United States: Top DOL Official To Depart (Beltway Buzz, May 17, 2019)

Last Updated: May 21 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.


Top DOL Official to Depart. This week the U.S. Department of Labor (DOL) announced that Chief of Staff Nicholas Geale will resign his position effective May 31, 2019. Geale is a veteran of the D.C. labor policy debates, having previously served as a member of the National Mediation Board, as an official in the Elaine Chao DOL, and as a staff member of the U.S. Senate Health, Education, Labor and Pensions Committee. Accordingly, his departure will likely have a significant impact on the substance and pace of the DOL's policy agenda. Indeed, Geale's exit comes at a time when the agency is racing to finalize high-profile rulemakings and fend off legal challenges to other rules, all while facing increased scrutiny from House Democrats.

OSHA Nominee Withdraws. In another personnel blow to the DOL, this week Scott Mugno withdrew his nomination to be assistant secretary for the Occupational Safety and Health Administration (OSHA). (John F. Martin has the details here.) Mugno had been waiting since late October 2017 to hear his name called. Deputy Assistant Secretary Loren Sweatt continues to run the agency as the top political appointee. No word yet on when the White House might advance a new nominee.

WHD Reg Deadlines Extended. Speaking of high-profile rulemakings, as Buzz readers are well aware, we are tracking three significant rulemakings pending in the DOL's Wage and Hour Division (WHD): proposed changes to the overtime regulation, proposed changes to the definition of "regular rate" for purposes of calculating overtime, and proposed changes to the Fair Labor Standards Act's joint-employer regulation. On May 14, 2019, the WHD announced that the due date for submission of comments in response to its joint-employer proposal has been extended from June 10 to June 25. On the same day, the WHD also announced that the comment deadline on its regular rate proposal has been extended from May 28 to June 12. This modest extension should allow commenters to relax just a bit while probably having little impact on the timing of any final rules.

NLRB GC Office Opines on Gig Workers. On May 14, 2019, the National Labor Relations Board's (NLRB) Division of Advice issued a memorandum holding that "drivers providing personal transportation services using . . . app-based ride-share platform[s]" were independent contractors. In part, the memorandum reached this conclusion by noting that the app-based system "afforded drivers significant opportunities for economic gain and, ultimately, entrepreneurial independence." The advice memorandum follows on the heels of a similar opinion letter from the DOL, which found that service providers using a "virtual marketplace company" were independent contractors.

OSHA Finalizes Changes to Safety and Health Standards. On May 14, 2019, OSHA finalized its fourth rule under its Standards Improvement Project, which is designed to "increase understanding and compliance . . . improve employee safety and health, and save employers an estimated $6.1 million per year." The rule makes 14 revisions to OSHA's recordkeeping, general industry, maritime, and construction standards that were confusing or outdated. The Buzz's favorite change is the removal of the term "feral cats" from the definition of "vermin" in the shipyard standards. The final rule states that "OSHA does not believe that removing the term 'feral cats' from the definition will reduce worker health and safety, and notes that feral cats may help reduce the presence of vermin." OSHA declined to make any changes to the "lockout/tagout general industry standard, personal protective equipment fit in construction, the excavation construction standard, or the decompression tables in the underground construction standard."

DOL Issues More AHP Guidance. The Buzz has been tracking the development of the DOL's association health plan (AHP) rule, the attendant litigation and appeal, and the DOL's response. In a guidance document issued on May 13, 2019, the DOL provided further clarification on the status of association health plans in light of ongoing litigation. The DOL reemphasized that it "will not pursue enforcement actions against parties for potential violations stemming from actions taken before the district court's decision in good faith reliance on the AHP rule's validity." The guidance further states that "AHPs formed under the Department's pre-rule sub-regulatory guidance (sometimes referred to as 'Pathway 1 AHPs') are unaffected by the district court's decision."

RIP, Alice Rivlin. Dr. Alice Rivlin died this week at the age of 88. Though perhaps not a household name, Rivlin played an outsized role in Washington, D.C.'s policy debates for decades. An economist by trade, Rivlin cut her teeth working on the Marshall Plan in post–World War II Paris, and in 1975 she became the founding director of the Congressional Budget Office (CBO), which provides budget and economic analyses to Congress. In 1994, she became the first woman to run the White House's Office of Management and Budget and subsequently served as a governor of the Federal Reserve Board from 1996 to 1999. Many policy wonks credit Rivlin with setting the CBO on its course of independence and respectability, allowing the number-crunching office to have an enormous influence on matters such as defense spending, healthcare, taxes, and agriculture. Thank you, Dr. Rivlin.

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