Beltway Buzz - November 2018 #3

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Congress Sprints to the Finish. Congress is back after its Thanksgiving break, and it will be a busy few weeks before it adjourns (as we previously mentioned, Congress is scheduled to adjourn on December 14, 2018, though that date is flexible). Here is what to look out for, at least with regard to labor and employment policy:

  • Government funding runs out when the clock strikes midnight a week from today, December 7, 2018. While some appropriation bills have been passed (including the bill funding both the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB)), there is still significant work to be done. The big issue is how much congressional negotiators are going to fight over funding for the proposed border wall. Could other immigration-related matters be on the table as part of these negotiations? (See below.)
  • Nom, nom, nom. This isn’t just the sound of Sen. Mitch McConnell (R-KY) eating his Thanksgiving turkey last week, but it’s also likely what his priorities will be during these last few weeks. We know that the nominations include candidates for the federal bench (over 30 judicial nominees await a Senate floor vote), but we will be watching to see if this also includes a deal to fill vacancies at the DOL, NLRB, and Equal Employment Opportunity Commission (EEOC).

Multiemployer Pension News. Also sprinting to the finish is the Joint Select Committee on Solvency of Multiemployer Pension Plans, which has a deadline of [squints at notes] today (November 30, 2018) to propose a solution to the multiemployer pension plan crisis. A memo that leaked details of a potential solution to the Washington Post sent retirement policy wonks into a pre-Thanksgiving tizzy. According to the Post article, the committee’s proposal includes taxpayer subsidies to underfunded pensions, cuts to benefits, and increasing premiums. On issues like this, the Buzz looks to Milwaukee Brewers’ announcer Bob Uecker for guidance, who famously noted: “The way to catch a knuckleball is to wait until it stops rolling and then pick it up.” There may be many twists, turns, and last-minute changes before anything final comes out of the Joint Select Committee (including postponement of today’s arbitrary deadline), so we will avoid speculation and instead wait for the issue to stop rolling before we pick it up.

Elections’ Impact on Paid Leave. Paid leave will likely continue to be a hot-button issue in 2019, particularly with Democrats in control of the House of Representatives. But the results of this month’s elections have altered this landscape a bit. Republican Mimi Walters of California was the primary sponsor and champion of the Workflex in the 21st Century Act, but she lost her reelection bid. This means that business groups will have to find a new champion to support the bill, which encourages businesses to offer employees both paid leave and workplace flexibility.

Republicans Eye H-2B Expansion. This week the Washington Times reported that Republican lawmakers in both the Senate and House have agreed to a deal that would increase the number of H-2B visas issued annually from 66,000 to 132,000. In recent years, demand for the visas has far exceeded the 66,000 annual cap. According to the report, in exchange for the increased visa allotment, employers would be required to clear these workers through E-Verify. The report further indicates that the legislators may try to attach their changes to the end-of-year funding package mentioned above. If successful, this would be a significant victory for proponents of expanding employment-related visa programs.

DOL Watchdog Critical of Performance. Recently the DOL’s Office of Inspector General issued a report entitled, “Top Management and Performance Challenges Facing the U.S. Department of Labor.” The report details the “most serious management and performance challenges facing the U. S. Department of Labor (DOL).” The report contains some interesting findings, particularly for workplace safety and immigration experts. For example, the OIG concludes:

  • “OSHA and MSHA face challenges in determining how to best use their resources to help protect the workers’ safety and health, particularly in high-risk industries such as construction, forestry, fishing, agriculture, and mining. These challenges are exacerbated by underreporting of injuries by employers. Without reliable data regarding workplace injuries, OSHA and MSHA lack the information needed to effectively focus inspection and compliance efforts on the most hazardous workplaces.”
  • “OIG’s investigations have shown the FLC [foreign labor certification] programs, in particular the H-1B program that allows U.S. employers to temporarily employ foreign workers in specialty occupations, to be susceptible to significant fraud and abuse, often by dishonest immigration attorneys, employers, labor brokers, and organized criminal enterprises.”

Yowzers. Sounds like a call for more regulation. The Buzz will be watching.

Rock Won’t Get Rolled. It’s been a tough week for Michiganders. First, the University of Michigan’s football team suffered a humiliating loss to Ohio State. Then, the Detroit Lions’ historical ineptitude was the subject of a question on “Jeopardy!” Fortunately, the news hasn’t been all doom and gloom for residents of “The Wolverine State.” Recently, one of its native sons—Robert James Ritchie of Romeo—successfully defended himself from a complaint filed by the Federal Election Commission’s Office of the General Counsel. Ritchie, who is better known by his stage name, Kid Rock, was accused of violating the Federal Election Campaign Act of 1971 by allegedly becoming a candidate for the U.S. Senate in 2017 without filing the proper paperwork with the Federal Election Commission (FEC). The complaint alleged that Ritchie violated the act by creating a website at “kidrockforsenate.com” and selling “Kid Rock for U.S. Senate” merchandise. Like every other American, however, the FEC was quick to figure out that Ritchie wasn’t actually serious and that this was a publicity stunt to promote an album and tour, ruling that “we do not believe the record in this matter — the sale of concert themed merchandise by a musician who explicitly disclaimed candidacy — implicates concerns which are central to the Commission’s regulatory mission or deserving of its resources.” Presumably, Bloomfield Hills native and current Senator-elect Mitt Romney (R-UT) did everything by the book prior to launching his campaign(s).

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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