United States: The Nomination Game (Beltway Buzz, February 22, 2019)

Last Updated: March 4 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.

The Presidents' Day holiday (more on this below), a snow day for the federal government, and Congress being out of town resulted in a slow week on the labor and employment policy front. Nonetheless, here are a few things that we've been tracking this week.

The Nomination Game. Though the U.S. Senate is in recess, it gaveled in and out several times this week for sessions that lasted little more than a few seconds. What gives? Well, with scores of vacancies still remaining at executive branch agencies, it is likely that neither Senate Minority Leader Chuck Schumer (D-NY) nor Speaker of the U.S. House of Representatives Nancy Pelosi (D-CA) (see U.S. Constitution, Article I, Section 5, Clause 4) permitted the Senate to recess in order to prevent President Trump from making recess appointments to those vacancies. As the Supreme Court of the United States stated in Noel Canning, "Three days is too short a time to bring a recess within the scope of the [Recess Appointments] Clause."

Wage and Hour Guidance Issued. On February 15, 2019, the U.S. Department of Labor's (DOL) Wage and Hour Division (WHD) issued two Field Assistance Bulletins (FABs):

  • FAB No. 2019-2 concerns tipped employees. It provides further guidance on the WHD's November 2018 opinion letter that eliminated the 80/20 rule. Obviously, this FAB should be of particular interest for employers in the hospitality and service industries.
  • FAB No. 2019-1 concerns payments of subminimum wages to workers with disabilities, which is permitted under certain conditions pursuant to Section 14(c) of the Fair Labor Standards Act (FLSA).

Interestingly, the Raise the Wage Act would eliminate both the tip credit and subminimum wage.

H-1B Speedup Available Again. On February 18, 2019, United States Citizenship and Immigration Services (USCIS) renewed premium processing for certain H-1B petitions. Melissa Manna and Stephen H. Smalley have the details on this fast-track process.

Regulatory Review. This lull in the breakneck pace of labor and employment policy developments gives us a chance to review the regulatory landscape to see what might be heading our way as we head into warmer months.

  • The DOL's overtime proposal was sent to the Office of Information and Regulatory Affairs (OIRA) for review on January 16, 2019. Upon OIRA's approval—which could come any day now—the Buzz expects the DOL to issue a notice of proposed rulemaking tout suite. Due to the lengthy rulemaking process, the administration will need to move quickly in order to ensure that any overtime changes are finalized before the 2020 election.
  • Regular Rate. A corollary to the overtime proposal, the regular rate proposal is intended to update current regulations in order to account for how modern forms of compensation or benefits should be included (or excluded) in the regular rate for purposes of calculating overtime. This proposal went to OIRA on January 23, 2019.
  • Joint Employer (DOL). In the regulatory agenda issued in October 2018, the WHD noted that it planned to issue by December 2018 a proposal to update its joint-employer regulations under the FLSA to "provide clarity to the regulated community and thereby enhance compliance." Obviously, the proposal has not issued yet, so the business community is growing anxious for the reason mentioned above.
  • Comments closed in late December 2018 on the Employee Benefits Security Administration's proposals to increase usability of health reimbursement arrangements and to expand the availability of multiple employer plans (MEPs). Now we are just waiting on the final rules.
  • Joint Employer (NLRB). The Buzz has been writing about this issue extensively over the last few weeks. The comment period on this proposal closed on February 11, 2019. This is just a hunch, but the Buzz is guessing that we could see a final rule by the fall of this year.
  • Ambush Elections. Its's been well over one year since the National Labor Relations Board (NLRB) asked the regulated community if it should retain, modify, or rescind its 2015 changes to its union election procedures. Since the comment period closed on this request for information in the spring of 2018, Board Chairman John F. Ring has indicated that any changes are likely to occur in piecemeal, rather than comprehensive, fashion. Ring further indicated that an initial proposal could issue this winter.
  • Immigration (H-4 EAD). The proposal to rescind a 2015 rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants arrived at OIRA on February 20, 2019. Depending on how long OIRA's review lasts, this proposal could be issued very soon.
  • After being instructed by a federal judge to redo its 2016 Americans with Disabilities Act and Genetic Information Nondiscrimination Act of 2008 regulations concerning incentives to participate in employer-sponsored wellness programs, the Equal Employment Opportunity Commission (EEOC) is forecasting new proposals by June of this year. However, the EEOC currently lacks a quorum (this would prohibit rulemaking), and there is no indication that this will change anytime soon. Consequently, the Buzz predicts that it may take a bit longer for the Commission to issue its proposals.

As you can see from this overview, the next few months might be a prime window for movement of several proposed and final rules.

Washington's Birthday. Those of you who got a great deal on a brand-new mattress this weekend know that this past Monday was Presidents' Day. However, the celebration in its current form is a relatively recent phenomenon. The holiday originally began as a tribute to President George Washington one year after his death in 1799 and was celebrated on the anniversary of his birthday: February 22. The annual tradition known as Washington's Birthday was eventually codified pursuant to a law signed by President Rutherford B. Hayes in 1879. All was well and good for about 100 years, until the Uniform Monday Holiday Act, which took effect in 1971, moved Washington's Birthday to the third Monday of February. During the debate of this bill, a proposal was floated to combine Abraham Lincoln's birthday remembrance with Washington's, but the proposal was dropped. However, this idea, combined with the fact that the third Monday of February falls between Lincoln's and Washington's birthdays (Lincoln was born on February 12), led many to start referring to the holiday as Presidents' Day. Marketers and many state governments followed suit, and while the federal holiday is still officially Washington's Birthday, it is now colloquially referred to as Presidents' Day.

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
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please 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