United States: Stanton Confirmed As WHD Administrator (Beltway Buzz, April 12, 2019)

Last Updated: April 16 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.

Stanton Confirmed as WHD Administrator. On April 10, 2019, the U.S. Senate voted to confirm Cheryl Stanton as wage and hour administrator. Stanton, who was originally nominated in September 2017, takes the helm of the U.S. Department of Labor's Wage and Hour Division at a time when it has three major proposals out for public comment: overtime, " regular rate," and joint employer. This will require Stanton to hit the ground running, but the Buzz is sure that she will be up to the task.

EEO-1 Update. On April 8, 2019, the plaintiffs who successfully challenged the Office of Management and Budget's (OMB) stay of the Equal Employment Opportunity Commission's (EEOC) 2016 wages and hour worked collection effort filed their objection to the EEOC's plan to restart the data collection process. They requested the court to issue an order that, among other things, would require employers to submit Component 2 data (wages and hours worked) by May 31, 2019; require the OMB to extend the legal life of the EEO-1 form beyond its current September 30, 2019, expiration date; and require the EEOC to develop a plan to extract 2017 data from employers. Of course, May 31 is the current due date for employers to submit Component 1 data only because of the longest federal government shutdown in history. The original due date was March 31, just a few weeks after the court's decision to lift the stay.

EEOC Enforcement Statistics. Speaking of the EEOC, earlier this week it released its enforcement and litigation statistics for fiscal year (FY) 2018 (October 2017 through September 2018). Retaliation continued to be the most frequently filed charge, appearing in just over half of all charges filed. Additionally, there was an almost 14 percent uptick in sexual harassment charges.

More Equality Act News. In recent weeks, the Buzz has been tracking the Equality Act's movement in the U.S. House of Representatives. On April 9, 2019, the House Subcommittee on Civil Rights and Human Services held a hearing on the bill. The National Association of Manufacturers testified in support of the bill, stating, "[M]anufacturers have known for years that an inclusive workplace with meaningful LGBT protections helps them hire and retain the best possible workforce" and that a uniform federal approach "would give certainty to employees who may wish to move from one facility location to another, as well as reliable rules for employers." As we've previously noted, the House is likely to vote on the Equality Act sometime this spring.

Anti-Harassment Bill Drops. Senate and House Democrats this week introduced the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act (BE HEARD Act). While text of the bill is not yet available, it would make dramatic changes to existing federal employment law. For example, the BE HEARD Act proposes to do the following:

  • Eliminate the tipped minimum wage
  • Eliminate caps on compensatory and punitive damages
  • Extend the statute of limitations for discrimination claims from 180 days to four years
  • Replace the "severe and pervasive" standard for workplace discrimination with a prescribed list of factors for describing workplace harassment
  • Prohibit pre-dispute arbitration and nondisclosure agreements, and create "guardrails" for post-dispute arbitration and nondisclosure agreements
  • Codify President Obama's Fair Pay and Safe Workplaces executive order

Often in Congress, the bigger the bill, the bigger the opposition. Consequently, the Buzz thinks that the BE HEARD Act may have a tough time gaining traction in the Republican-held Senate.

Immigration News. It was a busy week for immigration policy nerds:

  • The departures of secretary Kirstjen Nielsen and other top officials from the U.S. Department of Homeland Security this week have many wondering if similar personnel changes may be in store at U.S. Citizenship and Immigration Services (USCIS). So far, there is no news. The Buzz tries to avoid reporting on personnel and policy rumors, but suffice it to say that we are monitoring this situation closely.
  • Late last week, USCIS announced that it "has received a sufficient number of petitions projected as needed to reach the congressionally-mandated 65,000 H-1B visa regular cap for fiscal year 2020." Next, USCIS will determine whether it will meet the 20,000-H-1B visa master's cap (which is unrelated to the Masters jacket).

Margaret Chase Smith. On April 8, 1940, Representative Clyde Harold Smith of Maine died in office at the age of 63. Less than two months later, Smith's widow, Margaret Chase Smith, won a special election to serve the remainder of her husband's unexpired term. With this victory, Margaret Chase Smith became the first woman elected to Congress from Maine. But Smith didn't stop there. She was subsequently reelected to the House four times before winning a seat in the Senate in 1948. Smith became the first woman to represent Maine in the Senate and the first woman to serve in both houses of Congress. She won three more Senate races and served the state of Maine as Senator from 1949 to 1973. In 1964, Smith became the first woman to have her name be placed in nomination for the presidency at a major political party's convention. Smith was awarded the Presidential Medal of Freedom by President George H.W. Bush in 1989 and died six years later at the age of 97. Smith had quite a career, and in some ways, it started 79 years ago this week.

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