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Total Articles: 92

Beltway Buzz, October 5, 2018

Kavanaugh and the Congressional Schedule. Earlier today, by a vote of 51-49, the U.S. Senate ended debate on the nomination of Judge Brett Kavanaugh to the Supreme Court of the United States. The vote was on party lines, though Sen. Joseph Manchin III (D-WV) voted “yes” while Sen. Lisa Ann Murkowski (R-AK) voted “no.” This sets up a final floor vote in the Senate late in the afternoon tomorrow. After that, Congress’s focus will be on the midterm elections. Indeed, it is unlikely that the Senate will address any major legislation between the Kavanaugh vote and the November 6 election, though there are still many unconfirmed nominees to various posts, and it is always possible that the Senate could move some of those before leaving town (the Senate’s last legislative day in D.C. is currently scheduled for October 26, but it could recess at any time). The U.S. House of Representatives is in recess until after the November 6 elections.

Beltway Buzz, September 28, 2018

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

Beltway Buzz, September 21, 2018

Kavanaugh Update. The Buzz predicted that the confirmation hearings of Brett Kavanaugh would be all-consuming, but even we underestimated how contested his nomination would become. Regardless of the outcome, the political effects of this ordeal will reverberate for years to come. It may affect not just future Supreme Court nomination battles, but legislative efforts as well, not to mention political campaigns and elections. Moreover, the Buzz wonders if this is a watershed event that will further raise the stakes at the Supreme Court, making the Court itself more and more politicized. For example, in the future, will a party in power be tempted to “pack the court” with justices in order to flip its political balance? We hope not, but our outlook is grim.

Beltway Buzz, September 7, 2018

September to Remember. Congress returned this week, and Capitol Hill policymakers are girding themselves for a busy month of September. Indeed, October 1—the start of the new fiscal year—looms large, so Congress will have just a few weeks to pass a spending package in order to avoid a government shutdown. October 1 is also the start of the Supreme Court’s 2018 term, and Republicans will try fervently to get Judge Brett Kavanaugh confirmed and seated in time for the first day of the term (more on this below). It’s shaping up to be a frantic few weeks in D.C.

Just in Time for Labor Day, DOL Creates Office of Compliance Initiatives and Unveils New Websites for Workers and Employers

The U.S. Department of Labor (DOL) has been celebrating the week leading up to Labor Day with a flurry of compliance-related activity. In addition to issuing several new opinion letters that provide guidance to employers under the Fair Labor Standards Act and the Family and Medical Leave Act, the DOL announced the creation of the Office of Compliance Initiatives (OCI) and unveiled two new websites, and

Beltway Buzz, August 24, 2018

Mark Your Calendar. National Labor Relations Board (NLRB) Member Mark Gaston Pearce’s term comes to end on Monday, August 27, 2018. Suffice it to say that most employers won’t exactly be sorry to see him go. Indeed, during his years on the Board, Pearce was instrumental in rolling out some of the Board’s most controversial initiatives, such as the “ambush” election regulations, the Specialty Healthcare decision that allowed unions to gerrymander bargaining units, and the dramatic expansion of the Board’s joint-employer standard. Traditionally, presidents do not rush to fill minority-party vacancies at the Board, as this allows the majority to operate at a more efficient pace. Still, rumors persist that Pearce may receive a third appointment as part of a broader package deal of nominees. The Buzz will be watching closely. The Wall Street Journal has an interesting editorial on the entire situation.

Beltway Buzz, August 17, 2018

SCOTUS Nominee Hearing. The Senate Judiciary Committee has set September 4, 2018, for the start of Supreme Court nominee Brett Kavanaugh’s confirmation hearings. This is less than one month before the Court’s next term kicks off on October 1, and in that time Kavanaugh supporters in the Senate will have to hold hearings, move Kavanaugh through the Judiciary Committee, and get him confirmed on the Senate floor. This will be a hectic September, especially considering that there are other matters that the Senate must attend to, like Fiscal Year 2019 government funding. And if this footage of Kavanaugh simply arriving for a meeting with Sen. Heidi Heitkamp (D-ND) is any indication, the hearings are bound to be a media circus.

Beltway Buzz, August 10, 2018

ALJs A-OK at NLRB. In a June 2018 case called Lucia v. Securities and Exchange Commission, the Supreme Court of the United States ruled that Securities and Exchange Commission (SEC) administrative law judges (ALJs) were not properly appointed under the Constitution’s Appointments Clause because they are inferior officers who must be appointed by the president, a court of law, or a head of department.

Beltway Buzz, August 3, 2018

Both the House and Senate are out on August recess (though the Senate returns on August 15), but that does not stop the D.C. labor and employment policy machine from continuing to crank out widgets. Here is your Beltway Buzz.

Beltway Buzz, July 27, 2018

OSHA Record-Keeping Proposal Released. On July 26, 2018, the Occupational Safety and Health Administration (OSHA) issued a pre-Federal Register version of its proposed rule to amend its 2016 injury and illness recordkeeping regulation. The proposed rule aims to eliminate the requirement that establishments with 250 or more employees electronically file Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injuries and Illnesses Incident Report) but require that the establishments file Form 300A (Summary of Work-Related Injuries and Illnesses). At least after our quick initial review, it does not appear that the proposal addresses controversial provisions of the 2016 rule that are designed to prevent employers from retaliating against employees for reporting work-related injuries or illnesses.

Beltway Buzz, July 20, 2018

See Ya Later, Persuader. It took more than eight years, but the U.S. Department of Labor’s (DOL) persuader rule has finally been rescinded. Proposed just one day prior to the National Labor Relations Board’s (NLRB) 2011 ambush elections proposal, the persuader rule would have required employers and their attorneys or consultants to publicly disclose agreements they entered into regarding labor relations matters. Of course, the rule—which was finalized in April 2016—never went into effect as it was permanently enjoined in November 2016. The DOL offered several reasons for rescinding the 2016 interpretation including the fact that it impermissibly required reporting of activity that plainly constitutes “advice,” which is explicitly protected from reporting under the Labor-Management Reporting and Disclosure Act. This being Washington, D.C., however, the persuader reporting concept will never truly be dead, as it lives on in proposed legislation that the Buzz has recently discussed: the Workplace Democracy Act and the Workers’ Freedom to Negotiate Act. But that’s another story . . .

Beltway Buzz, July 13, 2018

Always a Bridesmaid . . . Well, the Buzz waited patiently for an important call on Monday night, but we were passed over (again). Instead, President Trump nominated Brett Kavanaugh—currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit—to replace Justice Anthony Kennedy on the Supreme Court of the United States. Hera S. Arsen has the details. And if a judge is best evaluated on his or her dissents, another interesting examination of Kavanaugh’s record is this list of his dissents (notice the first case in particular, dealing with “alter egos” under the National Labor Relations Act). Some other thoughts on the nomination:

Brett Kavanaugh Nominated to U.S. Supreme Court

In the wake of Justice Anthony Kennedy’s retirement, President Donald Trump was presented with the rare opportunity to make his second U.S. Supreme Court nomination in as many years, nominating the Honorable Brett M. Kavanaugh to succeed Justice Kennedy. If confirmed by the Senate, Judge Kavanaugh would bring more than a dozen years of judicial experience to the position.

A Closer Look at Trump's Latest SCOTUS Nominee: Brett Kavanaugh

On July 9, 2018, President Trump nominated Judge Brett M. Kavanaugh to potentially fill the impending U.S. Supreme Court vacancy created by Justice Anthony Kennedy’s retirement, which takes effect on July 31, 2018. Judge Kavanaugh currently sits on the U.S. Court of Appeals for the D.C. Circuit. He has consistently demonstrated conservative legal reasoning as an appellate judge and is likely to bring that perspective to the Supreme Court, if confirmed.

Beltway Buzz, June 29, 2018

Kennedy Steps Down. In a week of significant political developments, perhaps the most significant was Supreme Court Justice Anthony Kennedy’s June 27 announcement that he is resigning effective July 31, 2018. The vacancy provides President Trump an opportunity to cement a conservative voting block in the Court for years to come and also provides Republicans with political momentum heading into the November elections. President Trump has promised to select his nominee to replace Kennedy from the 25-person list that the White House had previously made public. Senate Majority Leader Mitch McConnell (R-KY) has promised a vote on the eventual nominee in the fall, before the first day of the Court’s next term in October. While there will be much theorizing about this development in the coming weeks, the Buzz will, as always, be watching for its impact on labor and employment issues (such as whether a newly-formed Court may opine on whether sexual orientation is protected under Title VII of the Civil Rights Act of 1964).

Justice Kennedy Retires From Supreme Court, Setting Stage for Likely Confirmation Battle

Justice Anthony Kennedy, the US Supreme Court's frequent swing voter on a host of key issues, announced his retirement on the final day of the Court's term. Justice Kennedy's 31-year tenure made him the longest active -serving member of the Court, but more important were his deciding votes in cases involving same-sex marriage, affirmative action, labor law and other key areas.

Latest Merger News: Proposal to Merge Departments of Labor and Education

Early in the Trump Administration, it was proposed to move OFCCP into the EEOC. Congress subsequently rejected the budget proposal containing the proposed merger and the idea was put to rest.

Beltway Buzz, June 22, 2018

Agency Overhaul Proposal Announced. On June 21, the Trump administration issued a sweeping proposal to consolidate and streamline federal agencies. Of particular significance to the Buzz is the proposal to combine the departments of education and labor into the Department of Education and the Workforce. The administration maintains that this consolidation will “allow the Federal Government to address the educational and skill needs of American students and workers in a coordinated way, eliminating duplication of effort between the two agencies and maximizing the effectiveness of skill-building efforts.” As it has with most D.C. initiatives, the Buzz has seen this movie before: the Department of Education has been on the chopping block since its inception. The Buzz isn’t sure what makes this time better than any of the other times, so we will go out on a limb and predict that this merger won’t happen anytime soon.

Supreme Court Holds SEC ALJs Must Be Appointed by Agency Heads

On June 21, 2018, the Supreme Court of the United States held in Lucia v. Securities and Exchange Commission that the former practice of the Securities and Exchange Commission (SEC) of having its staff employees appoint administrative law judges (ALJs) violated the Appointments Clause of the U.S. Constitution.

Beltway Buzz, June 15, 2018

Our Washington Capitals fever is breaking here in D.C. but not before local area legislators introduced a resolution in the House of Representatives congratulating the team on their recent Stanley Cup victory. No surprise here. After all, at least some authorities argue that the phrase “jumping on the bandwagon” started in politics. Here is your Beltway Buzz.

Beltway Buzz, June 8, 2018

Finally, some good news to report from our nation’s capital, as the Washington Capitals won their first ever Stanley Cup last night. Here is your Beltway Buzz.

Beltway Buzz, May 25, 2018

No, this week’s edition of the Buzz will not be in #ALLCAPS, but folks in D.C. are certainly excited that their hockey team made it to the Stanley Cup Final. If the District had any meaningful representation in Congress at all, we’re sure they’d be making friendly bets with their Nevadan counterparts over the outcome of the series. So let’s go Caps, and here is your Beltway Buzz.

Beltway Buzz, May 18, 2018

The Buzz returns renewed and reenergized from last week’s highly successful Workplace Strategies conference in Phoenix, Arizona, where approximately 800 employer representatives gathered with Ogletree Deakins lawyers to discuss current developments and the future outlook for all aspects of labor and employment law (if you missed this year’s event, be sure to join us at the Bellagio in Las Vegas in 2019). Overheard at Workplace Strategies: “Is that beer-packing burro an employee or an independent contractor?”

Agencies Release Regulatory Roadmap for 2018 and Beyond

The latest Unified Agenda of Regulatory and Deregulatory Actions ("spring agenda") continues this administration's trend of adding fewer new rules and reexamining older ones. These semiannual agendas provide insight into federal agency priorities for the coming year. While the list of upcoming rules is relatively pared down compared to those issued during the prior administration, there are still a few surprises in the spring agenda. Notably, the Department of Labor (DOL) is pushing the issuance of a new proposed rule governing overtime into 2019, and the National Labor Relations Board (NLRB) is considering drafting a rule on joint employment. Some highlights of the spring agenda are discussed below.

What the Spring 2018 Regulatory Agenda Reveals About Future Labor and Employment Policy

On May 9, 2018, the U.S. Department of Labor (DOL), the National Labor Relations Board (NLRB), and the U.S. Equal Employment Opportunity Commission (EEOC) released their spring 2018 regulatory agendas. There were a few surprises.

Beltway Buzz, March 2, 2018

NLRB Returns to Amorphous Joint-Employer Standard. Talk about policy oscillation: the National Labor Relations Board’s (NLRB) joint-employer recusal debacle continued this week, perhaps coming to an abrupt end (for now). In a stunning development, the Board vacated its December 2017 decision in Hy-Brand Industrial Contractors, Ltd., following a determination from the Board’s ethics official that Member William Emanuel should not have participated in the case because his previous law firm represented a party in another case (Browning-Ferris Industries) that dealt with the same issue.

President's FY 2019 Budget Proposal Signals Cuts to Labor and Employment Funding

President Trump's budget proposal for fiscal year 2019 indicates the administration intends to scale back the Department of Labor (DOL) and National Labor Relations Board (NLRB). The White House is also interested in crafting a new parent paid leave program administered through the unemployment insurance system, boosting apprenticeship programs, and mandating the use of E-Verify.

Beltway Buzz, January 19, 2018

Shutdown Showdown. Trying to keep track of the media reports on the negotiations being conducted to avoid a government shutdown has the Buzz feeling as confused as Lou Costello in his famous routine with his partner Bud Abbott (“What?” “Why?” “Who said what?”).

Review, Revise or Rescind – Agency Plans and Unified Agenda Reveal More Regulatory Editing is in Store for 2018

The Trump administration's Unified Agenda of Regulatory and Deregulatory Actions ("regulatory agenda"), released on December 14, 2017, indicates agencies are taking a hard look at existing rules, and treading lightly with new ones. The fall regulatory agenda outlines each agency's rulemaking efforts at any stage in the process—from requests for information to final regulations—and gives estimated timelines for completion. This information provides insight into an agency's priorities and what employers can expect in the coming months.

Beltway Buzz, December 1, 2017

The 12 Days (or so) of Congress. Congress has returned to D.C. after a weeklong Thanksgiving break, and the Trump administration and Republican lawmakers are determined to complete an extensive holiday wish list. For starters, government funding runs out in just one week (on December 8), and the risk of a shutdown looms. The most likely outcome is that Congress will buy itself some much-needed time by kicking the can down the road with another continuing resolution. Then a week after that, Congress is scheduled to adjourn until the new year, though this date could be extended. So besides funding the government, what else is on that wish list? Just some minor issues like comprehensive tax reform, hurricane disaster relief, health insurance market stabilization, reauthorization of the Children’s Health Insurance Program, Iran sanctions, and nominations. Oh, and the Deferred Action for Childhood Arrivals (DACA) fix. Clearly, this is a lot to accomplish in a short period of time.

Agency Heads Discuss Changes in Regulatory Direction During Federalist Society Panel

The current leaders of the Department of Labor, Equal Employment Opportunity Commission, and National Labor Relations Board addressed transitions and regulatory plans at their respective agencies at a November 16 forum. The Federalist Society, a conservative think-tank, sponsored the panel discussion during which the speakers advocated a more common-sense approach to rulemaking, and supported the Trump administration's efforts to rescind or scale back some of the prior administration's more onerous rules.

Labor Secretary Discusses DOL Priorities During House Committee Hearing

Labor Secretary Alexander Acosta fielded a range of questions on the DOL's priorities during a November 15 hearing before the House Committee on Education and the Workforce. Although members of the Committee inquired about past, current, and future rulemaking and other Department initiatives, the limited duration of Wednesday's hearing allowed Secretary Acosta to deliver only brief responses. The hearing did, however, provide some insight into the DOL's stance on health care, OSHA enforcement, overtime rulemaking authority, apprenticeship, and other workplace concerns.

WPI Insider Briefing: Will the New Composition of Federal Agencies Effect Change?

Nine months into President Trump’s term, the pace of nominations and appointments to fill critical position within his administration is accelerating. Action on the nominations to the National Labor Relations Board (NLRB), Equal Employment Opportunity Commission (EEOC) and Department of Labor (DOL) signals that widely expected changes in workplace policy are indeed forthcoming.

Acosta and Lipnic Share DOL and EEOC Priorities

WASHINGTON, DC - The priority for the US Department of Labor (DOL) is "jobs, jobs and even more jobs," Secretary of Labor Alexander Acosta told an assembly of in-house counsel today. Also addressing the group, the acting chair of the Equal Employment Opportunity Commission (EEOC), Commissioner Victoria Lipnic, said the EEOC needs to change course on pursuing systemic lawsuits and touted the agency's success in reducing its backlog of charges.

The Department of Health and Human Services Revises Drug Testing Custody and Control Form

Executive Summary: On August 8, 2017, the Department of Health and Human Services (HHS) announced that the Office of Management and Budget approved its revised Federal Drug Testing Custody and Control Form (CCF). However, Department of Transportation (DOT)-regulated employers should not use the revised CCF at this time since the DOT has not authorized testing for new synthetic opioids included on the form and has not approved use of the new form.

SCA Contractors: Fringe Benefit Rate to Increase With Adjustment for Executive Order 13706

For those government contractors that perform work on contracts covered by the McNamara-O’Hara Service Contract Act (SCA) and are also subject to Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors, there is a bit of good news out of the U.S. Department of Labor’s Wage and Hour Division (WHD). On July 25, 2017, the WHD announced changes to the health and welfare fringe benefit rate for SCA-covered contracts in All Agency Memorandum Number 225 (AAM No. 225). As announced in AAM No. 225, the new health and welfare fringe benefit rate under the SCA will be $4.41 per hour or $176.400 per week or $764.40 per month, effective August 1, 2017. This means that the WHD will incorporate the $4.41 health and welfare fringe benefit rate in any new SCA wage determinations it issues on or after August 1, 2017. This new rate represents an increase of $0.14 per hour over the 2016 rate of $4.27 an hour that became effective on July 29, 2016.

Federal Agencies Scale Back Their Workplace Regulatory Ambitions

During the prior administration, congressional gridlock prevented many significant labor and employment bills from advancing. Federal agencies picked up the slack, issuing several rules to help carry out much of President Obama's workplace agenda. The latest Unified Agenda of Regulatory and Deregulatory Actions, which lists agency regulatory priorities f

11 New Federal Court Appointees Named, Confirmations Critical for Labor and Employment Policy

On July 13, 2017, President Donald Trump announced the nomination of 11 new judicial appointments to federal courts throughout 5 states—Alabama, Georgia, North Carolina, Oklahoma, and Tennessee. The nominees include a shareholder in Ogletree Deakins’ Raleigh, North Carolina office, Thomas A. Farr. The judicial appointments should be confirmed quickly by simple majority vote.

. . . And Then They Invoked the Nuclear Option: Gorsuch’s Nomination to be Confirmed

On April 6, 2017, Senate Republicans invoked the nuclear option—clearing the road for the confirmation of Supreme Court nominee Neil M. Gorsuch. As a result, Gorsuch’s nomination to the Supreme Court of the United States is expected to be confirmed by a simple majority vote rather than a supermajority of 60 votes.

Trump’s Cabinet Picks Begin Senate Confirmation Process

With the approach of Inauguration Day, the Senate confirmation process for President-elect Donald Trump’s cabinet picks is in full swing. Televised or streamed hearings are taking place involving Trump’s choices to lead the U.S. Department of Labor, Department of Health and Human Services, Department of Homeland Security, and the Justice Department.

White House Announces Release of Final Contractor Blacklisting Rules: Phased Implementation for Prime Contractors and Subcontractors

The long wait for the so-called “contractor blacklisting” rules is over. According to a fact sheet released by the White House, final regulations and guidance will be released on August 24, 2016 and published in the Federal Register on the following day. The final regulations and guidance (the final rules) are being issued by the Federal Acquisition Regulatory Council (FAR Council) and the U.S. Department of Labor (DOL) to implement Executive Order No. 13673, Fair Pay and Safe Workplaces (EO 13673), which President Obama signed in July 2014. In addition, the president also amended EO 13673, just before the White House’s blacklisting announcement, to add language that seems intended to better insulate the final rules against litigation challenging their constitutionality and their conflict with other federal statutes. Based on the White House’s summary and the amended executive order published on the White House’s website, here is what we know about the contours of the final rules:

Federal Standard Per Diem Rates Increase for Fiscal Year 2017

The General Services Administration (GSA) has announced the per diem rates that apply to the lower 48 Continental United States (CONUS) for the federal government's fiscal year 2017, which begins October 1, 2016.

Penalties Increase for Workplace Violations: Compliance Incentive or Employer Burden?

Many enforcement agencies posit that the existence of penalty provisions provide an incentive for compliance not just for the employer subject to a penalty, but for other employers as well. The Department of Labor (DOL) describes the “benefits of penalties,” such as leveling the playing field for compliant employers by punishing those bad actors that may cut corners.

New, Relaxed Regulations Make Drone Use on Construction Projects Easier

The Federal Aviation Administration (FAA) recently introduced relaxed regulations concerning the use of drones for commercial purposes. The new regulations could have a significant impact on drone usage in the construction industry.

Follow the Money: The FY 2017 Budget

One way to assess an administration's public policy priorities is by examining its annual budget submission to Congress: The higher an administration sets its funding requests for particular federal departments, agencies, and programs, the greater the emphasis the administration plans to place on selected public policy goals.

What To Expect When You're Not Expecting: How To Handle Unplanned Visits From Federal Agencies

The unannounced arrival of an investigator from a federal agency is an unwelcome business interruption which can be a drain on productive time and arouse collective anxiety in your business environment. Effective management of the investigation from the very beginning is critical to achieving the best possible outcome, no matter which agency comes calling.

Joint Employment Is the Focus of DOL's Latest Interpretation

Employers that use third-party management companies, independent contractors, staffing agencies or labor providers are on notice: the US Department of Labor (DOL) says many of these relationships constitute joint employment that makes both parties liable for any minimum wage and overtime violations.

Proposal Would Prohibit Government Contractors’ Confidentiality Agreements Restricting Employees’ Reporting of Alleged Fraud, Waste, or Abuse

The Federal Acquisition Regulatory Council has proposed a rule barring employers from using confidentiality agreements that restrict employees or subcontractors from reporting “waste, fraud or abuse” to the government.

Congress Approves Spending and Tax Measures; Key Labor and Employment "Riders" Omitted from Bipartisan Funding Agreement

Considered the last legislative feat of 2015, Congress approved a massive tax and spending package on Friday that includes some positive and negative provisions for employers. The Omnibus Appropriations Act funds the federal government through September 2016—thus averting a possible government shutdown—and includes a separate $600 billion tax component. Of the $1.1 trillion spending portion, $12.2 billion will be allocated to the Department of Labor, $274 million to the National Labor Relations Board, and $364.5 million to the Equal Employment Opportunity Commission. These allocations include some stipulations on how the money can be spent, but failed to block several controversial actions by the DOL and NLRB.

Agencies Issue Final Rules Governing Contractor Minimum Wage, Whistleblower Protections

On December 4, 2015, three federal agencies1 published a final rule amending the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O.) 13658, Establishing a Minimum Wage for Contractors. The same day, the same federal agencies also published a separate rule finalizing a statutory pilot program to enhance whistleblower protections for contractor employees. As legislation to raise the federal minimum wage and carry out other items on the Obama Administration’s workplace policy agenda remain stalled in Congress, the President has repeatedly turned to executive action to advance these initiatives, at least for federal contractors.

Washington Snapshot: Leadership Contests and a Push to Break Legislative Limbo in the Nation’s Capital

For many in the country, the term "Washington leadership" is an oxymoron, and calling someone a "Washington insider" may be an epithet rather than a compliment. The truth remains, however, that developments in Washington, D.C., especially at the federal regulatory agencies, significantly impact those affected by federal labor and employment laws.

Potential October 1 Government Shutdown: Federal Contractors’ Contingency Planning

A federal government shutdown looms as current funding expires on September 30 and government leaders disagree on funding legislation. The present shutdown threat is fueled by two primary issues set against the backdrop of presidential election posturing by both political parties. President Barack Obama has announced that he will not follow the sequestration cuts the government forced upon itself in 2013 (the last time a partial government shutdown occurred), when it failed to agree on funding. Conservative Republican leaders have vowed to link defunding of Planned Parenthood to passing spending legislation. While leaders of the Republican-controlled Congress have vowed to avoid an unpopular government shutdown, this same vow was made in 2013.

House and Senate Appropriations Committees Approve Funding Bills with Riders Targeting DOL, NLRB Initiatives

Both the House and Senate Appropriations Committees advanced bills this week to fund various federal agencies for FY 2016. Each chamber approved versions of spending measures that include riders prohibiting funding for a variety of the administration's regulatory initiatives.

Appropriations Subcommittee Rejects Efforts to Strip Funding Bill of Pro-Employer Riders

The day after the House Appropriations Committee released a draft bill that would significantly limit certain federal agency rules and initiatives, the Subcommittee on Labor, Health and Human Services, and Education held a markup session of the measure. As previously discussed, riders in the draft appropriations bill would, among other things, prevent any funds from being used to enforce the National Labor Relations Board's representation election rule, as well as its efforts to re-define "joint employment" under the National Labor Relations Act and assert jurisdiction over Native American businesses on tribal lands. Riders also would curtail several Department of Labor initiatives, such as its intent to re-define who qualifies as a "fiduciary" under ERISA, and prohibit funds from being used to create an Office of Labor Compliance. This Office will be integral to the enforcement of the President's Fair Pay and Safe Workplaces Executive Order, often referred to as the "blacklisting" executive order. Other riders would effectively de-fund implementation of the Affordable Care Act.

Draft Appropriations Bill Seeks to De-Fund Various Regulatory Efforts

A draft House appropriations bill to fund various federal agencies, including the Department of Labor, for Fiscal Year 2016 includes several provisions that would effectively halt a number of controversial regulatory efforts. Including stipulations on how federal appropriations are spent is one way to prevent agency rules or initiatives from moving forward.

DOL Investigation Tactics and Pending Proposed Rule Come Under Fire During House Hearing

In anticipation of the imminent release of the Department of Labor's proposed rule revising the white collar overtime exemption under the Fair Labor Standards Act (FLSA), the House Subcommittee on Workforce Protections held a hearing on Wednesday to discuss federal wage and hour standards. Panelists and lawmakers were particularly concerned about the pending regulatory changes to the FLSA, and were critical of the Wage and Hour Division's recent enforcement tactics.

DOL Investigation Tactics and Pending Proposed Rule Come Under Fire During House Hearing

In anticipation of the imminent release of the Department of Labor's proposed rule revising the white collar overtime exemption under the Fair Labor Standards Act (FLSA), the House Subcommittee on Workforce Protections held a hearing on Wednesday to discuss federal wage and hour standards. Panelists and lawmakers were particularly concerned about the pending regulatory changes to the FLSA, and were critical of the Wage and Hour Division's recent enforcement tactics.

Federal Contractors To Be Burdened With Additional Disclosure Requirements If Government Has Its Say

The U.S. Labor Department (DOL) and three federal agencies (the Department of Defense, the General Services Administration and NASA) recently issued two proposed documents relating to the implementation of Executive Order 13673, better known as the Fair Pay and Safe Workplaces Executive Order. If enacted, these proposals would be problematic and burdensome for federal contractors; those who wish to have their voices heard on the matter have a July 27, 2015 deadline to submit comments on both documents.

"Fair Pay and Safe Workplaces" Provisions Proposed

The U.S. Labor Department, the Defense Department, the General Services Administration, and NASA have jointly published proposed requirements and related guidance under Executive Order 13673, the "Fair Pay and Safe Workplaces Executive Order".

Hang Up After Hours? The Spring 2015 Regulatory Agenda Tackles This and Other Overtime Issues

On Thursday, May 21, 2015, the White House, through its executive branch and other federal agencies, issued the Spring 2015 edition of the Semiannual Regulatory Agenda. Published twice a year, the agencies’ regulatory agendas provide an outlook on regulatory activity, identify agency priorities, and offer additional details about the most significant actions the agencies intend to take in the coming year. The Spring 2015 Regulatory Agenda incorporates plans for the executive departments and various federal agencies, including the U.S. Department of Labor (DOL). In particular, the DOL’s Wage and Hour Division (WHD) includes a regulatory item related to the time employees spend on their electronic devices after-hours and outside of the workplace, and continues to include the item on overtime exemptions.

New Department of Labor Agenda Delays Persuader Rules Again; Announces Other Priorities

For the past several years, we have been tracking the U.S. Department of Labor’s (DOL) consideration of new regulations that would significantly narrow the DOL’s interpretation of the Labor-Management Reporting and Disclosure Act (LMRDA) that has been in force since 1962. Dubbed the “persuader rules,” the regulations address Section 203 of the LMRDA, which, among other things, requires employers to file reports with the DOL when they hire consultants or contractors (including attorneys) to persuade employees on the issue of unions.

Blacklisting Proposed Rule and DOL Guidance Could Have Serious Repercussions for Those Doing Business with the Federal Government

On May 28, 2015, the Federal Acquisition Regulatory (FAR) Council published in the Federal Register its highly anticipated Notice of Proposed Rulemaking (NPRM) regarding the so-called "blacklisting" procedures ordered by President Obama in his Fair Pay and Safe Workplaces Executive Order (EO). Accompanying the proposed rule was separate guidance issued by the Department of Labor (DOL).

"Fair Pay and Safe Workplaces" Guidance Explains Broad Labor Reporting Requirements for Federal Contractors

Today, the U.S. Department of Labor (DOL) published proposed guidance addressing the controversial Fair Pay and Safe Workplaces Executive Order 13673, which President Obama signed on July 31, 2014 (80 Fed. Reg. 30574 (May 28, 2015)). The Federal Acquisition Regulatory (FAR) Council also issued proposed regulations integrating the executive order’s requirements and the provisions of the Labor Department’s guidance into existing procurement regulations (80 Fed. Reg. 30548 (May 28, 2015)).

Agencies Issue Proposed Rule, Guidance on Blacklisting Executive Order

The federal agencies charged with implementing President Obama's July 31, 2014 Fair Pay and Safe Workplaces Executive Order1 have released their much-anticipated proposed rule on this directive. On May 27, 2015, the Department of Labor (DOL) issued a 106-page proposed guidance document, and the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA), issued a 131-page proposed rule, governing the terms of the so-called "blacklisting" Executive Order (EO). If finalized in their current form, the rule and guidance would immediately upend the current system of federal contracting by enabling federal agencies to reject a bid or cancel an existing contract – as well as initiate suspension and debarment proceedings – based on labor and employment law violations that a contractor may have already resolved or that have already been adjudicated.

Fifth Circuit Rejects Obama Administration's Effort to Free Executive Actions From Injunction

On May 26, 2015 a three judge panel for the Fifth Circuit Court of Appeals rejected a request by the Obama administration to lift an injunction currently blocking aspects of President Obama’s executive action on immigration. The injunction, imposed by U.S. District Judge Andrew Hanen on February 16, 2015, in response to a suit brought by representatives from 26 states opposing President Obama’s executive action, applied specifically to the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program and the expansion of the Deferred Action for Childhood Arrivals program—known as DAPA and DACA respectively.

Spring Regulatory Agenda Sets Forth New Deadlines, Proposals

In keeping with past practice, federal agencies released their spring regulatory agendas on the eve of a holiday weekend. These semiannual reports list all of the federal agency regulations currently under development or review. Notably, these reports include anticipated release dates for proposed or final regulations. While often aspirational, these dates provide some insight into the agencies' priorities for the next six months. The following highlights some key pending regulatory actions from the spring agenda.

Supreme Court Rejects Notice and Comment Rulemaking Requirement for Agency Interpretations

In a case we labeled one of the “cases to watch” this term, a relatively unified Supreme Court decided in Perez v. Mortgage Bankers Association that a federal agency does not need to engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act (APA) before it can significantly alter an interpretive rule of an agency regulation, even if parties have relied on that rule to their detriment.

Supreme Court Paralyzes Paralyzed Veterans Doctrine, Affords Greater Deference To Federal Agencies

Today, in a 9-0 decision, the U.S. Supreme Court abolished a precedent on which the regulated community has relied to keep federal agencies in check for nearly 20 years. This precedent, commonly referred to as the Paralyzed Veterans doctrine, required a federal agency to engage in notice-and-comment rulemaking before revising its definitive interpretation of a regulation. In its departure from the Paralyzed Veterans doctrine, the Supreme Court paved the way for even greater deference to federal agencies. According to the Court, the Paralyzed Veterans doctrine is contrary to the clear text of the Administrative Procedures Act’s rulemaking provisions and improperly imposes on agencies an obligation beyond the Administrative Procedures Act’s maximum procedural requirements. Perez v. Mortgage Bankers Association consolidated with Nickols v. Mortgage Bankers Association.

Supreme Court Eliminates Notice-and-Comments for Some Agency Interpretations

On March 9, 2015, the Supreme Court of the United States ruled that the Paralyzed Veterans doctrine, which requires an agency to use the notice-and-comment procedures of the Administrative Procedure Act (APA) when issuing a new interpretation of a regulation that deviates significantly from a previously adopted interpretation, is not consistent with the APA. According to the court, the doctrine—which benefited employers by assuring them that a federal agency interpretation of a regulation could not be changed without a significant undertaking—is contrary to the clear text of the APA’s rulemaking provisions and improperly imposes on agencies an obligation beyond the APA’s maximum procedural requirements.

Administration Publishes Fall 2014 Unified Regulatory Agenda

We expect 2015 to be a very busy year for actions on new or proposed federal regulations in the absence of congressional legislation. That was confirmed on November 21, 2014, when the administration published its “Unified Regulatory Agenda for Fall 2014” (Fall 2014 Regulatory Agenda) online at, a website of the Office of Information and Regulatory Affairs. The regulatory agenda is designed to inform the public of the current status and future outlook of proposed federal regulations. The current agenda for labor and employment regulations reveals the federal agencies’ progress on over 75 separate rules, including several significant regulatory proposals from the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA), Office of Labor-Management Standards(OLMS), Wage and Hour Division (WHD), and Office of Federal Contract Compliance Programs (OFCCP), as well as the National Labor Relations Board (NLRB) and the Federal Acquisition Regulatory (FAR) Council.

What Has the “Nuclear Option” Wrought?

With the Obama administration unable to get labor and employment law changes through a gridlocked Congress, one of its significant accomplishments and lasting legacies may be its remarkable record of reshaping federal regulatory agencies and the federal judiciary.

President Obama Issues Two Executive Orders in 10-Day Period

President Obama issued the Fair Pay and Safe Workplaces Executive Order on Wednesday, July 30 only 10 days after prohibiting federal contractors from discriminating based on sexual orientation and gender identity, in the Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity Executive Order. These two Executive Orders add more compliance obligations for employers that choose to do business with the federal government.

Why President Obama Forbade Retaliation By Federal Contractors Against Employees Who Share Their Compensation Information

President Obama reiterated existing federal law when he recently acted to prevent federal contractors from retaliating against workers who share their salary information.

eLABORate: Big News For Federal Contractors

President Barack Obama announced last week that he is acting unilaterally to raise the minimum wage for new federal contract workers.

What's open (Mount Rushmore) and what's closed (the IRS, e-Verify, and the OFCCP). Here's the latest information.

Well, at least Mount Rushmore is open again, along with the Stuatue of Liberty and the Grand Canyon. But for most of the Administrative Agencies related to labor and employment, things haven't gotten much better since last week, and the deadlock in D.C. continues. Here's the latest information available:

Business As Usual As The Government Shutdown Begins

As many have anticipated, the U.S. government today closed a number of its non-essential services. Because of last night’s congressional stalemate over a spending plan and policy differences over the Affordable Care Act, Congress failed to pass a budget. As a result, many key government agencies upon which employers regularly rely are also closed and will remain closed for the duration of the shutdown.

The Government Shutdown: Will It Shut Down Your Company?

Today marks the first partial federal government shutdown in 17 years (the last shutdown, which occurred during the Clinton administration lasted 21 days). The shutdown started last night when the midnight deadline to extend congressional spending authority passed without an agreement on a spending plan.

What's happening out there? The effect of the government shutdown on its agencies.

At this time, courts and agencies have issued the following notices regarding the government shutdown and its impact on access and deadlines.

Legal Alert: Federal Courts Deal a Blow to DOL Regulatory Efforts

Executive Summary: Recently, two different federal courts have invalidated statutory interpretations by the Department of Labor's Wage and Hour Division (WHD). Generally, WHD may create regulations on its own to assist in clarifying ambiguities and to fill statutory gaps within the Fair Labor Standards Act (FLSA). The current administration has used this administrative process to modify the law in ways that advance its agenda, often without much, if any, input from employers. The federal court decisions striking down the DOL's aggressive campaign to modify wage-and-hour law through the regulatory process will hopefully send a message that the DOL must stay within the powers delegated to it by Congress, including obtaining employer perspectives when necessary.

Federal Labor and Employment Agencies’ Budgets Increase to Provide More Scrutiny of Your Business

The proposed budget for fiscal year 2014 provides a cash infusion to three federal agencies that are a thorn in the side of many employers: the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and the National Labor Relations Board (“NLRB”). With increased funding, we can expect increased scrutiny. Here is what you need to know for each agency.

President Obama Proposes Funding Increases for Labor and Employment Agencies in FY2014 Budget

On April 10, President Obama unveiled his $3.78 trillion proposed budget for FY2014. The proposed budget included funding increases for several agencies charged with administering and enforcing the nation’s major labor and employment laws.

Wanted: Regulatory Agendas for 2012

Under the Regulatory Flexibility Act, the federal government is required to give notice of significant rulemaking activities by publishing semi-annual regulatory agendas (unified agendas) that describe current and intended activity on federal regulations and standards. Typically, the Office of Information and Regulatory Affairs (OIRA) issues an April regulatory agenda sometime during the summer and an October regulatory agenda sometime in the winter.

Supreme Court Plants Roadblock For Federal Employees Bringing Employment Claims

Representing a victory for the federal government, the U. S. Supreme Court held today that federal employees do not have a right to challenge their terminations from employment in federal district court on constitutional grounds. The ruling reinforces the statutory scheme of the Civil Service Reform Act, which establishes the Merit Systems Protections Board (MSPB), an administrative agency governing federal employment disputes. Elgin v. Dept. of Treasury

Enforcement, Enforcement, Enforcement

The latest facts and figures on the DOL, EEOC and DOJ regulatory agenda

Temporary Government Employee Is Entitled To Same Immunity From Lawsuits As Full-Time Public Workers

In a unanimous decision, the U.S. Supreme Court ruled on April 17, 2012 that a private employee working for a governmental body is entitled to the same qualified immunity as full-time public employees. Filarsky v. Delia.

Making Government a Little Less Bothersome - Here May Be an Opportunity

In a May address to the American Enterprise Institute, Cass Sunstein of Nudge fame, and also the administrative czar of the the Obama administration, announced the result of a four month study of regulations whose costs out weighed their benefits.

The Regulatory Avalanche From Washington, D.C.

The federal government has served notice that it will soon be creating an avalanche of new regulatory and enforcement actions from Washington, D.C., which will place enormous new burdens on employers. Worse, several of the new regulatory strategies will mandate that employers, in effect, demonstrate and document their compliance with employment laws and regulations to all employees, which then can lead to federal enforcement actions, private lawsuits or union organizing.

Narrow Window to Comment on Sweeping New MSHA Litigation Procedures.

The federal Mine Safety and Health Administration’s (MSHA) quest to reduce the much talked about “case backlog” at the Federal Mine Safety and Health Review Commission is taking shape. In the May 20, 2010 issue of the Federal Register, the Review Commission proposed a new rule for handling civil penalty proceedings. The proposed rule will create a new category of cases that will be heard before the Review Commission under streamlined rules of procedure called “Simplified Proceedings.”

The Employment Law Decisions of Supreme Court Nominee Elena Kegan.

President Obama's nomination of Elena Kegan to the Supreme Court is the fourth since Jottings was started in the summer of 2002. In the past I have published links to the employment and labor law decisions of the nominees.

A Closer Look At Congressional Investigations.

For the past few weeks, the news media has been fixated on the Congressional investigation and hearings into purported defects in Toyota vehicles. But why is it such a big story? In reality, Congress has held hundreds of investigative hearings during the past few years on matters involving nearly every industry. This article will review – in very basic detail – Congress's power to conduct an investigative hearing, the limitations on those powers, and the practical effects of a Congressional investigation.

A Closer Look At Congressional Investigations.

For the past few weeks, the news media has been fixated on the Congressional investigation and hearings into purported defects in Toyota vehicles. But why is it such a big story? In reality, Congress has held hundreds of investigative hearings during the past few years on matters involving nearly every industry. This article will review – in very basic detail – Congress's power to conduct an investigative hearing, the limitations on those powers, and the practical effects of a Congressional investigation.

New Compliance and Ethics Rules for Government Contractors and Subcontractors Effective December 24, 2007.

Contractors and subcontractors who enter into at least one government contract “expected to exceed” $5 million dollars with a performance period of 120 days or more are now subject to a new Federal Acquisition Regulation (FAR) clause, the Contractor Code of Business Ethics and Conduct.
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