Shutdown Shame. Today is day 35 of the partial government shutdown, and the political climate in D.C. continues to crater. At least Congress canceled its previously scheduled recess in an attempt to resolve the situation—however unrealistic that may be. On January 24, 2019, the U.S. Senate held two votes to reopen the government—the first time the Senate voted on the shutdown this month—but both failed. Additionally, Democrats offered a plan that would provide $5 billion in border security measures but would not include any money for the wall. Further, Senator Mark Warner (D-VA) introduced the Stop STUPIDITY (Shutdowns Transferring Unnecessary Pain and Inflicting Damage In The Coming Years) Act, which would continue government funding at the previous year’s levels in the case of a funding lapse. Many observers have since pointed out that this law should really be named the “Stop STUPIDITCY Act,” but who cares about a missing letter when you can create a good acronym for a bill?
OSHA Finalizes Recordkeeping Rule. Earlier today, the Occupational Safety and Health Administration (OSHA) published its final changes to its 2016 injury and illness recordkeeping regulation. The final rule eliminates the requirement for establishments with 250 or more employees to electronically submit to OSHA each year information from OSHA Forms 300 and 301. However, these establishments will still be required to maintain these records on-site and will also be required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). The most recent regulatory agenda projected the issuance of this final rule for June of this year, and it is unusual for an agency to be so far in front of its predicted timeline. Media reports indicate that labor unions are not happy with the process that unfolded leading up to finalization of the rule, particularly with regard to the impact that the shutdown may have had on the Office of Information and Regulatory Affairs (OIRA). As this regulation has already been the subject of litigation, the Buzz wouldn’t be surprised if legal uncertainty continues to surround this final regulation.
Silica FAQs. Speaking of OSHA, on January 23, 2019, the workplace safety agency announced the publication of 64 frequently asked questions regarding the standard for respirable crystalline silica in general industry. The FAQs cover topics such as exposure assessments, regulated areas, methods of compliance, written exposure control plans, housekeeping, medical surveillance, communications to employees, recordkeeping, and questions that arise concerning the use of temporary workers.
“Regular Rate” Reg Advances. As a fully funded agency, the Department of Labor (DOL) has not let the shutdown slow down its regulatory agenda. On January 23, 2019, the DOL’s Wage and Hour Division sent to OIRA its proposal “to clarify, update, and define basic rate and regular rate requirements” under the Fair Labor Standards Act. Unlike the OSHA regulation described above, this proposal is behind schedule, as it was most recently scheduled to drop in December of last year. Accordingly, it is challenging to predict when this proposal will be presented to the public for comment.
Republican Senators Comment on Joint Employer. Late last week, nine Republicans on the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) submitted comments on the National Labor Relations Board’s proposed joint-employer regulation. The comments largely focus on the practical pitfalls of the Board’s 2015 Browning-Ferris Industries decision, specifically the uncertainty created by the ruling. To drive the point home, the comments quote directly from Mark G. Kisicki’s 2015 testimony before the U.S. Senate HELP Committee in which he stated, “This lack of certainty will adversely affect all businesses, and will disproportionately affect small businesses and franchisees by adding yet another layer of legal complexity and expense to their entrepreneurial efforts.” The senators’ comments urge the Board to adopt its proposed regulation, which would return the Board to a “direct and immediate” joint-employer standard. Comments are due on January 28, 2019.
Reg Czar Renominated to Bench. Earlier this week, President Trump renominated OIRA administrator Neomi J. Rao to fill Supreme Court Justice Brett Kavanaugh’s seat on the U.S. Court of Appeals for the District of Columbia Circuit. The Buzz has written previously on the significance of this nomination. If Senator Mitch McConnell (R-KY) continues to prioritize the confirmation of judges, this lengthy list of renominated judges indicates that he will have a lot on his plate in the coming months.
LEGO RBG. Supreme Court Justice Ruth Bader Ginsburg’s celebrity status continues to transcend her role on the high court. Despite her recent health scare and being mistakenly reported as dead earlier this week, the 85-year-old justice had quite a week from a pop culture standpoint. First, the biopic based on her life, On the Basis of Sex, has garnered about $18.5 million thus far at the domestic box office (while not a blockbuster, this is $18.5 million more than Beltway Buzz: The Movie will ever make). Second, the documentary RBG received an Oscar nomination for best documentary. Finally, of particular interest to the Beltway Bambinos, earlier this week it was revealed that Justice Ginsburg makes a cameo appearance in The LEGO Movie 2: The Second Part. ♫ “Everything is awesome, everything is cool when you’re RBG!” ♫
