Joint-Employer Update. As a pre-Halloween treat to stakeholders who are preparing written comments on the National Labor Relations Board’s (NLRB) proposed joint-employer rule, on October 30, 2018, the NLRB extended by 30 days the comment due date. The extension was likely due to a recent letter from congressional Democrats who asked for an additional 60 days within which to file comments. Comments, which were originally due on November 13, 2018, are now due on December 13, 2018. Further, this week NLRB Chairman John F. Ring disputed an article in Bloomberg BNA regarding the Board’s response to Democrats’ demand for information relating to the ongoing joint-employer rulemaking. Ring also decried the invasion of politics into Board processes. While the Buzz tends to agree with Ring’s latter comment, we don’t think that politics will be separated from Board policies anytime soon.

Arbitration Nation. For those of you who may have thought that the recent Supreme Court decision in Epic Systems Corporation v. Lewis put to rest all issues relating to predispute employment arbitration, think again:

  • On October 29, 2018, the Supreme Court of the United States heard oral argument in Lamps Plus, Inc. v. Varela on whether the Federal Arbitration Act (FAA) prohibits class arbitration where an agreement is silent with regard to class proceedings. This is the second case this month that the Supreme Court has heard dealing with arbitration in the employment context.
  • On the legislative front, representatives Bobby Scott (D-VA) and Jerrold Nadler (D-NY) introduced the Restoring Justice for Workers Act, which would ban predispute arbitration agreements in the employment context. The bill also makes it unlawful for employers to retaliate against employees for refusing to arbitrate employment disputes.


That both the Supreme Court and Congress continue to weigh in on the contours of the FAA and arbitration agreements means that arbitration, in general, will likely continue to be a hot-button issue in 2019 and beyond (especially if Democrats win the House of Representatives in next week’s election).

OSHA LOTO Standard. Late last week, the Occupational Safety and Health Administration (OSHA) submitted to the Office of Information and Regulatory Affairs (OIRA) a proposed request for information (RFI) relating to a potential update to the agency’s lockout/tagout (LOTO) standard. An RFI is a very preliminary step in the rulemaking process and is a way for agencies to solicit information from the regulated community about whether a particular issue is appropriate for rulemaking. Once OIRA approves the RFI, it will be released to the public for comment. OSHA’s submission targeted an October 2018 public release of the RFI, so it should issue soon.

Business Groups Dislike Immigration “Policy by Memo.” During the previous administration, business groups often bristled when agencies made policy through subregulatory actions instead of using the Administrative Procedure Act rulemaking process. Such actions include guidance documents, enforcement memoranda, frequently asked questions (FAQs), and the like. While these subregulatory initiatives may have the practical effect of an actual rule, agencies often promulgate them without public input, and they are difficult to challenge in court. But while the current administration has generally backed away from this type of policymaking, U.S. Citizenship and Immigration Services (USCIS) continues to make policy this way. Accordingly, earlier this week Compete America—an employer coalition dedicated to reforming our nation’s high-skilled immigration system—sent USCIS a letter expressing frustration at the agency’s changes to high-skilled immigration policy through subregulatory actions. The Buzz is hopeful that the letter may have some impact on how USCIS regulates the high-skilled visa programs.

Filibuster Up My Belly With Candy. While visitors roaming the halls of the Senate office buildings probably did pretty good trick-or-treating on Halloween, the senators themselves don’t have to go to all that trouble. Since 1968, the Senate has maintained a Candy Desk in the back row on the Republican side, right near the most frequently used entrance to the chamber. The desk is “staffed” by a Republican senator (though Democrats have a newer version of their own candy desk), who usually fills it with candy from his or her home state. When Rick Santorum of Pennsylvania manned the Candy Desk, Hershey shipped roughly 100 pounds of chocolate and other candy four times each year in order to keep the desk full. The candy desk is currently the important responsibility of another Pennsylvania senator, Pat Toomey.

The Buzz will be off next week, as we will be attending Ogletree Deakins’ sold-out Corporate Labor and Employment Counsel Exclusive in Palm Springs, California. We will return on November 16 with a post-election analysis.


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