Congress Sprints to the Finish. Congress returned this week from its Thanksgiving break and is racing to the end of the first session of the 116th Congress. Lawmakers are technically only supposed to remain in town through next week, but it is likely that pressing matters—impeachment proceedings in the House of Representatives, government funding, potential activity on the United States-Mexico-Canada Agreement (USMCA) and the National Defense Authorization Act—will keep them working through the third week of the month. It will be a busy few weeks.
Board Extension. The National Labor Relations Board announced this week that it would extend the time for submitting comments to its proposed changes to regulations relating to blocking charges, voluntary recognition, and 9(a) relationships in the construction industry. Comments were due by December 10, 2019, but are now due by January 9, 2020. This is the second extension the Board has granted for comments on this proposal.
The Regs March On. Just as Congress hurries to complete its to-do list, so does the Trump administration’s regulatory apparatus. This week, some of the administration’s workplace regulatory proposals took significant steps forward in their march towards finalization. For example, this week the Office of Information and Regulatory Affairs (OIRA) cleared the Department of Labor’s Wage and Hour Division’s (WHD) regular rate, or “perks at work,” proposal, which means that it could be finalized at any moment. OIRA also began reviewing the WHD’s changes to its joint employer regulations. Additionally, on December 5, 2019, the public comment docket closed on the WHD’s fluctuating workweek proposal. Finally, comments were due by December 6, 2019, in response to the Office of Federal Contract Compliance Programs’ TRICARE proposal.
Reg Czar Hearing. Speaking of OIRA, on December 4, 2019, the Senate Homeland Security and Governmental Affairs Committee held a hearing on the nomination of Paul Ray to serve as administrator of OIRA. Ray is currently serving in the same role but in an acting capacity. If confirmed, Ray will undoubtedly have a busy year as the administration rushes to wrap a bow around its regulatory agenda ahead of the 2020 elections.
Workplace Safety Nominees Advance. On December 3, 2019, the Senate Committee on Health, Education, Labor and Pensions unanimously advanced the nominations of Amanda Wood Laihow and Cynthia L. Attwood to serve as members of the Occupational Safety and Health Review Commission (OSHRC). Laihow currently serves as chief counsel to OSHRC Chairman James J. Sullivan Jr. As for Attwood, this would be her third term on the commission. If confirmed by the full Senate, Laihow and Attwood would fill the two current vacancies of the three-member commission and restore OSHRC to a working quorum.
Important Week(s). 106 years ago this week marked a pivotal moment in criminal law jurisprudence. On December 2 and 3, 1913, oral arguments were held in Weeks v. United States, 232 U.S. 383 (1914). The Supreme Court case famously held that it is a violation of the 4th Amendment for federal officials to seize evidence without a warrant. Additionally, the Court held that evidence seized under such circumstance could not be used in federal criminal proceedings. This is the first application of what is now known as the “exclusionary rule.” Amazingly, nearly 50 years passed before the Supreme Court held in Mapp v. Ohio (1961) that the exclusionary rule applies equally to state court criminal proceedings.