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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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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