Beltway Buzz, December 20, 2019

USMCA Moves Forward. This week, Congress wrapped a bow on 2019 with some significant legislative accomplishments. For example, on December 19, 2019, the House of Representatives approved the United States–Mexico–Canada Agreement. Next stop is, of course, the Senate. But as the Buzz mentioned last week, the Senate may be preoccupied with the impeachment trial during the first few weeks of January 2020.

Porky Spending Bills Contain Workplace Measures. With gridlock being par for the course for Congress these days, “must pass” spending bills can become a convenient vehicle on which to attach languishing bills. Thus, at the 11th hour this week, Congress agreed to two legislative packages that not only fund the federal government beyond December 20, 2019, but are also chock-full of significant policy changes (such as increasing the age for tobacco use to 21 and authorizing the Export-Import Bank of the United States for another seven years). Of course, the legislation also includes changes that impact employers:

• Healthcare Taxes. The legislation permanently repeals three major healthcare taxes that were adopted as part of the Affordable Care Act and have been postponed in the intervening years. This includes permanent repeal of the taxes on so-called “Cadillac” insurance plans and medical devices, as well as the Health Insurance Tax.
• Retirement. The funding bill includes the Setting Every Community Up for Retirement Enhancement (SECURE) Act of 2019, which is intended to promote retirement savings by making it easier for employers to offer and administer retirement plans, such as by allowing employers to join “open” multiple-employer plans.
• Miner Benefits. Finally, the legislation includes the Bipartisan American Miners Act of 2019 (S. 2788), which preserves pension and health benefits for active and retired coal miners.

McFerran Departs NLRB. National Labor Relations Board (NLRB) Member Lauren McFerran’s term at the Board ended on December 16, 2019. This leaves the Board with three Republican members—Chairman John F. Ring, and Members Marvin E. Kaplan and William J. Emanuel. At this time, there is no news on whether McFerran may be renominated. It is suspected that the administration is comfortable with letting the Board operate 3–0 and that filling McFerran’s seat might not be a priority until Kaplan’s term expires in August 2020, whereupon the Board would be left without a functioning quorum.

NLRB Closes 2019 With Flurry of Activity. Traditionally, there is a flood of decisions released by the Board surrounding the expiration of a member’s term, and McFerran’s departure was no different. Just within the last week, the Board issued the following policy changes:

• Changes to Election Procedures. Late last week, the Board finalized changes to its union election procedure regulations. Thomas Davis has the scoop on what this means for employers.
• Access to Employer Email. On December 16, 2019, the Board issued Caesars Entertainment, overruling its 2014 decision in Purple Communications, which allowed employees to access employer-owned email systems for the purposes of union organizing and pursuing other Section 7 activities. The Board stated, “Purple Communications impermissibly discounted employers’ property rights in their IT resources while overstating the importance of those resources to Section 7 activity.” This ruling is consistent with recent Board decisions affirming employers’ property rights. John T. Merrell has the details.
• Confidentiality in Workplace Investigations. On December 16, 2019, the Board overruled a 2015 case that put limitations on confidentiality of workplace investigations and therefore interfered with employers’ statutory obligations to provide harassment-free workplaces.
• Union Dues Checkoff. Finally, the Board overturned another 2015 decision and returned to the precedent that had been in place since 1962 by holding that employers’ obligations to collect and remit union dues expires with the termination of the collective bargaining agreement that contains the checkoff provision. Charles E. Engeman has the details.

EEOC Rescinds Anti-Arbitration Policy. On December 17, 2019, the Equal Employment Opportunity Commission (EEOC) rescinded its “Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment.” The policy, which had been in existence since 1997, concluded that “[t]he use of unilaterally imposed agreements mandating binding arbitration of employment discrimination disputes as a condition of employment harms both the individual civil rights claimant and the public interest in eradicating discrimination.” Over the past 22 years, the policy has been the subject of frequent criticism from the business community, largely for the same reasons the EEOC offered for its rescission—that it conflicted with numerous federal courts of appeals and Supreme Court decisions on arbitration.

Bill of Rights Birthday. This week in 1791, the Bill of Rights, which contains the first 10 amendments to the U.S. Constitution, was ratified. Drafted by then-U.S. Representative James Madison, the constitutional tweaks were intended to address concerns of the anti-federalists, who sought greater protections from the federal government. Congress originally approved 12 amendments on September 25, 1789, and subsequently submitted them to the states for ratification. One of the rejected amendments, dealing with congressional compensation, was adopted over 200 years later in 1992 as the 27th Amendment. The other failed amendment established a mathematical formula for apportioning the number of seats in the House of Representatives. Falling one state short of the necessary three-fourths for ratification, the amendment is still technically pending before the states. Fortunately, Congress stepped in and set apportionment in the House via statute.

The Buzz will be on a holiday hiatus for the next two weeks and will return on January 10, 2020.