Kavanaugh Hearing. The United States Senate Committee on the Judiciary held a new hearing this week to address allegations of sexual assault made against Supreme Court justice nominee Brett Kavanaugh. Dr. Christine Blasey Ford’s testimony is here, and Judge Brett Kavanaugh’s testimony is here. Earlier today, the Committee voted to advance Judge Kavanaugh to the floor on a party-line vote of 11-10. There also appears to be a deal to potentially delay a floor vote for up to one week to allow for an FBI investigation into the allegations made against Judge Kavanaugh. We stated this last week, but it bears repeating: the impact of the entire process will be felt in our legal and political institutions for decades—regardless of the outcome. And while we are loath to make predictions, the Buzz is relatively confident that the Supreme Court will kick off its 2018 term this Monday with only eight justices.

Feds: Come in. We’re Open. Earlier today, President Trump signed a government funding package that will keep the federal government open until at least December 7, 2018.

Independent Contractor Rulemaking Coming? Bloomberg BNA has reported that Secretary of Labor Alexander Acosta said the Department of Labor (DOL) is considering proposing a rule to address the joint-employer issue. In addition, Acosta stated to Bloomberg that the department may also consider using rulemaking to clarify when workers—including so-called “gig economy” workers—are employees or independent contractors. Recall that one of Acosta’s initial acts as Secretary of Labor was to rescind two Obama-era administrator’s interpretations regarding joint employment and classification of independent contractors as employees under the Fair Labor Standards Act (FLSA). If these latest efforts come to fruition, it would essentially represent a “repeal and replace” of these two important policy matters.

Employee Email Use. This week there were a few developments concerning the National Labor Relations Board’s (NLRB) 2014 decision in Purple Communications, Inc. that permits employee use of company email for organizing purposes.

  • On September 24, 2018, at the request of the Board, the U.S. Court of Appeals for the Ninth Circuit stayed the pending appeal of the underlying Purple Communications decision in light of the Board’s review of the Caesars Entertainment Corporation case.
  • Additionally, readers may recall that last week we discussed the demand made by several Democratic U.S. senators that Member William Emanuel recuse himself from the Caesars Entertainment Corporation case. NLRB Chairman John F. Ring responded that “Board member recusals are to be handled by the NLRB's Designated Agency Ethics Officer (DAEO)” and that the Board “will continue to follow our prescribed government ethics requirements in connection with the [Caesars Entertainment Corporation] case.”
  • As a reminder, public feedback on Caesars Entertainment Corporation is due next week, on Friday, October 5, 2018.

H-4 EAD Update. In a court filing this week, the Department of Homeland Security (DHS) clarified when it might issue its pending proposal to rescind an Obama-era regulation that provides work authorization to spouses of H-1B visa holders. In the filing, DHS noted that it “anticipates that the rule will be submitted to OMB within three months.” After the Office of Management and Budget (OMB) reviews and clears the proposal, it will be released to the public for comment. So once again, the Buzz will amend its prediction for issuance of the notice of proposed rulemaking. With this information, it is likely that we won’t see a proposal until early 2019.

OSHA Injury and Illness Proposal. Comments are due today on the Occupational Safety and Health Administration’s (OSHA) proposed changes to its 2016 injury and illness reporting rule. As the Buzz has previously discussed, while the proposal simplifies the filing requirements for employers, it does not explicitly address some of the more controversial components of the 2016 final rule; namely, whether employers can maintain post-accident drug testing or safety incentive programs.

DOL Proposes Rule on Patient Lifts. On September 27, 2018, the DOL’s Wage and Hour Division (WHD) issued a notice of proposed rulemaking proposing to exempt power-driven patient lifts from the list of prohibited activities listed in the department’s Hazardous Occupations Orders. If finalized, the rule would allow 16- and 17-year-olds to operate patient lifts in healthcare settings. The proposal is consistent with the administration’s efforts to expand workforce and training opportunities. Comments are due on November 26, 2018.

Mine Safety News. The Federal Mine Safety and Health Review Commission (FMSHRC) is currently down to only two members, meaning that it does not have a quorum to review administrative law judges’ opinions. Supreme Court watchers may be reminded of the New Process Steel situation. Margaret S. Lopez has the details.

Law and Order. One of the more newsworthy aspects of this week’s Kavanaugh hearing was the use by judiciary committee Republicans of an outside counsel to ask questions. While this is an unusual practice, it is not unheard of. In fact, during the Watergate scandal, attorney Fred Thompson was retained as minority counsel by Republican senators on the United States Senate Watergate Committee (Thompson was 30 years old when the hearings began). Of course, Thompson then went on to become a lobbyist, then an actor, and then a senator for the state of Tennessee. Thompson even continued his acting career while serving as senator, as he had a regular role on NBC’s “Law & Order.”

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