Beltway Buzz, September 29, 2017

Rep. Steve Scalise’s (R-LA) triumphant return to Congress on Thursday capped another busy week in Washington, D.C.:

Graham-Cassidy Crashes, but Some in GOP Still Looking Down the Road. On Tuesday, September 26, 2017, the Senate GOP acknowledged defeat in its latest effort to dismantle the Affordable Care Act (ACA). The move had been gloomily anticipated since Monday, when Senator Susan Collins (R-ME) announced she would vote “no” on the measure, joining senators Rand Paul (R-KY) and John McCain (R-AZ) to break rank with the Republican majority. This latest in a series of embarrassing defeats for the Trump administration and the GOP-controlled Congress comes only days before the expiration of the September 30 deadline to approve it on a majority vote basis. Although now might seem like a good time to restart the bipartisan Alexander-Murray efforts, animosity among members is particularly robust, and the idea of shoring up Obamacare is less than popular with Republicans. Plus, there are already rumblings about the next ACA repeal effort, which could possibly occur next year following tax reform and which might even be tacked onto a future budget reconciliation proposal. In the meantime, insurers find themselves in “another fine mess,” not yet having been given any assurances from the administration that cost-sharing subsidies will continue beyond September. Because Wednesday, September 27 was the deadline for insurers to sign contracts with the federal government to sell health plans on the 2018 ACA marketplaces, insurance rates are expected to spike significantly. (Hat tip to Stephanie A. Smithey and Timothy G. Verrall.)

Up Next: Tax Reform. With health care set aside for now, we expect Congress to pivot to tax reform. That debate has begun in earnest here in D.C. and will be an overwhelming topic of conversation in the weeks and months ahead. Covering all the gruesome tax-related details may be beyond the scope of the Buzz, but we will be sure to chime in when it might impact labor and employment policy issues, such as whether tax treatment of retirement savings could be on the table. For those who are interested, Republicans recently have released the full tax reform framework as well as a one-page overview. As for the Democrats, they have urged Republicans to move any tax reform legislation through regular order, as opposed to the reconciliation process.

A New Day at the Board. On Monday, Republican management-side lawyer William Emanuel was finally confirmed on a 49-47 Senate vote to fill the last remaining vacant seat on the National Labor Relations Board (NLRB). The Buzz expects that for lonely and beleaguered Board Chair Philip Miscimarra, it must seem like the cavalry has finally arrived to save him from years of writing dissenting opinions (but Frank Birchfield warns that changes may be slow-developing). Readers will recall that Republican Marvin Kaplan recently joined Miscimarra on the Board. However, in a bit of a surprise, Miscimarra dissented when Kaplan, in one of his first decisions since becoming Board Member, sided with Democrat Mark Pearce in a 2-1 decision refusing to grant an employer’s requested extension of a representation election date. There were definitely some interesting circumstances in that case, though, and the Buzz still thinks that Kaplan will make a great Board Member.

In other Board news, a prominent union law firm filed a motion with the Board this week urging that Emanuel be recused from participating in any cases relating to the D.R. Horton decision on class action waivers in arbitration agreements because Emanuel and his law firm were involved in several cases that challenged the D.R. Horton standard. Though stranger things have happened, the Buzz is skeptical of this effort: if that were the standard for recusal, no practicing lawyer—management or union—could ever serve on the Board.

Overtime-RFI Closes. On Monday, September 25, the comment period closed for the Wage and Hour Division’s Request for Information (RFI) regarding the Fair Labor Standards Act’s (FLSA) overtime regulations. Over 160,000 comments were filed. Just to give you all a sense of some stakeholders’ viewpoints, among those groups filing comments were SHRM and AFL-CIO. Remember: this is just the close of the comment period for the RFI. Presumably, the U.S. Department of Labor will use this information to prepare a Notice of Proposed Rulemaking (NPRM), which will then have its own comment period. Then a final rule will be issued, likely followed by litigation. In other words, this is just the first step in the long process that could result in the promulgation of a new overtime rule.

Wellness Programs. The Buzz recently reported on the U.S. District Court for the District of Columbia’s order to the Equal Employment Opportunity Commission (EEOC) to reconsider its 2016 wellness rules while keeping them in place in order to avoid “widespread disruption and confusion.” In accordance with the judge’s order, earlier this week the EEOC filed a status report notifying the court of the process it intends to pursue to review its wellness rules. The EEOC stated that its present intention is to propose an NPRM by August of 2018 and a final rule by October of 2019 (with a probable effective date of early 2021).

Nominations News. On Thursday, the Senate Health, Education, Labor and Pensions (HELP) Committee was expected to vote on the nominations of Patrick Pizzella for Deputy Secretary of Labor and on Daniel Gade and Janet Dhillon for the EEOC. The committee abruptly postponed these votes and has not rescheduled them. A little further behind in the process are Cheryl Stanton’s nomination for Wage and Hour Division Administrator, Peter Robb’s nomination for NLRB General Counsel, and David Zatezalo’s nomination for Assistant Secretary of Labor for Mine Safety and Health—all of whom have their initial confirmation hearings scheduled for October 4.

Immigration News. Immigration always seems to be a relevant issue these days, and this week was no exception. First, on Sunday, September 24, the administration issued new travel restrictions on foreign nationals from eight countries. Chad Li and Lowell Sachs have the details. Second, on Monday, senators Thom Tillis (R-NC), James Lankford (R-OK), and Orrin Hatch (R-UT) introduced the “Solution for Undocumented Children through Careers Employment Education and Defending our nation (SUCCEED) Act,” which is their proposal for filling the hole created by the elimination of DACA . Proponents of the SUCCEED Act argue that their bill—compared to the DREAM Act—has more rigorous requirements for children to obtain legal status and has stricter enforcement provisions. A one-pager is here. Look for the DACA discussion to continue to play a role throughout the fall, particularly as we get closer to the December 8 deadline for funding the government.

“Can You Please Use ‘Gridlock’ in a Sentence?” Members of Congress lost to a team of reporters earlier this week in a spelling bee to raise money for the National Press Club Journalism Institute. The traditional battle of the brains was reinstituted just a few years ago after taking a 100-year hiatus. The congressional team featured joint-employer critic and chair of the House Committee on Education and the Workforce Virginia Foxx (R-NC) and the Buzz’s congressman, Donald S. Beyer, Jr. (D-VA), who has his own unique spelling bee background and also undoubtedly knows how to spell “powertrain warranty.”