Our Insights


Beltway Buzz, March 9, 2018

Author: James J. Plunkett (Washington DC)

Published Date: March 9, 2018

DACA Deadline Day. To the surprise of almost no one, March 5 has come and gone, and Congress did not reach a deal on the Deferred Action for Childhood Arrivals (DACA) issue. This Congress has enough trouble agreeing on anything, so with the deadline effectively mooted by a federal court injunction that preserves the program, the failure to produce a legislative solution was a fait accompli. Moreover, it appears that both chambers have moved on from DACA, as the issue was not an agenda item in either the Senate or House this week (though Sen. Jeff Flake (R-AZ) tried unsuccessfully to garner support for his “three-for-three” bill—a three-year extension of the DACA program in exchange for three years of funding for border security. What ultimately happens with the DACA issue and how it may impact other areas of immigration policy remain to be seen.

Joint-Employer Developments. The fallout continued this week from the National Labor Relations Board’s (NLRB) recent surprising return to the flawed and impracticable joint-employer standard set forth in Browning-Ferris Industries. The Wall Street Journal smells something fishy, referring to the hyper-political inspector general report that set this situation in motion as an inside job inappropriately orchestrated by senators Patty Murray (D-WA) and Elizabeth Warren (D-MA). Speaking for the administration, Office of Management and Budget (OMB) Director Mick Mulvaney criticized the substance of the Browning-Ferris standard, saying that it could “end the franchising business as we know it.” But perhaps those who are hoping to shut down the Board may soon regret poking the bear: the current turmoil has reenergized business groups’ push for a legislative fix to the joint-employer problem, and a policy rider is said to be in the mix for potential inclusion in an omnibus funding package slated for the end of the month.

Ring Vote Delayed. NLRB nominee John Ring’s path to Senate confirmation took a detour this week. The Senate Health, Education, Labor and Pensions (HELP) Committee was supposed to vote on Ring’s nomination on March 7, thereby advancing him to the Senate floor, but this vote was postponed twice. The Senate HELP Committee vote on Ring’s nomination is now scheduled for the evening of March 12.

Acosta Speaks. Secretary of Labor Alex Acosta testified on March 6 at a House Appropriations subcommittee hearing on the U.S. Department of Labor’s (DOL) FY2019 budget proposal (of course, a final funding bill for FY2018 hasn’t even passed, but this is Washington, D.C., after all). Such hearings aren’t usually must-see TV, but Secretary Acosta revealed a few interesting nuggets that should be of some interest to employment policy watchers:

  • Acosta announced new efforts to collect unpaid federal fines levied against mine operators. The Mine Safety and Health Administration’s (MSHA) Assistant Secretary David Zatezalo followed up with more details. Lauren M. Marino has more here.
  • Regarding the Wage and Hour Division’s proposed rule related to tip-pooling, Acosta suggested that he would be open to legislation that would prohibit employers from keeping any part of a worker’s tips.
  • Acosta announced a new nationwide pilot program called the Payroll Audit Independent Determination (PAID) program. Alfred B. Robinson, Jr. has the details on the program that is supposed to encourage employer self-audits in order to quickly get unpaid back wages back into the hands of workers. At least on its face, PAID promises to encourage the type of cooperative relationship between the DOL and the private sector that employers have been hoping for.

AHP Comment Period Closes. March 6 marked the close of the public comment period for the DOL’s proposed rule related to association health plans (AHPs). Back in January, the DOL’s Employee Benefits Security Administration published a proposed rule intended to increase the availability of AHPs by expanding the definition of “employer” to make it easier for smaller employers to band together to sponsor health insurance plans for their employees. Among those submitting comments were Rep. Virginia Foxx (R-NC), chairwoman of the House Committee on Education and the Workforce, and Rep. Tim Walberg (R-MI), chairman of the House Subcommittee on Health, Employment, Labor, and Pensions, who urged the DOL to adopt provisions of its Small Business Health Fairness Act of 2017 (H.R. 1101).

Beryllium Enforcement Delayed. Late last week, the Occupational Safety and Health Administration (OSHA) announced that it will delay the enforcement of its January 2017 rule relating to occupational exposure to beryllium until May 11, 2018. Enforcement of the general industry standard had been scheduled to commence on March 12, 2018, and the 60-day delay is intended to provide for additional time for OSHA to conclude settlement discussions with parties who filed legal challenges to the rule. Enforcement of the permissible exposure limit and short-term exposure limit in the construction and shipyard standards will be similarly delayed until May 11, 2018, while the remaining provisions of the construction and shipyard beryllium standards will not be enforced without additional notice.

The First Lady of Labor. This week in 1933, Frances Perkins became the Secretary of Labor, and the first woman to serve in the U.S. Cabinet. Perkins served as Secretary of Labor for 12 years, longer than any other person to hold the position (Martin Durkin has the record for shortest tenure: less than eight months under President Eisenhower). Among her accomplishments, Perkins drafted the Social Security Act of 1935 (providing for unemployment insurance) and was the first Secretary of Labor to administer the Fair Labor Standards Act of 1938. But while the DOL’s office building is named in Perkins’s honor, anybody who has been in the antiquated structure might be under the mistaken impression that this commemoration is intended as an insult rather than a compliment.

James J. Plunkett  (Washington DC)

James J. Plunkett
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...