Policy Matters Newsletter

Policy Matters - Presented by Seyfarth's Government Relations and Policy Group
     
 

Welcome to our Policy Matters Newsletter

Our Government Relations and Policy Group is excited to offer regular updates regarding the actions of Congress, administrative agencies, and other lawmakers at the federal, state, and local levels. Comprised of Seyfarth attorneys with government relations and policy experience, the team will develop solutions for clients and provide ongoing education and advocacy on policy issues. 
 

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August 1, 2019

by Randy Johnson and Alex Passantino

Senate Confirms EEOC Nominees. On July 30, the Senate Health, Education, Labor and Pensions Committee approved current EEOC Commissioner Charlotte Burroughs for a second term to a Democrat seat, and Sharon Gustafson as the agency's general counsel. Burroughs was approved 23-0; Gustafson’s vote was 13-10. The full Senate confirmed both by unanimous consent earlier today. The remaining Republican nominee to the Commission, Keith Sonderling (who currently serves as the Deputy Administrator of the Wage & Hour Division), is still pending.

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July 25, 2019

by Randy Johnson and Alex Passantino

Scalia to Replace Acosta as Secretary of Labor.  Last week, President Trump tweeted his intent to nominate Eugene Scalia as Secretary of Labor.  Scalia served as Solicitor of Labor in the George W. Bush administration and has been in private law practice, focusing on labor, employment, and administrative law, since leaving the administration in 2003.  With a crowded Senate calendar, a long August recess, and the fact that he has not yet actually been nominated, we expect September will be the earliest we see Scalia confirmed to the Cabinet.

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July 18, 2019

by Randy Johnson and Alex Passantino

Minimum Wage Bill Passes House . . .  Today, the Raise the Wage Act (H.R. 582) passed the House 231-199.  The Act would raise the federal minimum wage to $15 per hour over a five-year period, then annually index the minimum wage to the percentage increase in the median hourly wage for all employees.  It would also (1) increase the tipped employee wage by no more than $1.50 per year until it equals the minimum wage (a minimum of 9 years after enactment); and (2) immediately eliminate mandatory tip pooling.  Finally, the Act would gradually eliminate the subminimum wage rates under section 14(c), as well as for newly-hired employees under 20 years old.  Majority Leader McConnell (R-KY) has said that the bill will not be taken up by the Senate.

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July 11, 2019

by Randy Johnson and Alex Passantino

Pallasch Confirmed as ETA Assistant Secretary.  Today, by a 54-39 vote, the Senate confirmed John Pallasch to serve as the Assistant Secretary of Labor for the Employment and Training Administration.  Pallasch is currently the Executive Director of Kentucky’s Office of Employment and Training and previously served in the Bush 43 Department of Labor.  At ETA, Pallasch will jump right in to two key policy areas for the Administration: immigration and apprenticeships.  

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June 27, 2019

by Randy Johnson and Alex Passantino

Labor Department Releases Long-Awaited Apprenticeship Proposal.  Earlier this week, the Department published a notice of proposed rulemaking (NPRM) on industry-recognized apprenticeship programs (IRAPs).  The NPRM reflects recommendations made in May 2018 by the Task Force on Apprenticeship Expansion, which itself was created by a June 2017 executive order. Under the proposal, trade, industry, and employer groups or associations, educational institutions, state and local government entities, non-profit organizations, unions, or a consortium or partnership of these entities, can become a Standards Recognition Entity (SRE).  SREs will set standards for training, structure, and curricula for IRAPs in relevant industries or occupational areas.  The SREs would be recognized through the U.S. Department of Labor to ensure that certain requirements are met.  Specifically, the Department proposes to ensure that SREs have the capacity and quality-assurance processes and procedures needed to monitor IRAPs. and recognize that IRAPs are high quality (e.g., include paid work, work-based learning, mentorship, education and instruction, industry-recognized credentials, safety and supervision, and equal employment opportunity).  Interested parties have 60 days to comment.

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June 20, 2019

by Randy Johnson and Alex Passantino

House Passes Labor Appropriations Bill.  Yesterday, the House passed the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2020 (H.R. 2740).  As passed, the bill includes a 10% increase for the Department of Labor’s budget, with $660.9 million allocated to OSHA and $298.1 million allocated to the Wage & Hour Division.  Both figures would represent sizable increases for those agencies.  Of course, the bill must be passed by the Senate and signed by the President before the appropriations take hold, so we are still quite a bit away from a final agreement on funding these agencies.

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June 13, 2019

by Randy Johnson and Alex Passantino

House Ed & Labor Addresses FLSA Salary Level.  In a sometimes contentious hearing earlier this week, the Subcommittee on Workforce Protections reviewed the Department of Labor’s proposed salary increase to the white collar exemption threshold.  In addition, the Subcommittee chair and several other members of the Majority advocated for the Restoring Overtime Pay Act (H.R. 3197), which would set the salary level at nearly $51,000 (i.e., higher than the court-enjoined level set in 2016) with automatic updates every three years.  Regardless of what happens in the House, the bill is not likely to get through the Senate.  The battle over the proper salary level, however, will continue.  Notably, both Senator Alexander, Chair of the Senate HELP Committee and Rep. Foxx, Ranking Republican of the House Education and Labor Committee, have written in support of the rule.

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June 6, 2019

by Randy Johnson and Alex Passantino

House Hearing on Overtime Rule.  The seemingly never-ending saga of the Department of Labor’s regulatory efforts to increase the salary threshold gets another chapter next week when a subcommittee of the House Committee on Education and Labor holds a hearing titled “Restoring the Value of Work: Evaluating DOL’s Efforts to Undermine Strong Overtime Protections.”  Witnesses have not yet been announced for the June 12 hearing.

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May 23, 2019

by Randy Johnson and Alex Passantino

POWADA.  On May 21, the House Committee on Education and Labor held a hearing on the “Protecting Older Workers Against Discrimination Act”  (POWADA, H.R. 1230, S. 485).  In a nutshell, this bill would reverse the Supreme Court's Gross decision concerning so-called  “mixed motive” cases in which the Court held that the Age Discrimination in Employment Act has a “but for”  standard which requires a plaintiff to show that age was the motivating factor in the employer's decision in question as opposed to merely a motivating factor, i.e. one of many. The basic justification for this change is that Title VII of the 1964 Civil Rights Act takes a different approach in these “mixed motive” cases by providing that if a plaintiff shows that an improper factor was a factor in the decision, the plaintiff can prevail even if that factor was not the primary one driving the employer’s decision in the underlying personnel action. However, remedies in such a case are limited to injunctive relief and attorney’s fees. This structure was enacted through the 1991 Civil Rights Act amendments to Title VII, and proponents of POWADA argue they are simply asking for equivalent treatment for older workers. Similar changes are made to the Americans with Disabilities Act and the Rehabilitation Act.  Further, this mixed motive analysis would also be applied to retaliation cases.  The bill, which has bipartisan support, is strongly supported by the AARP.  Stay tuned for further developments as the business community develops its position.

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May 16, 2019

by Randy Johnson and Alex Passantino

Arbitration Under Attack in the House.  Today, the House Judiciary Committee’s Subcommittee on Antitrust, Commercial and Administrative Law held a hearing titled “Justice Denied: Forced Arbitration and the Erosion of our Legal System.”  The hearing focused on whether predispute binding agreements were really voluntary, their effects on employees and consumers and the advantages and disadvantages of arbitration vs. the court system.  With witness Gretchen Carlson (formerly of Fox News) laying the ground work, there was also much discussion on the effects of non-disclosure requirements.  Representatives Nadler and Scott, chairs of the House Judiciary and Education and Labor Committees, respectively, also reintroduced the “Restoring Justice for Workers Act,” which would prohibit the use of predispute arbitration clauses in employment contracts (not limited to sexual harassment) and prohibit employers from requiring employees to waive the right to engage in joint class or collective legal action.  It would also impose certain requirements on post-dispute arbitration agreements.  The Act would be enforced through civil action, with remedies similar to those under Title VII of the 1964 Civil Rights Act.  Sen. Murray, Ranking Member of the Senate HELP Committee, introduced parallel legislation in the Senate. 

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May 9, 2019

by Randy Johnson and Alex Passantino

EEO-1 Update.  The Department of Justice filed an appeal from the District Court's decision on May 3.  DOJ, however, did not file a request for stay of the order and EEOC has made clear that the notice of appeal has no effect on the requirement that employers submit 2017 and 2018 EEO-1 Component 2 data by September 30, 2019.  Of course, the appeal itself will not be resolved before the September 30 deadline.  Employers, therefore, need to prepare to file the appropriate data by that date.  As noted in prior newsletters, Seyfarth has long been involved in this issue, has conducted several webinars on compliance questions, and will continue to track developments.

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May 2, 2019

by Randy Johnson and Alex Passantino

Latest on the EEO-1.  Today, in response to a federal court order that has been discussed here previously, the EEOC announced that, in mid-July, it would begin collecting the 2017 and 2018 Component 2 data (completed by September 30).  Separately, employers must submit Component 1 data by May 31, 2019; the EEOC is tightening that deadline, having exchanged an automatic (upon request) 30-day extension for a 14-day extension.  For more on the issue, see Seyfarth’s Client Alert.  We will continue to be deeply involved in evaluating these issues as further developments roll out; after several webinars on the practical aspects of implementing the Court’s order, many compliance questions remain.  Stay tuned for further information.

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April 25, 2019

by Randy Johnson and Alex Passantino

The House and Senate are adjourned this week for their State/District work periods. 

Acosta to Testify Before House Ed and Labor.  The House Committee on Education and Labor has set a time for their questioning of Labor Secretary Alex Acosta.  On May 1, 2019, the Secretary will be the sole witness at a hearing titled “Examining the Policies and Priorities of the U.S. Department of Labor.”  This is the first opportunity the new leadership of the House committee of jurisdiction will have to question Secretary Acosta on issues ranging from enforcement priorities to apprenticeships to tipped employees and the rest of DOL’s regulatory agenda.

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April 18, 2019

by Randy Johnson and Alex Passantino

The House and Senate are adjourned this week and next for their State/District work periods.

EEOC Releases Enforcement and Litigation Stats.  Last week, the EEOC released its comprehensive enforcement and litigation statistics for Fiscal Year 2018.  There was a dip in the number of total charges filed, but a substantial increase in the EEOC’s monetary recoveries.  Retaliation and sex discrimination charges were the most frequently alleged.  See Seyfarth’s Workplace Class Action blog for more details.

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April 11, 2019

by Randy Johnson and Alex Passantino

Is That the Nomination Train Starting Up? As we reported previously, the U.S. Senate recently changed its rules to limit debate on most nominees. The practical effect of the change is to speed up the confirmation process. This week, we have seen the first labor agency beneficiary of the new rules: Cheryl Stanton, whose nomination had been languishing for the last year-and-a-half, was confirmed on Wednesday by a 53-45 margin. We still await action for the heads of OSHA and the Employment & Training Administration, as well as an EEOC Commissioner and General Counsel (although the latter is still pending before the Senate HELP Committee).

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April 4, 2019

by Randy Johnson and Alex Passantino

WHD Jumps Into the Joint Employer Arena.  Earlier this week, the Department of Labor’s Wage & Hour Division announced a proposed rulemaking on the issue of joint employment under the FLSA.  If adopted as proposed, the rule would establish a four-factor balancing test and would set out a number of examples applying the new test’s factors.  Comments--which are sure to be many--will be due 60 days after the proposal is published in the Federal Register.  As of now, the proposal has not yet been published.  For more on the joint employer rulemaking, see Seyfarth’s Wage & Hour Litigation blog.  And stay tuned for more updates on WHD’s three regulatory projects--joint employer, regular rate, and salary threshold for white-collar exemptions. 

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March 28, 2019

by Randy Johnson and Alex Passantino

Paycheck Fairness Act Passes House. As predicted in last week's newsletter, the Paycheck Fairness Act (H.R. 7) passed the House on Wednesday.  The vote was 242-187, with 7 Republicans voting  in support.  A variety of amendments were debated, with all Democrat amendments adopted and all Republican amendments defeated.  One amendment marginally improved the bill by making clear that the expanded compensation reporting requirements would apply only to employers of 100 or more employees.  A Motion to Recommit that would have capped attorney fees at 49 % of the underlying award was defeated, 191-236.  Representative Stefanik (R-NY), along with 48 cosponsors, introduced an alternative bill, the Wage Equity Act (H.R. 1935), which would make narrow changes to the Equal Pay Act--including some limitations on the use of past wage history--but would allow a type of safe harbor from liquidated damages for employers who undertake a voluntary self-audit on pay--setting a useful precedent.  As we’ve noted previously, Seyfarth has been very involved in this legislative process and will remain so as the bill move to the Senate.

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March 21, 2019

by Randy Johnson and Alex Passantino

More Labor & Employment House Hearings Scheduled.  The House Education & Labor Committee is keeping its foot on the hearing pedal.  Next week, it has three hearings scheduled, two of which address labor issues.  The first, on Tuesday, March 26, is on “Protecting Workers’ Right to Organize:  The Need for Labor Law Reform.”  The second, on March 27, is on “Innovations in Expanding Registered Apprenticeship Programs.”  We’ll report on the hearings in next week’s edition. 

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March 14, 2019

by Randy Johnson and Alex Passantino

President’s Budget Cuts DOL By 10%.  Every year, the President of the United States submits a budget to the U.S. Congress.  And just about every year, Members of Congress use the President’s budget as a doorstop or kindling.  Particularly with this divided Congress, there is virtually no chance that the President’s FY2020 budget will become “the” budget.  Nevertheless, at DOL, the President’s budget makes significant cuts to some “ineffective” job training programs, while effectively maintaining or even increasing enforcement resources at the Wage & Hour Division, OFCCP, OLMS, and OSHA.  Significant increases in premiums under the multi-employer pension program were proposed.  The budget also includes a $160 million investment in apprenticeships, one of the President’s key issues.   

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March 7, 2019

by Randy Johnson and Alex Passantino

Paycheck Fairness Act Headed to the House Floor.  The Paycheck Fairness Act (H.R. 7) steadily marches to passage by the House.  Less than a week after it was approved along party lines by the Education and Labor Committee, Speaker Pelosi announced that it would get a vote in the full House before April 2.  Bloomberg reports that the vote will come as early as next week, according to Majority Whip Stoyer.  As previously noted, Seyfarth testified on the legislation and will remain engaged as the bill moves to the Senate, where action is uncertain. 

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February 28, 2019

by Randy Johnson and Alex Passantino

Paycheck Fairness Act Clears Committee.  On February 26, the House Committee on Education and Labor reported out H.R. 7, the Paycheck Fairness Act, which would radically revise the Equal Pay Act.  House leadership is promising swift floor action, with the bill possibly being brought up within the next two to three weeks, with passage all but-assured.  Importantly, however, there were no defections at the Committee level on the Republican side, a fact that was not a given going into this debate considering the sensitivities of the issues. You may recall that Seyfarth partner Camille Olson was the sole witness invited to testify on problems with the legislation; the other six witnesses were wholly supportive.  Her testimony helped lay the groundwork for a number of amendments, including one striking new provisions that would quite literally make it impossible for an employer to demonstrate that a factor other than sex explained the pay differential at issue.  Unfortunately, the Committee rejected the amendments, and cleared the way for the plaintiffs’ bar to rack up easy wins, with unlimited punitive and compensatory damages and expanded class actions.

Previously, House-passed versions of this overreaching legislation have died in the Senate but, given the heightened focus on these sensitive issues and the fact three Republican women are up for reelection next year, we are taking nothing for granted and will remain engaged as the debate moves to the Senate.

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February 14, 2019

by Randy Johnson and Alex Passantino

Olson Testifies on Paycheck Fairness.  On Wednesday, February 13, Seyfarth Shaw’s Camille A. Olson testified on the Paycheck Fairness Act (H.R. 7) at a joint hearing of the House Subcommittee on Civil Rights and Human Services and the Subcommittee on Workforce Protections.  That bill, in summary, would radically amend the Equal Pay Act to virtually eliminate the ability of an employer to defend itself, even when legitimate job-related factors explain differences in pay; impose unlimited punitive and compensatory damages and expand class action rules to the benefit of the trial bar; and make numerous other changes to existing law.  In addition to highlighting significant concerns with HR 7, Camille also discussed certain opportunities to enhance the current protections against wage discrimination.  If there ever was a piece of legislation in which seemingly technical language hides numerous substantive changes that demanded a line-by-line analysis, it is this one.  Seyfarth was invited by the House Republicans to provide that analysis and an expert perspective on how the bill would change current law and its practical impact on workplace practices and current litigation and class procedures under the Equal Pay Act.  The other three witnesses on the panel provided blanket support for HR 7.  Look to see the bill move through the House Committee on Education and Labor to the House floor in the next month, with passage assured, and then to the Senate where the outlook remains to be seen.  We will stay deeply engaged on this issue.  Numerous Seyfarth Shaw subject-matter experts provided significant analytical contributions to the testimony presented, including Annette Tyman, Co-Chair of Seyfarth’s Pay Equity Group and Randel Johnson, Chair of Seyfarth’s Government Relations and Policy Group. 

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February 7, 2019

by Randy Johnson and Alex Passantino

Paid Family Leave?  This year’s State of the Union was short on employment issues, with one notable exception.  You probably noticed that the President referenced paid family leave:  “I am also proud to be the first President to include in my budget a plan for nationwide paid family leave--so that every new parent has the chance to bond with their newborn child.”  His 2019 budget included a proposal to establish a paid parental leave benefit within the unemployment insurance (UI) program to provide six weeks of paid family leave to new mothers and fathers, including mandatory funding for the states’ startup costs.  This type of approach has often been called “Baby UI.”  A different proposal floated by Representative Ann Wagner (R-MO) and Sen. Rubio (R-FL)--apparently with Ivanka Trump’s approval--would allow parents to fund a current leave by borrowing money against future Social Security benefits. Neither of these proposals, however, go far enough for many lawmakers, but the President's focus in the State of the Union tells us that this is a sensitive issue in the ether and on Capitol Hill. Look for the House to move broader paid leave legislation and put pressure on the Senate to take up some form of legislation.  And the President’s upcoming budget may provide further details on his proposal, so stay tuned.

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January 31, 2019

by Randy Johnson and Alex Passantino

One Down, Two to Go.  As you know, last Friday, on the heels of some test votes that indicated a weakening of Senate support for the shutdown, President Trump signed a bill funding the previously-shuttered parts of the government for three weeks.  The three weeks are intended to allow a bipartisan, bicameral group of legislators to craft a spending bill that would fund the government for the remainder of this fiscal year.  Negotiations began in earnest earlier this week, but it remains unclear whether the group can come to an agreement that would pass both houses of Congress and would be signed by the President.  Mark February 15 on your calendars for another round of budget brinksmanship.

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January 24, 2019

by Randy Johnson and Alex Passantino

And STILL It Continues . . . As the partial government shutdown moves into its 34th day, the Senate took up two competing bills under a parliamentary structure allowing votes on either, or both, bills.  The first adopted the President’s recent proposal. including $5.7 billion in border barrier funding, as well as temporary Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) relief (among other provisions).  The second was the House-passed proposal that provided stopgap government funding through February 8, ostensibly to provide a window in which to negotiate further. The parliamentary move allows some debate on the issues and provides an opportunity for Senators to go on record with a particular vote (to demonstrate their position for particular constituencies), even with the knowledge that it is highly likely that both bills would fail.  In this case, failure meant not obtaining the 60 votes needed to move to debate.  As expected in the context of this futile and somewhat cynical procedure, both proposals did fail.  There were, however, some signs of the deadlock breaking, with a number of crossover votes, including Sen. Manchin (D-WV) supporting the President’s proposal and Republican Sens. Gardner (CO), Collins (ME), Alexander (TN), Isakson (GA), Murkowski (AK), and Romney (UT) supporting the House Democrats’ proposal.

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January 17, 2019

by Randy Johnson and Alex Passantino

Nominees for Key Labor Vacancies Renominated.  After the return of their nominations by the Senate at the conclusion of the last session of Congress, President Trump this week re-nominated several individuals for key positions at the Labor Department and EEOC.  Cheryl Stanton has been renominated to serve as Administrator of the Wage & Hour Division, Scott Mugno to be Assistant Secretary for OSHA, and John Pallasch to be Assistant Secretary for ETA.  For the EEOC, Janet Dhillon has been renominated as Commissioner and Sharon Fast Gustafson as General Counsel.  Each of these individuals will require confirmation by the Senate before taking on their roles.     
 

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January 10, 2019

by Randy Johnson and Alex Passantino

Happy 2019! As we enter the new year with this brand-new edition of Policy Matters, we find ourselves STILL focusing on many of the same issues that we were discussing at the end of 2018, including the lack of a fully-funded government and numerous federal agencies without confirmed leadership. We do, however, have a new Congress and all that that entails. So let’s start there . . . 
 
New Congress Means New Labor Committee Leadership. As expected, the House Committee on Education & Labor (nee Workforce) will be chaired by Bobby Scott of Virginia. Virginia Foxx of North Carolina will serve as the Republicans’ Ranking Member. Over on the Senate side, Tennessee’s Lamar Alexander will continue as Chair, and Democrat Patty Murray of Washington will serve as Ranking Member.     
 

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December 21, 2018

by Randy Johnson and Alex Passantino

STILL Waiting for that Budget. We delayed this week’s issue in the hope that we would finally be able to report on a budget deal.  Or a continuing resolution.  Or a labor agency confirmation deal.  But, with federal funding for a large chunk of the government set to expire at midnight Eastern time, there are no deals in sight.  As of this writing, it looks like we’re headed for a partial government shutdown.
 

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December 13, 2018

by Randy Johnson and Alex Passantino

Still Waiting for that Budget. With just over a week to go on the current continuing resolution, we once again find ourselves waiting to see whether (when, really) the government will be funded.  In a well-publicized meeting earlier this week, President Trump told Minority Leaders Pelosi and Schumer that he would refuse to sign a budget bill that did not contain the requested $5 billion for a border wall.  It is doubtful that an appropriations package containing that funding would get through the Senate . . . and it’s questionable whether it could even be passed by the House.  And so we wait to see who will flinch to avoid a government shutdown.
 

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December 6, 2018

by Randy Johnson and Alex Passantino

President George H.W. Bush’s ADA Legacy. In this week of ceremonies for George H.W. Bush, we would be remiss not to mention the Americans With Disabilities Act.  While not perfect, the Act was strongly supported by the business community as finally drafted, after many months of negotiations, and has improved the lives of millions of Americans. Importantly, it has also become a model for similar laws in other countries. In a time when the Congress seems incapable of getting anything done, its enactment was also a model legislative process where both the Senate and the House acted on a bipartisan basis, drafted bills, and met in conference where final disagreements were ironed out.  Certainly, we still need to address compliance questions including what constitutes access to websites, the problems in some states of “drive-by” lawsuits, and what level of leave constitutes reasonable accommodation without undue hardship, and others, but the business community and the disability community can do so on a reasonable, respectful basis, as was done with the 2008 amendments.  
 

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November 29, 2018

by Randy Johnson and Alex Passantino

House Subcommittee to Examine Impact of $15.00 Minimum Wage.  On December 5, the House Subcommittee on Workforce Protections will hold a hearing titled “Mandating a $15 Minimum Wage:  Consequences for Workers and Small Businesses.”  The hearing appears to be a preemptive effort by the outgoing Republican committee leadership to ensure its viewpoints are made part of the legislative record. The incoming Democratic leadership -- specifically, expected Committee Chair Bobby Scott -- has made clear than a minimum wage increase is a high priority (although it’s less clear how large an increase will be sought).    
 

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November 15, 2018

by Randy Johnson and Alex Passantino

Much of the attention in D.C. this week has been focused on leadership races for next year’s Congress.  Chatter continues about plans for the lame duck session and the House’s plans for 2019 and beyond.   Issues as varied as criminal justice reform, immigration, tax extenders, minimum wage, mandatory arbitration, and paid sick leave have been mentioned as potential areas for activity . . . or as dead on arrival.  Exactly how the labor and employment policy landscape shakes out remains to be seen, and we’ll have more on those developments in the coming weeks.  In the meantime, here’s what else we’ve been watching:
 
Crane Operator Certification Requirements Go Into Effect.  OSHA issued a final rule under which employers are required to train operators as needed to perform assigned crane activities, evaluate them, and document successful completion of the evaluations.  The rule also requires crane operators to be certified or licensed, and to receive ongoing training as necessary to operate new equipment.  With the exception of the evaluation and documentation requirements, the rule takes effect December 9.  The evaluation and documentation requirements will become effective on February 7, 2019.
 

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November 8, 2018

by Randy Johnson and Alex Passantino

(Not As Many) Elephants in the Room. Of course, the big news in Washington is the Democratic takeover of the House of Representatives.  The specifics of how the agenda will be implemented remain to be seen (e.g., are there areas for bipartisan/bicameral compromise and/or will there be efforts to push aggressive measures to “reward” certain constituencies despite likely failure in the Senate).  On the labor and employment front, however, expect to see efforts on a minimum wage increase, a ban on employment arbitration, a paid sick leave entitlement, and broad (pro-union) changes to the National Labor Relations Act.  And oversight.  Lots and lots of oversight--letters, hearings, GAO investigations--on everything from regulatory proposals to subregulatory guidance to enforcement activities.  In addition, there are likely to be efforts in the House to block Presidential initiatives through funding limitations in appropriations bills.

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November 1, 2018

by Randy Johnson and Alex Passantino

The midterm elections are finally here, and it is clear that there is more on the line than simply control of Congress in January 2019. The parties’ performance on Tuesday is expected to influence the agenda in the lame duck session, which is likely to address appropriations, immigration, and nominations, among other issues. 

Join us next Thursday as Scott Reed, Senior Political Strategist for the U.S. Chamber of Commerce breaks down the election results and their impact on Congressional priorities in the lame duck and beyond.

Register here to attend in-person or via webinar.

Employment Law on the State Ballots.  Midterms, of course, are not simply about control of Congress.  A number of states have employment-related ballot initiatives, including measures on increasing minimum wage and legalizing marijuana.  SHRM has more here

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October 26, 2018

by Randy Johnson and Alex Passantino

Both chambers of Congress remain out through the midterm elections.  The Administration, however, keeps moving its agenda forward.
 
DOL Takes Next Step on Association Retirement Plans.  Touted as helping "small businesses strengthen retirement security in America," earlier this week, the Department of Labor announced a proposed rule that would make it easier for small businesses to band together to offer 401(k) benefit packages comparable to those offered by large employers.  Under the proposed rule, Association Retirement Plans could be offered by local associations of employers or employers in a particular industry nationwide. In addition, the plans could be sponsored through Professional Employer Organizations.

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October 18, 2018

by Randy Johnson and Alex Passantino

The Reg Agenda Edition

With the House and Senate gone until after the midterm elections, all is quiet on the legislative front.  The Trump Administration just released its Fall 2018 Regulatory Agenda, however, so we focus this issue of Policy Matters on the upcoming work of the Executive Branch.

Joint Employment Everywhere.  For several years now, there have been efforts in Congress to rein in the expansive view of joint employment espoused by the Obama Administration labor agencies.  For example, the Save Local Business Act would have amended the NLRA and FLSA to specifically codify a more constrained definition of joint employment under those acts.  Although the House passed the bill, the Senate has not yet taken it up.  Not surprisingly, then, the Trump NLRB and DOL have both begun initiatives to revisit the definition.  The NLRB proposed a rule in September that would find joint employment only where the joint employer possesses and exercises substantial, direct, and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine.  Similarly, DOL’s Wage & Hour Division has announced an effort to “clarify the contours of the joint employment relationship to assist the regulated community in complying with the [FLSA].”  DOL’s proposed regulation is anticipated in December.

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October 11, 2018

by Randy Johnson and Alex Passantino

Whatever Happened to Those Labor Nominations?  The Senate has spent much of its time moving President Trump’s judicial nominees at record pace. Yet, as we approach the two-year mark in the Trump Administration, a number of key roles in the labor agencies remain vacant. At the EEOC, we await confirmation of three Commissioners (including one who will become Chair upon confirmation) and the General Counsel. At the Labor Department, the Wage & Hour Division Administrator and OSHA Assistant Secretary await floor votes, while Assistant Secretaries for Policy and the Employment & Training Administration are still pending in the Senate HELP Committee. And at the NLRB, the controversial re-nomination of Mark Pearce as a Board Member is before the Committee.  Some of these nominations have been pending for well over a year.  Whether and when the Senate tackles these nominations remains to be seen, but there was a small glimmer of hope this week when the Senate turned its attention to a number of sub-Cabinet positions, including the Assistant Attorney General for Civil Rights at the Department of Justice, who was confirmed today.

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October 4, 2018

by Randy Johnson

Happy (Federal Fiscal) New Year!  While most eyes have been on the Senate’s battles over the confirmation of Judge Brett Kavanaugh to the Supreme Court, labor and employment issues continue to swirl in in D.C. and around the country. 

Show Me the Money.  With the new fiscal year comes a new federal budget.  And this year, for the first time in a long time, the Department of Labor enters the fiscal year with a full-year budget.  Although the Trump Administration proposed significant changes to the budgets of the various labor agencies, the final Congressional budget effectively continues last year’s appropriation or provides small increases:  OSHA is up $5 million to $557,787,000; WHD is up $1.5 million to $229,000,000; OFCCP stays put at $103 million; and the NLRB stays at $274,000,000.  Notably absent from the appropriations legislation are significant policy riders, with the only such limitation a prohibition on the NLRB’s use of funds to issue electronic voting regulations.

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September 20, 2018

by Randy Johnson and Walt Mullon

Deadline Set for Additional Kavanaugh Hearing. Senate Republicans are moving forward with plans for a hearing this upcoming Monday to consider sexual assault allegations against Supreme Court nominee Brett Kavanaugh. Sen. Chuck Grassley (R-IA), chairman of the Senate Judiciary Committee, sent a letter to Dr. Christine Blasey Ford’s attorneys yesterday, setting a deadline for 10:00 a.m. on Friday for submitting prepared testimony. However, just this afternoon, Ford’s attorneys responded to Grassley stating that she would be open to testifying next week, but not on Monday and only if she is offered “terms that are fair and which ensure her safety.” Chairman Grassley has yet to respond.

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September 13, 2018

by Randy Johnson and Walt Mullon

NLRB to Publish Joint-Employer NPRM Tomorrow. The National Labor Relations Board (NLRB) announced earlier today that it will publish its long awaited proposed rulemaking on the joint-employer standard tomorrow. The rule proposes that the Board will only find that a business jointly employs another company's workers if it “possesses and exercises substantial, direct and immediate control” over said workers. This rule would overturn the previously established standard where a company could be deemed a joint-employer even if it only had “indirect” control over another company's workers.

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September 6, 2018

by Randy Johnson and Walt Mullon

Kavanaugh Confirmation Hearings Get Underway. Supreme Court nominee Brett Kavanaugh began his third day of confirmation hearings before the Senate Judiciary Committee this morning. Today marked the second (and final) day of senators’ questioning, with Kavanaugh facing a series of tough questions on topics such as gun regulation, executive power, and abortion rights. The hearings have been marred by a multitude of outbursts and chaotic moments with 143 protestors being arrested over the first two days of the proceedings. The hearings are expected to end tomorrow with about two dozen outside witnesses scheduled to testify, including John Dean, President Richard Nixon’s White House counsel.

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August 30, 2018

by Randy Johnson and Walt Mullon

President Trump Renominates Pearce for 3rd NLRB Term. Earlier this week, President Trump nominated Mark Gaston Pearce (D) for another term on the National Labor Relations Board (NLRB). If confirmed by the Senate, Pearce would serve a five year term on the Board. Pearce’s nomination was part of a reported agreement between Senate Majority Leader Mitch McConnell (R-KY) and Minority Leader Chuck Schumer (D-NY) where Democrats agreed to waive waiting periods and confirm other pending nominations in the judicial and executive branch in exchange for Pearce. This comes in the face of staunch opposition from business and management groups to deny Pearce another term. 

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August 16, 2018

 
Senate Returns to Work. On Wednesday, the Senate returned from its nearly two-week recess to resume its rare August work period. The chamber has two more federal appeals court judges teed up for confirmation and could also consider a third spending package this week. These come on top of a record-breaking string of confirmations, as there have been 24 appellate judges confirmed by the Senate since President Trump was sworn in, the highest number for a president’s first two years in office. There are currently 13 remaining vacancies on the U.S. Court of Appeals.
 


August 2, 2018

 
Rubio Introduces Paid Family Leave Bill. Earlier today, Senator Marco Rubio (R-FL) unveiled new legislation aiming to provide paid family leave for new parents. The Economic Security for New Parents Act would allow parents to draw up to six months of early payments from their Social Security benefits. In return for receiving Social Security payments early, parents would defer their retirement benefits for three to six months, or the amount of time necessary to offset the cost of their parental benefits. The proposed legislation includes a 3-year sunset provision, meaning the program would expire if Congress didn't renew it. The bill has already come under fire from Democrats claiming that the legislation does not go far enough to help working families while also placing additional strain on the Social Security system.
 

July 26, 2018

 
OFCCP Director to Step Down. Earlier today, reports surfaced that the Director of the Office of Federal Contract Compliance Programs (OFCCP), Ondray Harris, would be stepping down from the role at the end of this week. Harris lasted less than 8 months on the job after being appointed to the position last December. Craig Leen, the deputy director at OFCCP, will serve as director on an acting basis. Leen is expected to continue the agency’s recent “business-friendly” approach when analyzing the pay practices of federal contractors as well as the office’s increased focus on apprenticeships. 
 

July 19, 2018

 
President Trump Signs Executive Order on Workforce Training. Earlier today, President Trump signed an executive order which aims to bolster vocational training, creates a national council for American workers, and establishes a workforce policy advisory board in a push to increase the number of skilled workers in the U.S. Alongside business executives, the President introduced the “Pledge to America’s Workers,” which commits employers to expanding on-the-job training and apprenticeships. The administration expects the pledge to lead to at least 500,000 new career opportunities for students and workers. Earlier this week, Ivanka Trump penned an op-ed in support of the new initiative, declaring that the administration hopes to “create a workforce culture that fosters and prioritizes life-long learning.”
 

July 12, 2018

 
Trump Taps Brett Kavanaugh for Supreme Court Vacancy. On Monday evening, President Trump nominated D.C. Circuit Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court. Judge Kavanaugh is considered a reliable member of the Republican legal establishment with a solid record on issues from free speech, to religious liberty, to the Second Amendment. His credentials include clerking with Justice Anthony Kennedy, working for Kenneth Starr’s Whitewater investigation, and spending six years in the George W. Bush White House as a lawyer and eventually staff secretary to the president.

In his 12 years on the D.C. Circuit, Kavanaugh has cast dozens of votes to roll back rules and regulations. He has often concluded that agencies stretched their power too far and frequently found himself at odds with the Obama administration, including in dissents he wrote opposing net-neutrality rules and greenhouse-gas restrictions.
 

June 28, 2018

 
 
Supreme Court’s Janus Decision Deals Blow to Public Sector Unions. On the last day of the Supreme Court’s term, the bench ruled 5 - 4 yesterday that public-sector unions can no longer require mandatory “fair share” fees from non-members to cover their cost of collective bargaining. The ruling fell along ideological lines, with Justice Alito delivering the conservative majority’s opinion that forcing workers to finance union activity violated their First Amendment rights. Further, the ruling requires unions to adopt an "opt in" system for workers to join up and pay dues rather than merely allowing workers to opt out of doing so. While organized labor has been preparing for this long anticipated ruling, significant drops in support are likely. Union membership nationwide is less than 11 percent of the American workforce, but about a third of government employees are union members.
 
See our recently issued Management Alert for more information on the decision
 

June 21, 2018

 
 
House Votes Down Goodlatte Immigration Bill; Vote on Compromise Bill Delayed Until Next Week. Earlier today, the House voted down H.R. 4760, the Securing America’s Future Act of 2018, by a vote of 231 - 193. 41 Republicans joined 190 Democrats to defeat Chairman Goodlatte’s bill which would have provided President Trump with funding for the border wall and offered only temporary relief for DACA recipients.
 
House Speaker Paul Ryan informed fellow lawmakers this evening that a vote on the "compromise" immigration proposal would be delayed until next week. The outlook for passage of the leadership compromise bill is grim after Speaker Paul Ryan and House Freedom Caucus Chairman Mark Meadows (R-NC) had an intense discussion on the House floor last night. House leadership whipped votes for the bill yesterday and sent undecided members to meet with President Trump, Attorney General Jeff Sessions, and Homeland Security Secretary Kirstjen Nielsen in an effort to get them to “yes.” The delay comes as House Republicans look to modify the bill further in a bid to reach 2018 votes by next week.
 

June 14, 2018

 
 
House to Vote on Two Immigration Proposals Next Week. Speaker Paul Ryan defused a moderate Republican rebellion with a promise to hold high-stakes votes on two DACA related immigration bills next week. The floor votes will effectively stop the effort to bring up legislation through the discharge petition; Republican moderates reportedly fell two signatures short of the 218 needed to force votes. 
 
The House will consider H.R. 4760, the “Securing America’s Future Act of 2018,” a bill drafted by Judiciary Committee Chairman Bob Goodlatte (R-VA), as well as a second compromise package, the “Border Security and Immigration Reform Act of 2018” (still in draft form), which was assembled by Speaker Ryan in consultation with conservatives and moderates. House Leadership circulated this summary of the draft compromise bill. There are no guarantees that either bill will pass. 
 

June 7, 2018

 
 
BLS Releases New Gig Economy Worker Data. Earlier today, the Department of Labor’s Bureau of Labor Statistics (BLS) issued its much anticipated report on the gig economy. The report, which was the first government study on the subject since 2005, found that the number of temporary workers decreased over the past 12 years, going from 10.7% of the nation’s workforce to 10.1%. Additionally, a survey question within the study found that 79% of independent contractors overwhelmingly preferred their work arrangement to traditional jobs (Table 11), a finding which runs counter to a popular narrative that gig workers would prefer traditional employment.
 
Seyfarth’s Camille Olson, who testified before the Senate Health, Education, Labor, and Pensions Committee on the gig economy in February, was quoted as saying “[t]his report offers new, hard data on workers in contingent and alternative employment arrangements which will help guide the broader debate on the pros and cons of the so-called 'gig economy.'” The BLS plans to release additional findings specific to workers who find gigs through an app or website in September.
 

May 24, 2018

 
 
Supreme Court Upholds Workplace Arbitration Contracts. On Monday, the Supreme Court ruled 5-4 that the National Labor Relations Act does not bar employers from requiring workers to sign arbitration agreements waiving their right to bring class-action claims on disputes, primarily over wages and hours. Associate Justice Neil Gorsuch authored the majority’s decision, siding with the four other conservative justices on the bench. The Wall Street Journal editorial board reacted to the decision, saying, “[a] ruling the other way would have would have abrogated hundreds of thousands of employment contracts and sent trial lawyers to the races. What a difference a single Justice makes.”
 
For a more a detailed explanation of the decision and its implications going forward, see our recently released client alert.
 

May 17, 2018

 
 
Update on Discharge Petition Filed in the House to Force DACA Vote. The discharge petition making its way through the House has caused a divide among Republicans. The discharge petition aims to save the Deferred Action for Childhood Arrivals (DACA) program by forcing a vote on H. Res. 774, which would then lead to the consideration of four different DACA related proposals. In order for the discharge petition to be executed, it must be signed by a majority of House members—at least 218 members, to be exact. If the entire House Democratic caucus were to sign onto the petition, it would take an additional 25 Republicans to reach that threshold. As of today, the petition has 29 signatures, 20 of which are Republicans.
 

May 10, 2018

 
 
Trump Administration’s Spring Regulatory Agenda Released. On Wednesday, the Trump administration released its semiannual unified agenda of regulatory and deregulatory actions for the spring. Mapping out what actions federal agencies plan to take in the coming months, the agenda sheds some light on the administration’s upcoming priorities
 
 
 

May 3, 2018

 
 
With Congress in recess and out of DC, Policy Matters has an update of what’s been happening in the courts this week:
 
High Court Applies “ABC” Test When Assessing Independent Contractor Status. On Monday, the Supreme Court of California ruled in Dynamex Operations v. Superior Court that a three factor “ABC” classification test is the correct method under state law for determining whether a worker should be classified as an employee or independent contractor. The test presumes that a worker hired to perform services is an employee of the hiring business, subject to the hirer’s ability to provide all three of the following elements:
 
 

April 26, 2018

 
 
Third Judge Rules Against Administration’s Termination of DACA. On Tuesday, U.S. District Judge John D. Bates issued a ruling against the termination of the Deferred Action for Childhood Arrivals (DACA) program, the third such federal judge to do so. In his opinion, Bates stated that the rescission of DACA was arbitrary and capricious under the Administrative Procedure Act since the Department of Homeland Security (DHS) failed to adequately explain why the program was unlawful. “Neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program.”
 
 

April 19, 2018

 
 
Push for Immigration Legislation Renewed in the House. A bipartisan group of House members began a campaign yesterday to pressure Speaker Ryan to bring immigration legislation up for a vote. The lawmakers announced that they had secured the support of 240 members, including 50 Republicans, to vote on a series of immigration bills, including one on DACA. The group is hoping to exercise a rarely used procedural rule known as “Queen of the Hill,” under which the House would vote on several immigration related measures and the bill with the most votes would pass. However, Speaker Ryan has stated several times in the recent past that he would be unwilling to bring a bill to the floor that President Trump would ultimately not sign.
 
 

April 12, 2018
 

by Randy Johnson and Walt Mullon

Speaker Ryan to Retire at End of Term. In a somewhat surprising announcement yesterday, House Speaker Paul Ryan declared that he would not seek re-election to Congress. Speaker Ryan explained that his decision was one that was the best for his family, having nothing to do with the "headwinds" facing Republicans in November. However, Democrats are characterizing Ryan’s retirement as more evidence that the GOP is preparing for a tough midterm cycle. The two likeliest successors to Speaker Ryan are seen as Majority Leader Kevin McCarthy (R-CA) and Majority Whip Steve Scalise (R-LA), but neither has announced plans to run yet. 

 

March 29, 2018
 

by Randy Johnson and Walt Mullon

Omnibus Wrap-Up. Late last week, the Senate passed the $1.3T omnibus bill (65 - 32), which was then sent to President Trump’s desk. After threatening to veto the bill due to a lack of full border wall funding and a DACA fix, the president eventually acquiesced and signed the legislation. The omnibus funds the government through September.
 

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March 22, 2018
 

by Randy Johnson and Walt Mullon

Omnibus Bill Released and Passed by the House. Following weeks of negotiations, Congressional leaders released the $1.3 trillion spending bill Wednesday night. The House of Representatives quickly passed the bill earlier today on a vote of 256 - 167. Now it’s the Senate’s turn to pass the omnibus by the end of Friday to avoid a government shutdown.

The final legislation includes provisions that will increase funding for the military, strengthen background checks for gun purchases, fund a school safety measure grant, and increase funding to combat the opioid epidemic. Among the provisions that didn’t make it into the final bill are: Obamacare stabilization funds, full funding for the President’s proposed border wall, a deal to extend the DACA program, and language to define joint employment under various labor laws.
 
 

March 15, 2018
 

by Randy Johnson and Walt Mullon

Potential DACA Deal in Omnibus Bill. Several reports have indicated that the White House is open to a possible DACA deal being included in next week’s Omnibus bill. While there is said to be no official proposal, a three-year extension of DACA is rumored to be offered in exchange for three years of border wall funding. The White House has publicly denied this, stating that the administration opposes a "three for three" swap. Further, many House Republicans balked at the notion of this deal being included in a “must pass” spending bill. While a DACA fix seems unlikely to be included in the Omnibus, this issue will clearly remain at the forefront. 

As a reminder, the current CR funds the government through March 23.
 

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March 8, 2018
 

by Randy Johnson and Walt Mullon

“New” DOL Program for Wage Violations. On Tuesday, Labor Secretary Alex Acosta announced that DOL would once again be supervising employer efforts to come into compliance after finding a wage-and-hour error or a questionable practice. Similar to Wage & Hour Division policy in the Bush Administration, the new pilot program will permit an employer to resolve FLSA issues after conducting a self-audit of its payroll and/or timekeeping practices. The Payroll Audit Independent Determination (PAID) program will provide employers the opportunity to make good on back pay and avoid litigation. Secretary Acosta stated the program "will help ensure employees receive back wages they are owed, faster." 
 

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March 1, 2018
 

by Randy Johnson and Walt Mullon

Hy-Brand Decision Overturned; Obama-Era Joint Employer Standard Reinstated. Earlier this week, the NLRB vacated its December decision that overturned the Obama-era joint employment standard, a reversal set in motion by conflict of interest questions surrounding Board member Bill Emanuel. A report from the inspector general stated that Emanuel had a conflict of interest because of his former employer’s involvement in Browning-Ferris, the 2015 decision that was reversed by the NLRB’s action in December. See Seyfarth’s Employer Labor Relations blog for more information on the Board’s action. OMB Director Mulvaney commented that the Browning-Ferris joint employer agreement would kill the franchise industry and that he would take a serious look at H.R. 3441, the joint employer bill which passed the House. 
 

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February 22, 2018


by Randy Johnson and Walt Mullon

NLRB Extends RFI Period on “Ambush” Election Rule. The National Labor Relations Board has extended the time to provide comments in response to its Request for Information on the controversial “Ambush” election rule from February 12 to March 19. Several members of the business community have requested still another 60-day extension in order to conduct further research on the issue. If the Board does decide to revisit the rule, it may wait until Board nominee John Ring is confirmed by the Senate, which would restore the Board’s 3 - 2 Republican Majority. Ring is currently scheduled to go before the Senate HELP Committee on March 1, with a committee vote scheduled for March 7. See Jaclyn Hamlin’s post for more information on the RFI
 

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February 15, 2018


by Randy Johnson and Walt Mullon

Missed Opportunity for Long Sought After Immigration Legislation. With Senator McConnell fulfilling his promise to bring an open immigration debate to the Senate floor this week, both partisan and bipartisan solutions were offered by lawmakers. However, as noted below, none of the measures were able to pass through the Senate this afternoon. Considering the Senate has been able to pass comprehensive immigration reform legislation in the recent past (e.g., S. 744 in 2013), some might view this as another sign that Washington is more divided than ever. 
 

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February 8, 2018


by Randy Johnson and Walt Mullon

Bipartisan Budget Deal Reached in Senate. Senators Mitch McConnell and Chuck Schumer unveiled a bipartisan two-year budget deal that funds the government through March 23 while lifting defense and non-defense spending by $300 billion and raising the debt ceiling until March of next year. The bill provides almost $90 billion in hurricane and wildfire disaster aid, extends CHIP for an additional four years, and provides funding to update infrastructure as well as to combat the opioid epidemic. President Trump tweeted his approval of the budget deal and the measure is expected to pass the Senate. However, GOP fiscal hawks immediately expressed their aversion to the package which may impede its passage in the House. 
 

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