US Capitol building

Gentlemen, You Can’t Fight in Here! This Is the War Room! On April 3, 2019, for the third time in six years, the U.S. Senate went “nuclear” and changed its rules regarding filibustering of presidential nominees. This time, the Senate voted 51–48 to cut post-cloture debate time for district court judges and non-Cabinet-level nominations from 30 hours to 2 hours. In 2013, Senator Harry Reid (D-NV) changed the rules so that district judges and Cabinet nominees could be confirmed by a simple majority vote, rather than 60 votes. In 2017, Senator Mitch McConnell (R-KY) changed the rules again, this time in order to apply this majority vote threshold to Supreme Court nominees. With this week’s actions, will the demise of the legislative filibuster soon follow?

Of course, whether or not this a good policy, it will inarguably have the effect of speeding up the queue of judicial and executive branch nominees who await a confirmation vote on the Senate floor. This includes Janet Dhillon (nominated to be a member of the Equal Employment Opportunity Commission (EEOC)), Scott Mugno (nominated to be assistant secretary of labor for the Occupational Safety and Health Administration (OSHA)), and Cheryl Stanton (nominated to be administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD)), among others

EEO-1 Update. The Buzz has discussed how a recent decision by the U.S District Court for the District of Columbia to reinstate the EEOC’s 2016 changes to its EEO-1 form (Component 2) has left employers wondering about their obligations to report wages and hours worked information to the EEOC. Well, in a filing dated April 3, 2019, the EEOC informed the court “that it is able to undertake and close the collection of 2018 EEO-1 Component 2 data by September 30, 2019.” If this deadline holds, it is quite a truncated period of time in comparison to the initial 18-month compliance window (final Component 2 changes to the EEO-1 form were approved on September 29, 2016, and employers were originally required to file for the first time by March 31, 2018). The EEOC also warned the court “that there is a serious risk that the expedited data collection process may yield poor quality data because of the limited quality control and quality assurance measures that would be implemented due to the expedited timeline.” Kiosha H. Dickey has the details.

Of course, this September 30 date isn’t set in stone—indeed, the EEOC’s submission does not order employers to submit Component 2 data by September 30. First, plaintiffs in the underlying lawsuit have until April 8 to respond to the EEOC’s submission to the court. Second, we obviously haven’t heard what the court thinks about this plan. Third, there is still no word as to whether the Office of Management and Budget and the EEOC will appeal the court’s decision to lift the stay. Finally, business groups this week urged Senate Majority Leader McConnell to restore a functioning quorum at the Commission by confirming EEOC nominee Dhillon.

Joint Employer—DOL Style. On April 1, 2019, the WHD unveiled its proposal to amend its Fair Labor Standards Act (FLSA) regulations regarding joint-employer status. The DOL is proposing to streamline its FLSA joint-employer analysis by adopting a four-part test. We have some fantastically excellent insight into the proposal here. Look for this proposal to be the subject of future congressional hearings, Freedom of Information Act (FOIA) requests from advocacy groups, and, eventually, litigation. Comments will be due 60 days after publication in the Federal Register, which will likely place the due date around the beginning of June.

More Opinion Letters. In a busy week for the WHD, it also issued three new opinion letters addressing issues arising under the FLSA. These letters can provide valuable guidance to impacted stakeholders and can also serve as a defense in litigation.

AHP Rule Nixed.  Late last week, the U.S. District Court for the District of Columbia invalidated fundamental provisions of the Employee Benefits Security Administration’s (EBSA) association health plan rule, a significant component of the administration’s healthcare policy agenda. Stephanie A. Smithey and Kristine M. Bingman have the details. In a subsequent guidance document, EBSA states that it “disagrees with the District Court’s ruling and is considering all available options . . . including the possibility of appealing the District Court’s decision and the possibility of requesting that the District Court stay its decision pending an appeal.” The guidance further states that in the meantime, “[p]articipants in AHPs affected by the District Court’s decision have a right to benefits as provided by the plan or policy,” and that “[p]lans and health insurance issuers must keep their promises in accordance with the policies and pay valid claims.”

Equality Act on the Move. On April 2, 2019, the House Committee on the Judiciary held a hearing on the Equality Act (H.R. 5), legislation that would prohibit LGBTQ discrimination in employment, housing, education, and other fundamental areas. The House Committee on Education and Labor will also hold a hearing on it next week, with an obvious focus on the education and workplace aspects of the bill. Several weeks ago, a coalition of 44 trade associations voiced its support for the workplace protection provisions of the Equality Act. The Buzz expects the House to vote on it sometime this spring.

Railway Labor Act Decertification Comments. April 1, 2019, was the deadline for submission of public comments in response to the National Mediation Board’s proposed changes to its procedures for decertifying bargaining representatives. The Buzz recently discussed how the current proposal aims “to simplify the decertification process and put decertification on an equal footing with certification.

Swamp Thing. As we mentioned last week, you never know what you might see in the U.S. Senate . . . .




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