Beltway Buzz, March 29, 2019

Regular Rate Proposal Issues. On March 29, 2019, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) published a notice of proposed rulemaking (NPRM) to clarify what forms of payments must be included (or excluded) for purposes of calculating workers’ overtime pay. According to the WHD, the clarification is necessary because the current outdated regulations discourage employers from “offering more perks to their employees as it may be unclear whether” to include those perks when calculating an employee’s regular rate of pay for overtime purposes. To help alleviate this confusion, the DOL proposes to expressly exclude certain costs—such as payments for unused paid leave—from the regular rate calculation. Comments are due on May 28, 2019—just one week after comments are due on the proposed overtime rulemaking.

PFA Advances. On March 27, 2019, the U.S. House of Representatives passed the Paycheck Fairness Act (PFA) by a vote of 242 to 187. Seven Republicans voted in favor of the bill and no Democrats voted against it. The bill now moves to the Senate, where it faces an uphill climb. However, even if the PFA dies in the Senate, its proponents will continue to try to expose alleged pay inequities in the private sector through other means, whether this is through the enactment of local “mini-PFAs” (such as those passed in California and Massachusetts), continued pressure to force the Equal Employment Opportunity Commission (EEOC) and/or the Office of Federal Contract Compliance Programs (OFCCP) to collect wage data from employers, Freedom of Information Act (FOIA) requests, shareholder proposals, enforcement/litigation, or other means.

Labor Relations Hearing. On March 26, 2019, the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, “Protecting Workers’ Right to Organize: The Need for Labor Law Reform.” Democrats on the committee will likely use this hearing as the starting point to begin debating the Workplace Democracy Act or the Workers’ Freedom to Negotiate Act. Buckle up.

Retirement News. On March 26, 2019, the U.S. Senate Committee on Finance approved the nomination of Gordon Hartogensis, to direct the Pension Benefit Guaranty Corporation (PBGC). (Hartogensis would replace Thomas Reeder who is still serving as director of the PBGC.) Though the committee approved Hartogensis with a near unanimous vote (25-2), he will likely still get bottlenecked on the Senate floor (which is what happened to him last year). But stranger things have happened, and the bipartisan committee vote is certainly a positive factor for his confirmation prospects. If nothing else, the vote demonstrates that unlike some of the Buzz’s other favorite issues, there is an element of bipartisanship when it comes to retirement matters.

NLRB GC Memo. On March 26, 2019, National Labor Relations Board (NLRB) General Counsel Peter Robb issued a follow-up memo to his October 2018 memo on unions’ duty of fair representation (DFR). This week’s memo clarifies that “Regions need not look behind a union’s assertion of a reasonable decision not to pursue grievances unless there is evidence that those decisions were made in bad faith or involved gross negligence, or where there could be no reasonable basis for the union’s decision.”

Witching Auer. On March 27, 2019, administrative law geeks undoubtedly donned their Chevron-patterned sweaters in anticipation of oral argument at the Supreme Court of the United States in Kisor v. Wilkie. The question for the Court in this case is whether it should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation. A final decision—maybe sometime in June?—could obviously have a significant impact on how labor-related agencies, such as the Occupational Safety and Health Administration (OSHA), make and enforce their regulations.

OFCCP Update. OFCCP continued to churn out newsworthy policy developments this week:

• First, did your company make the list? Scott Kelly and Leigh M. Nason have the scoop on OFCCP’s newly published list of contractors and subcontractors that could be on the pointy end of a compliance evaluation in Fiscal Year (FY) 2019.
• Second, on March 27, 2019, OFCCP announced the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) hiring benchmark for 2019. The Buzz abhors spoiler alerts, so you’ll just have to consult Scott Kelly and Christopher J. Near if you want to know the details.

What Hoth Senator Lee Wrought? You never know what you might see on the Senate floor these days . . .

What’s in a Name? On March 26, 2019, the Supreme Court of the United States heard oral argument in two cases, Lamone v. Benisek and Rucho v. Common Cause, which concern allegedly gerrymandered election districts in Maryland and North Carolina, respectively. While gerrymandering is a very complicated subject, the pronunciation of the actual word shouldn’t be much of a problem, should it? Well, if you’re pronouncing it with a soft “g” (like “Jerry”), you’re doing it wrong. The word gerrymander is derived from Massachusetts Governor (and James Madison’s Vice President) Elbridge Gerry. In 1812, Gerry approved a redistricting plan that created an election district that looked like a salamander, or as Gerry’s political opponents called it, a “gerry-mander.” Thing is, Gerry’s name is pronounced with a hard “g,” like “Gary.” If you don’t believe us, you can ask Chief Justice John Roberts.