Beltway Buzz, May 18, 2018

The Buzz returns renewed and reenergized from last week’s highly successful Workplace Strategies conference in Phoenix, Arizona, where approximately 800 employer representatives gathered with Ogletree Deakins lawyers to discuss current developments and the future outlook for all aspects of labor and employment law (if you missed this year’s event, be sure to join us at the Bellagio in Las Vegas in 2019). Overheard at Workplace Strategies: “Is that beer-packing burro an employee or an independent contractor?”

Regulatory Agenda Issued. Of course, last week the U.S. Department of Labor (DOL), the National Labor Relations Board (NLRB), the U.S. Equal Employment Opportunity Commission (EEOC), and other agencies released their spring regulatory agendas, which provide a roadmap of the administration’s regulatory priorities. Harold P. Coxson does a deep dive here, but the Buzz would be remiss if we didn’t comment on a few of the highlights.

• Joint employer. One of the most interesting aspects of the agenda is that “[t]he National Labor Relations Board is considering engaging in rulemaking to establish the standard for determining joint-employer status under the National Labor Relations Act.” Buzz readers are well aware that the Board’s December 17, 2017, Hy-Brand decision reversing Browning-Ferris Industries was subsequently vacated on the grounds that one of the Board members deciding the case should have recused himself because of a novel “issue preclusion” standard. Since that time, stakeholders have been wondering if the Board would attempt to resolve the joint-employer matter via another case. Well, rulemaking is another strategy altogether, and it has not just the advantage of sidestepping another would-be recusal issue, but—in contrast to the frequent oscillation attendant with making policy via adjudication—also the potential to solidify a coherent and long-lasting standard that can provide all stakeholders with certainty going forward. The Board has not indicated when it may release a rulemaking proposal.
• Overtime update. On the wage and hour front, the pending proposal on changes to the overtime regulations is now not expected to issue until January 2019 (pushed back from October 2018). Even if such a proposal is issued in January 2019, this will be roughly 18 months from when the DOL issued its original request for information on the overtime rule. However, in the meantime, the DOL has indicated that in September of this year, it will propose amendments or clarifications to the definition of “regular rate of pay” for calculating overtime pay.
• High-Skilled Immigration. United States Citizenship and Immigration Services (USCIS) forecasted its continued plans to scrutinize high-skilled visa categories. For employers that complement their workforces with H-1B visa holders, USCIS has indicated that in January 2019, it will propose amendments to the definitions of “specialty occupation,” “employment,” and “employer-employee relationship.” Similarly, in June of this year, USCIS states that it will propose to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.
• OFCCP Jurisdiction. In 2014, the Office of Federal Contract Compliance Programs (OFCCP) announced a five-year moratorium on investigations of healthcare contractors participating in the TRICARE federal healthcare program. With this moratorium set to expire next year and because the underlying question of whether contractors participating in TRICARE and other federal healthcare programs are “subcontractors” within the scope of OFCCP’s jurisdiction remains, OFCCP will propose a rule that “would include limiting and otherwise altering the obligations of TRICARE and other healthcare providers.” Unfortunately, federal contractors and subcontractors will likely have to wait until at least April 2019—about one month prior to the expiration of the enforcement moratorium—to see a proposal.

Labor Law “Reform” Dream Bill Introduced. Late last week, Sen. Bernie Sanders (I-VT) and Rep. Mark Pocan (D-WI), along with other Democratic cosponsors, introduced the “Workplace Democracy Act,” an ambitious series of amendments designed to overhaul labor-management relations and increase union membership. Among other provisions, the bill would:

• substitute “card check” representation election “sign-ups” for secret ballot elections;
• codify the amorphous indirect control joint-employer standard established in Browning-Ferris Industries;
• eliminate right-to-work laws by repealing Section 14(b) of the National Labor Relations Act;
• require mandatory binding arbitration of first contracts;
• expand “persuader activity” reporting and disclosure requirements;
• lift prohibitions on secondary boycotts and recognitional picketing; and
• narrow independent contractor standards, which could harm sharing-economy workers and stifle innovation.

Sanders has introduced versions of the bill since at least 1994, validating the adage that in Congress, no bad idea ever really goes away. The Buzz does not expect to see this legislation advance out of either House or Senate committees in the current Congress, as this is very much a political document that we will hear about during election season. However, the bill could serve as a road map for policy changes in the future, depending on how the political winds blow, so the business community would be wise to not rest on its Yannys.

USCIS/DOJ memo. USCIS and the U.S. Department of Justice (DOJ) recently announced that the two agencies have entered into a memorandum of understanding (MOU) to “increase the ability of the agencies to share information and help identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws.” Pursuant to the MOU, the agencies will exchange data, make referrals, and participate in joint training sessions. The MOU purports to expand upon a 2010 agreement between USCIS and the DOJ relating to E-verify misuse. Melissa Manna has more here.

Betting on Gambling. On Monday, the Supreme Court of the United States struck down the Professional and Amateur Sports Protection Act as violating the 10th Amendment’s “anticommandeering” doctrine, which prevents the federal government from dictating to states what laws they can and cannot pass. Justice Samuel Alito, who wrote the majority opinion, stated that the 1992 federal law violates the 10th Amendment’s delegation of regulatory power to the states: “It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.” Not surprisingly, the American Gaming Association is quite happy with the decision. And in the category of “careful what you wish for,” the NFL responded to the decision by urging Congress to set up a massive legal framework to regulate what some experts say is a $150-billion industry. In the Buzz’s opinion, this is like handing your toddler the keys to your brand-new car: what could possibly go wrong?