Beltway Buzz, January 12, 2018

Some welcome hot air has finally come to D.C., and it’s not just coming from the mouths of politicians and regulators. Seriously. It’s 60 degrees today in D.C.! This time last week, it was 20 degrees. That’s quite a flip-flop for a town that is used to flip-flopping. Without further ado, here is this week’s Beltway Buzz.

“Just Shut it Down. Shut it Down Now.” No, the Buzz isn’t advocating for a government shutdown, but this is just a friendly reminder that we are seven days away from that potential occurrence. Congress will likely get to work on this next week, but negotiations to continue funding the federal government are the sorts of activities that take time away from Senate considerations of labor and employment policy matters—like confirming agency nominees. The Buzz is hopeful that, in next week’s edition, we will be able to report that this matter has been resolved, but we will have to wait and see.

Wage and Hour Activity. Though no doubt mired in laborious Administrative Procedure Act rulemaking on issues like overtime, OSHA (Occupational Safety and Health Administration) reporting, and the fiduciary rule, the Department of Labor (DOL) is still finding time to clear out the sub-regulatory underbrush that accumulated over the last several years. Sub-regulatory initiatives—which often take the form of enforcement memoranda, compliance guidance, or FAQs—fill in the regulatory and enforcement policy gaps and help to establish an agency’s position on a particular matter. The DOL’s Wage and Hour Division (WHD) took two significant steps in this area last week:

• On January 5, the WHD reinstated 17 opinion letters that it had issued in the waning hours of the Bush administration, but that the Obama administration had subsequently withdrawn. The letters address a wide variety of subject matters, including the exempt status of particular jobs, such as construction supervisors, helicopter pilots, and plumbing technicians. Alfred B. Robinson, Jr. and Steven F. Pockrass have the details.
• Also on January 5, the WHD announced that it would scrap its much-maligned six-part test for determining whether interns or students should be classified as employees under the Fair Labor Standards Act (FLSA). In its place, the WHD will now use the “primary beneficiary” test that is favored by the appellate courts, and it issued a new Fact Sheet #71 reflecting this change. James M. Paul has more.

Tax Reform and #MeToo. The Buzz previously reported on the provision in the much-discussed tax reform package that prohibits businesses from claiming as a deductible business expense amounts paid to settle sexual harassment claims under nondisclosure agreements. Of course, like almost all legislation, the devil is in the details. Alexandra L. Orsini and David S. Rosner have an excellent analysis setting forth some of the potential unintended consequences of this provision.

Administration Pulls Back on H-1B Rumors. Over the last few weeks, rumors were rampant that the administration would limit extensions of H-1B visas beyond the six-year limit (current federal law permits such extensions while green card applications are being processed). Earlier this week, United States Citizenship and Immigration Services (USCIS) addressed the rumors and confirmed that the administration is not currently planning to implement this policy change. Of course, things can change quickly in D.C., so the Buzz will continue to monitor this issue.

DACA Update. With the rapidly approaching March expiration of the Deferred Action for Childhood Arrivals (DACA) program, scores of CEOs sent a letter this week to congressional leaders urging the passage of imminent legislation to correct the matter. In addition to humanitarian concerns, the letter notes the significant disruption to workforces and business costs that would result from Congress’s failure to act. As the Buzz goes to press, there are conflicting reports as to the current status of DACA negotiations.

OSHA Reporting. Loyal readers are no doubt aware that over the last several months, the Buzz has been monitoring the status of OSHA’s injury and illness reporting regulation. But with all the delays, restarts, and twists and turns, it can sometimes be difficult to pin down exactly where we are with regard to this regulation. Fortunately, Melissa A. Bailey has taken a deeper dive into the latest Regulatory Agenda and forecast what might be in store for employers in 2018 with regard to OSHA reporting.

“The Polka King of the Midwest.” Sometimes following our own edict of avoiding political discussions is difficult. Last week, we felt compelled to mention the retirement of Senator Orrin Hatch (R-UT). This week, we cannot resist mentioning that former Cleveland mayor and representative from Ohio, Dennis Kucinich, announced that he would be running for governor of Ohio this year. Why can’t we resist? Well, the Buzz thinks that the outspoken Democrat, who served on the House Committee on Education and the Workforce, may have a message that is so universally appealing, it is almost guaranteed to secure his landslide victory. It would be a unique platform, for sure, particularly since Kucinich is vegan.