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.

Nada on DACA. House Republican leadership was able to quell a quasi-rebellion within its ranks by promising votes on two immigration bills next week: the Securing America’s Future Act of 2018 (H.R. 4760) and a yet-to-be-introduced bill to be drafted by Republican leadership. As we have been discussing at the Buzz, Republicans who are frustrated with the lack of House action to resolve the Deferred Action for Childhood Arrivals (DACA) issue hoped to circumvent leadership by passing a discharge resolution to trigger a series of immigration votes on the House floor. Before this deal was struck, these legislators were just two votes shy of the 218 votes needed to trigger a discharge petition. It is unclear whether either of the bills scheduled for next week will garner enough votes to pass.

More Labor Legislation Proposed. About one month ago, the Buzz discussed Sen. Bernie Sanders’s (I-VT) labor law reform wish list legislation, the Workplace Democracy Act. Not to be outdone by their Green Mountain colleague, Senate Minority Leader Chuck Schumer (D-NY), House Democratic Leader Nancy Pelosi (D-CA), Senate Health, Education, Labor and Pensions (HELP) Committee Ranking Member Patty Murray (D-WA), and House Education and the Workforce Committee Ranking Member Bobby Scott (D-VA), introduced the Workers’ Freedom to Negotiate Act of 2018. The bill includes many of the same provisions as the Sanders bill, such as codification of the Browning-Ferris joint-employer standard but is even more sweeping. For example, the bill adds prohibitions on the enforceability of class action waivers in arbitration, codifies provisions of the “ambush” election rule, and resuscitates the Fair Pay and Safe Workplaces “blacklisting” scheme, as well as the Board’s failed notice posting regulations. Text of the legislation is here. As with the Sanders bill, while this latest effort is unlikely to gain traction, it could serve as a marker if political winds change down the road.

Joint-Employer News. The Buzz’s favorite mistake continues to make news in Washington, D.C., this week, as business groups maintain their efforts to correct the Board’s 2015 Browning-Ferris decision. First, on the regulatory front, we previously discussed National Labor Relations Board (NLRB) Chairman John Ring’s announcement that the Board would issue a notice of proposed rulemaking on the joint-employer matter “as soon as possible, but certainly by this summer.” To nudge the Board along, this week a coalition of employer groups filed a rulemaking petition with the Board suggesting regulatory language for the Board to propose. Second, on the legislative front, the recently-released U.S. House Fiscal Year 2019 Labor, Health and Human Services, and Education appropriations bill contains the following limitations on the Board’s joint-employer doctrine:

SEC. 408. None of the funds made available by this Act may be used to issue, enforce, or litigate any administrative directive, regulation, representation issue, or unfair labor practice proceeding, or any other administrative complaint, charge, claim, or proceeding based on the standard for determining whether entities are ‘‘joint employers’’ set forth by the National Labor Relations Board in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (August 27, 2015). 

While this is obviously good news for employers, the chances of this language making it into a final spending bill—which is likely to be a continuing resolution—in an election year are minimal.

Workplace Safety Update. One week from tomorrow—June 23—marks the date on which the Occupational Safety and Health Administration’s (OSHA) 2016 silica rule becomes effective for the maritime and general industries. However, OSHA announced late last week that “[d]uring the first 30 days of enforcement, OSHA will assist employers that are making good faith efforts to meet the new standard’s requirements.” This 30-day “grace period” for good behavior mirrors the enforcement posture that OSHA took with regard to application of the rule to the construction industry (in which the silica standard became effective on September 23, 2017). Further, OSHA announced that, in light of the pending effective date, and to “ensure effective implementation and uniform enforcement of the new standard, OSHA has developed interim inspection and citation guidance to be released in the coming weeks.”

The Gig Is Up. Late last week, the U.S. Bureau of Labor Statistics issued—in a font so incredibly unappealing that it almost hurts one’s eyes—its report entitled, “Contingent and Alternative Employment Arrangements Summary.” The long-awaited report measures the workforce participation of contingent workers, independent contractors, on-call workers, and other workers with alternative employment arrangements. Many labor wonks were surprised to learn that despite the apparent rise of the so-called “sharing economy,” the number of independent contractors as a percentage of the national workforce actually decreased—from 7.4 percent in 2005 (the last time the report was produced) to 6.9 percent in 2017. Perhaps one reason why the number was lower than expected is that the report does not include “individuals who found short tasks or jobs through a mobile app or website and were paid through the same app or website.” The Buzz is no statistician, but this seems like a pretty glaring omission to us. One other interesting finding in the report: “Independent contractors overwhelmingly prefer their work arrangement (79 percent) to traditional jobs. Fewer than 1 in 10 independent contractors would prefer a traditional work arrangement.”

Multiemployer Hearing. This week, the Joint Select Committee on Solvency of Multiemployer Pension Plans held a hearing entitled, “Employer Perspectives on Multiemployer Pension Plans.” In written testimony, the U.S. Chamber of Commerce warned that “employers are finding that ordinary business activities are being impacted by the potential for withdrawal liability” and that higher contribution rates are damaging to competitiveness. The Chamber offered five principles for the Joint Select Committee to follow in resolving the multiemployer pension plan crisis. It is unlikely that the Joint Select Committee will offer any actionable solutions prior to the November elections.

Congressional Baseball Game. Yesterday marked the one-year anniversary of the horrible shooting at the Republican congressional team’s baseball practice in Alexandria, VA. The incident was commemorated at last night’s Congressional Baseball Game at Nationals Park in Washington, D.C. More historical background on the congressional baseball game is here.

Civil Rights Anniversary. Speaking of anniversaries, 54 years ago this week, the U.S. Senate voted 71-29 to end a 60-day filibuster of the Civil Rights Act of 1964 (Senate rules at the time required 67 votes to end debate, as opposed to the 60 votes needed currently). Approximately one week later, the bill passed the Senate and was subsequently signed into law by President Lyndon B. Johnson on July 2, 1964. A contemporaneous account of the debate by the New York Times is archived here. Of course, the Act prohibits discrimination in employment, education, voting, public accommodations, and also established the Equal Employment Opportunity Commission.