Beltway Buzz, January 18, 2019

“Snurlough.” Today is day 28 of the partial government shutdown. A bigger-than-expected snowstorm that hit the D.C. region this past weekend led to a Monday in which the federal government was both closed and (partially) shut down—a “Snurlough.” As the Buzz has reported in the last few weeks, there is no end in sight for the longest government shutdown in history. Indeed, earlier this week, an effort to reopen the government pursuant to a fast-track legislative process in the U.S. House of Representatives failed to garner the necessary votes.

OT Proposal on Schedule? The Department of Labor (DOL) sent its long-awaited proposed changes to its Section 541 regulations to the Office of Information and Regulatory Affairs (OIRA). Could this mean that the DOL is actually on track to issue the proposal in March 2019, as forecast in the most recent regulatory agenda? Possibly. Of course, at least some OIRA staffers are likely furloughed, which could impact the timing of the review. It is important to remember that we are still talking about a proposed regulation—not a final regulation—so the overtime rulemaking still has a long way to go. Alfred B. Robinson, Jr. has the details.

H-1B Preregistration Rule Advances. Late last week, and just days after the public comment period closed, U.S. Citizenship and Immigration Services sent its H-1B preregistration rule to OIRA. Unlike the overtime proposal described above, in this case, OIRA review is the last stop before the rule is finalized. The speed at which the regulation has gone from proposal to arriving at OIRA is perhaps indicative of the agency’s effort to meet Director L. Francis Cissna’s goal of having this done in advance of the upcoming H-1B cap season.

Nominations Restart. When the U.S. Senate adjourned on January 3, 2019, to end the 115^th Congress, all pending nominations expired. Consequently, on January 16, 2019, President Trump renominated dozens of individuals to vacant agency posts. Included are William I. Althen (to be a member of the Federal Mine Safety and Health Review Commission), Janet Dhillon (to be a member of the Equal Employment Opportunity Commission), Scott A. Mugno (to be assistant secretary of labor for the Occupational Safety and Health Administration), and Cheryl Stanton (to be administrator of the Wage and Hour Division). Notably absent from the list is former National Labor Relations Board (NLRB) member Mark Pearce, who had been renominated in 2018 despite opposition from the business community. For Dhillon, Mugno, and Stanton, this is the second time that they have had to be renominated. The Buzz hopes that they will not have to be renominated for a third time.

Truckin’, Up to Buffalo. Earlier this week, in a case called New Prime Inc. v. Oliveira, the Supreme Court of the United States ruled that an interstate truck driver who is an independent contractor could not be required to arbitrate his claim for unpaid wages. The case marks a departure for the Court, which over a series of cases and years has tended to rule in favor of arbitration. Alexander M. Chemers and Robert R. Roginson have the details.

Third Time’s a Charm? Late last week, the NLRB extended its deadline for submission of comments in response to its proposed joint-employer rule. This is the third time that the Board has extended the deadline. When originally proposed on September 14, 2018, public comments were due on November 13, 2018. Now, long removed from those halcyon days of the fall of 2018, comments will be due on January 28, 2019. Further, NLRB Chairman John Ring has sent a “thanks, but no thanks” response to the recent request by House Democrats to withdraw the proposal.

Minimum Wage Bill Introduced. As predicted, House Democrats are out of the gate quickly with their effort to increase the federal minimum wage. On January 16, 2019, Democrats introduced the Raise the Wage Act, which would gradually increase the federal minimum wage over a five-year period to $15 per hour. After that, the minimum wage would be increased by the annual percentage increase, if any, in the median hourly wage of all employees as determined by the Bureau of Labor Statistics. The bill would also phase out the separate minimum wage for tipped employees. As for the business response, the U.S. Chamber of Commerce has stated that it might be willing to engage in a discussion about raising the minimum wage but that $15 is too much.

So Long, SOTU? If there is a silver lining to this government shutdown mess, it’s that the country may be spared from the hackneyed bloviating that is the State of the Union Address (“I didn’t get a harrumph outta that guy!”). Unfortunately, this yearly exercise—and we do mean exercise—is required by Article II, Section 3 of the U.S. Constitution (sort of). However, all the Constitution requires is that the president “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” So clearly a primetime, nationally televised address that interrupts the Buzz’s viewing of “The Bachelor” is not required. Instead, a written report or an email to Congress about the state of the union would pass constitutional muster. Or, better yet, just tweet it!