He Said, They Said. Over a Wednesday night dinner consisting of the unusual combination of Chinese food and chocolate pie, President Trump and Democratic congressional leaders Charles Schumer (D-NY) and Nancy Pelosi (D-CA) apparently arrived at a tentative resolution of the Deferred Action for Childhood Arrivals (DACA) program issue we discussed last week. (While chocolate pie is undoubtedly delicious, the Buzz is of the opinion that something like a shaved ice dessert would have been more appropriately paired with Chinese food.) But someone’s fortune cookie must have read, “You will have conflicting accounts of what transpired this evening,” because yesterday, President Trump refuted Schumer and Pelosi’s joint claim that an agreement had been reached. Of course, even if the Schumer/Pelosi account is accurate, the devil is always in the details, and those details will need to be sorted out by Congress. Regardless, the debate around DACA will likely continue to bleed into—and influence—other major policy issues that are important to the business community, such as nominations to political posts, tax reform, and government funding. This is just getting started.
Two additional DACA-related items:
Late last week, Representative Lamar Smith (R-TX) reintroduced the Legal Workforce Act (H.R. 3711), which would make E-Verify mandatory for all employers. The Society for Human Resource Management, which supports the bill, has the details. Along with the Dream Act, this could be a bill to keep an eye on as the DACA horse-trading begins apace.
Janet Napolitano, current president of the University of California and the former Secretary of Homeland Security who signed the 2012 DACA directive, filed a lawsuit on behalf of herself and the Regents of the University of California, challenging the administration’s decision to rescind DACA benefits. Among other claims, the complaint alleges that the administration “offered no reasoned basis for their cancellation of DACA,” and therefore violated the Administrative Procedure Act. Napolitano explains more about the lawsuit here.
Senate Healthcare Scramble Continues. As if hurricane relief, budget reconciliation, extension of the debt ceiling, and tax-reform were not enough, efforts to repeal, replace, or modify the Affordable Care Act (ACA) continue to hang on for dear life. This administration is just not ready to give up on repeal-and-replace, and the Senate parliamentarian has ruled that the opportunity to win this bloody battle with a 51-vote majority expires at the end of September. This leaves the Senate with only days in which to act. Feeling up for the challenge, Senators Bill Cassidy (R-LA), Lindsey Graham (R-SC), Dean Heller (R-NV), and Ron Johnson (R-WI) introduced legislation that would repeal much of Obamacare and establish block grants to individual states in an effort to more evenly distribute state funding. Given past opposition to Senate repeal-and-replace efforts and recent statements by key senators, its chances of success are considered to be very slim. Meanwhile, senators Lamar Alexander (R-TN) and Patty Murray (D-WA) have already begun holding bipartisan hearings on proposed legislation that would keep much of Obamacare in place but shore up the markets in order to help avert a disastrous pullout by insurance companies. For the icing on the cake, on Wednesday, August 13, Senator Bernie Sanders (I-VT) formally introduced his proposal, known as the “Medicare for All Act of 2017,” to expand federal Medicare into a single payer universal health insurance program. Given the Republican control of the White House and both chambers of Congress, this proposal is considered dead on arrival. Obviously, the blistering issue of health care refuses to cool down anytime soon, so bewildered pundits and observers will have to keep on their toes for at least a while longer. (Hat tip to Stephanie A. Smithey and Timothy G. Verrall.)
Joint-Employer Hearing. As the Buzz predicted, the joint-employer issue continues to heat up in Washington, D.C. On Wednesday, the House Subcommittee on Workforce Protections and the Subcommittee on Health, Employment, Labor, and Pensions held a joint hearing (rather appropriate don’t you think?) on H.R. 3441, the Save Local Business Act. The bill would codify the direct and immediate standard for joint-employer liability that existed for roughly 30 years prior to the NLRB’s 2015 decision in Browning-Ferris Industries. The bill would also tighten the joint-employer standard set forth in the Fair Labor Standards Act. Grassroots and bipartisan support for the bill continue to grow. The next stop would be a mark-up of the bill, followed by consideration by the House Committee on Education and the Workforce.
Overtime. Stakeholders have a little over one week to submit their comments in response to the Department of Labor’s request for information on overtime. Thus far, nearly 150,000 comments have been filed. The Buzz expects this number to increase dramatically as we get closer to the September 25 deadline. Approximately 300,000 comments were filed in 2015 leading up to the 2016 final rule.
EEOC Nominations Hearing. Next Tuesday, September 19, 2017, the Senate Committee on Health, Education, Labor and Pensions will hold a confirmation hearing to hear testimony from Janet Dhillon and Daniel Gade to serve as members of the Equal Employment Opportunity Commission. Dhillon would be the new chair of the Commission if confirmed. Watch for a fair amount of inquiry surrounding the recent postponement of the Commission’s compensation collection requirements of the EEO-1 form, the Commission’s 2016 workplace wellness regulations, and maybe even its 2012 enforcement guidance on the use of criminal background information in employment decisions.
Congressional Harmony. Our elected officials are quite a talented bunch. Take Senator Tim Kaine (D-VA), for example: he is a former candidate for vice president, an attorney, an aspiring comedian, and a harmonica player. His colleague, Senator Lamar Alexander (R-TN), who is also an attorney, was the governor of Tennessee, was president of the University of Tennessee, and is also an accomplished piano player. So what are two musically-inclined senators to do to pass the time during those long, drawn out political debates on Capitol Hill? Why, start a band of course! Kaine and Alexander will team up as “The Amateurs” to kick off the Bristol Rhythm and Roots Reunion festival this afternoon (you have your tickets, right?). Check out one of their jam sessions here. Moreover, given the bipartisan nature of its opening act, it is perhaps fitting that the music festival will take place in Bristol—a city literally divided by the Virginia/Tennessee border. Who says members of opposing political parties in Congress can’t sing off the same song sheet?
Jim Plunkett is a Senior Government Relations Counsel in the Washington, D.C. office of Ogletree Deakins. Jim was previously the Director for Labor Law Policy at the U.S. Chamber of Commerce where he focused on legislation, regulations, and policy decisions that impact the workplace. This included activity concerning the National Labor Relations Board, the Department of Labor, the Equal Employment Opportunity Commission, as well as international labor issues. Prior to joining the Chamber, Jim...