Beltway Buzz - February, 2018 #2

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Déjà Vu All Over Again? It is perhaps fitting that last Friday was Groundhog Day, as this week we relived the same government funding battle that we went through just a few weeks ago. Thankfully, because the shutdown card has already been played, and the resulting hand was a bust for both political parties, our fearless leaders in Congress only shut the government down for five hours or so. But in the early hours of the morning, President Trump signed a bill to keep the government running until March 23, when this debate may occur all over again. However, the bill also includes a broader two-year budget agreement that will allow Congress to return to regular order with regard to appropriations bills. Not included in the temporary funding measure is any resolution to the Deferred Action for Childhood Arrivals (DACA) matter, likely because—as the Buzz has noted—the decision to rescind the program has been enjoined by a federal district court, making March 5 a non-deadline. The Buzz is hopeful that this deal will put an end to “government by continuing resolution,” and will free up precious legislative time for consideration of other matters, such as confirming nominees to the U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), and Equal Employment Opportunity Commission (EEOC). We’ll have more on this in future editions of the Buzz.

A House “Filibuster”? Senate rules permit unlimited “extended debate” on the Senate floor, otherwise known as a “filibuster,” which requires 60 votes to invoke “cloture” to end. Such filibusters can be debilitating—you know, like Jimmy Stewart’s collapse during his one-man filibuster in the classic movie “Mr. Smith Goes to Washington.” In the House, however, the rules are different, and the length of debate is carefully regulated by the House Rules Committee. Under special circumstances, first exercised by former House Minority Leader John Boehner, exceptions can be made. Such was the case this week when House Minority Leader Nancy Pelosi engaged in a one-person “filibuster” on the House floor for eight hours in support of young undocumented immigrants, i.e., “Dreamers” and opposition to any budget deal that did not address DACA or other immigration reforms. Her extended remarks were the longest in over a century in the House, and she seemed no worse for the wear as she concluded to a standing ovation by many of her colleagues. The rest were “dreaming.”

Tip Pool Overflow. Some Fair Labor Standards Act (FLSA) wonks in D.C. are in high dudgeon over multiple reports that the DOL shelved an allegedly unfavorable economic analysis regarding the potential impact of its tip-pooling proposal, comments on which were due this past Monday, February 5. Like everything else in D.C. these days, the volume on this one has been turned up to 11. While the whole affair provides some great atmospherics for stakeholders who oppose the proposal, the Buzz is not yet ready to declare the proposal dead on arrival. For starters, it is helpful to remember that this is a notice of proposed rulemaking, not a final rule, so there is still opportunity for the DOL to make any needed corrections to the record. Second, if the DOL’s paper shredders could talk, we’re pretty confident that they’d have many tales to tell of draft economic analyses of myriad regulations that never saw the light of day, regardless of who ran the department. Third, the current regulations—which this proposal would undo—were supported by an economic analysis that was little more than a conclusory paragraph. Fourth, even if the economic analysis is faulty, would it really be arbitrary and capricious for the DOL to rescind a regulation that it had no authority to issue in the first place? Indeed, the National Restaurant Association, which supports the rescission of the tip-pooling restrictions, claims that the current restrictions on tip pooling “violate the plain language of the FLSA by attempting to restrict tip pools in workplaces where the employer does not take a federal tip credit.”

Federal Contractor Update. If the end of the NFL season has got you down, or you otherwise have the winter blues, cheer up: It’s Office of Federal Contract Compliance Programs (OFCCP) scheduling letter season! Late last week, OFCCP mailed 1,000 corporate scheduling announcement letters (CSALs) to contractor establishments and announced that the actual scheduling letters will start being sent on March 19, 2018. The Buzz is curious to hear if OFCCP’s investigative posture or strategies will be any different under newly-installed OFCCP Director Ondray Harris.

Multi-Employer Pension Fix? The Senate budget deal also includes the creation of a select, bipartisan, bicameral “supercommittee” to address the crisis related to the underfunding and looming insolvency of multi-employer pension plans and to report back to Congress by the end of November 2018. The underfunded plans include the International Brotherhood of Teamsters’s (IBT) Central States Pension Fund and the United Mine Workers of America’s (UMWA) Health and Retirement Funds. If at least four Republicans and four Democrats from the subcommittee—which is composed of six senators (three Republicans and three Democrats) and six representatives (also three Republicans and three Democrats) appointed by party leaders in their respective bodies—agree on a solution, it will present legislation to both the House and Senate for an expedited vote. The IBT and UMWA both endorsed the strategy. The Buzz wonders if these special “supercommittees” ever work. The last one, which was created in 2011 and designed to avoid budget sequestration, failed. The supercommittee may be the “last best hope” after the bipartisan Kline-Miller Multiemployer Pension Reform Act of 2014 failed to resolve the multi-employer pension crisis.

EEOC Criminal Background Check Challenge. In a matter that the Buzz nearly forgot about, this week a federal district court in Texas enjoined the EEOC from enforcing its 2012 guidance on employers’ use of criminal background check information against the state of Texas. The court determined that the guidance “is a substantive rule issued without notice and the opportunity for comment” and therefore violated the Administrative Procedure Act. Though the decision could be appealed and may have limited applicability, it provides an interesting, albeit brief, commentary on agencies’ use of such sub-regulatory policymaking—something on which the Buzz has commented previously.

Ivankacare? Last week the Buzz noted the president’s nod to paid leave in his recent State of the Union address. Now POLITICO is reporting that the president’s daughter, Ivanka, and Senator Marco Rubio (R-FL) are teaming up to advance the issue on Capitol Hill. According to POLITICO, it appears that the enigmatic duo are advocating for an idea that was floated in the Wall Street Journal a couple of weeks ago and that is the brainchild of the Independent Women’s Forum. The plan would allow parents to draw early Social Security benefits for a period after the arrival of a child, in exchange for a delay in receiving their retirement benefits. Of course, this effort appears limited to parental leave and would not address paid leave under other circumstances, such as paid sick leave.

NLRB Nominee Hearing. On February 14, the Senate Health, Education, Labor and Pensions (HELP) Committee will hold a hearing on the nomination of John Ring to serve as a member of the NLRB. Ring’s appointment to the Board—whenever that might happen—would break the current 2–2 deadlock that has been in place since Philip Miscimarra’s term ended in mid-December 2017. Tune in to the hearing to see if Senate Democrats will welcome Ring with roses and chocolates.

The Ghost of David Weil? Is former Wage and Hour Administrator David Weil enforcing his now-scrapped Administrator’s Interpretations (AIs) from the grave? Earlier this week, Senator Rubio sent Secretary of Labor Alex Acosta a letter warning him that DOL officials might still be enforcing Weil’s AIs on independent contractors and joint employment. If this is the case, this episode is further evidence of the need to install a Senate-confirmed Wage and Hour Division administrator.

Olympic Pedigrees. The opening ceremonies of the 2018 Winter Olympics will air tonight, and the Buzz can’t wait to tune in to some riveting mixed doubles curling action. Speaking of the Olympics, did you know that three U.S. senators have represented the United States in the Olympic games? Wendell Anderson, who replaced Walter Mondale in 1976 when the latter was elected vice president, won a silver medal playing for the U.S. hockey team in the 1956 Winter Olympics in Cortina d’Ampezzo, Italy. Two future senators represented the United States in the 1964 Summer Olympics in Tokyo, Japan: Bill Bradley won a gold medal playing for the basketball team, and Ben Nighthorse Campbell participated in judo.

*Note: Due to the arrival of the Beltway Baby, there will be no Buzz on February 16. We will return on February 23.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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