longest shutdown was for 21 days in 1995. On January 3, 2019, the House of Representatives passed two bills that would reopen the government, but as of this writing, they have not been taken up by the Senate. Such discord at the start of a new year and a new Congress is bad news for anyone optimistic about potential legislative compromise in the new year.

More Joint-Employment Confusion. On December 28, 2018, just as the Buzz was switching from eggnog to champagne, the United States Court of Appeals for the D.C. Circuit issued a surprise decision in the appeal of the NLRB's 2015 Browning-Ferris Industries case. While the decision ultimately holds that Browning-Ferris was not a joint employer, it upheld "the Board's articulation of the joint-employer test as including consideration of both an employer's reserved right to control and its indirect control over employees' terms and conditions of employment." Mark G. Kisicki and Elizabeth M. Soveranez have the details. For employers, the ultimate problem with Browning-Ferris can be boiled down to two words: confusion and uncertainty. Unfortunately, the court's decision does little to clarify the situation.

Labor Arbitration News. Late last week, NLRB General Counsel Peter Robb issued a memorandum clarifying the Board's standard for when to defer unfair labor practice charges to the arbitration process. This area of the law is complex, and Robb's memo follows suit. However, the bottom line is that Robb's memo clarifies that the Board's 2014 decision in Babcock & Wilcox Construction Company, as well as a subsequent general counsel memo, does not apply to cases that may be deferred under Dubo Manufacturing Corporation (where the grievance-arbitration process has already been initiated).

Meet the New Boss, Same as the Old Boss. On December 26, 2018, Craig Leen was named director at the Office of Federal Contract Compliance Programs (OFCCP). Leen previously had been the acting director of OFCCP since July 2018. During Leen's tenure as acting director, the agency took several proactive steps to increase transparency and accountability at the agency, including issuing directives regarding compensation investigation practices and instituting an opinion letter process.

H-1B Comment Period Closes. January 2, 2019, marked the due date for submission of comments in response to United States Citizenship and Immigration Services' proposal to require electronic preregistration of H-1B visa petitioners.

Back to School. This week, the House of Representatives unveiled an expanded day care facility to serve both lawmakers and staff. The 26,000-square-foot facility is intended to address a significant demand and to help retain talented staffers. While the day care center is initially open to just infants and toddlers, the Buzz thinks that in light of the shutdown, some members of Congress should consider enrolling in order to relearn fundamental lessons such as how to share and how to play nicely with others.   

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.

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