The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what's happening in Washington, D.C. could impact your business.
Tax Reform Gets Under Way; Special Interest Groups
Already Bustling. As soon as the Republican-controlled
Congress cast aside (however momentarily) its attempts to repeal
the Affordable Care Act (ACA) to focus on tax reform, K-Street
lobbyists commenced their expected trek to the Capitol.
Apprehensive that their pet tax deductions might be in danger,
representatives of special interest groups began clamoring for
lawmakers' attention. Judging from initial reports, the
Republican proposal would lower the corporate tax rate, lower the
top personal income tax rates, eliminate the alternative
minimum tax and estate tax, and—in Steven Mnuchin's
words—eliminate "lots of deductions." Though vague on
detail, a blueprint released last week seemed to
indicate that certain cherished tax deductions, such as deductions
for mortgage interest and charitable giving, might be at least
somewhat safe. Importantly for the employee benefits industry,
so are—for now—"tax breaks for
retirement plans." Everything is subject to change, and
the actual value in dollars of some of these deductions might be
diminished if, as expected, the standard deduction is doubled or
otherwise increased. In response to the intense lobbying efforts,
Republicans are already seemingly backing off from a proposal to
eliminate the deduction for state and local income taxes, which
disproportionately affect residents of states having high income
tax rates. Industry is certain to attack each and every proposed
elimination tooth and nail, and it should be interesting to see
which cuts—if any—remain at the end of the day. (Hat
tip to
Stephanie A. Smithey,
Timothy G. Verrall, and
Richard C. Libert.)
Arbitration at the Supreme Court. On Monday,
October 2, the Supreme Court of the United States kicked off its
October 2017 term by hearing oral argument on the legality of class
action waivers in employment arbitration agreements.
Ron Chapman, Jr. and
Christopher C. Murray have the play-by-play of the oral argument in the three
cases dealing with this issue that have been consolidated before
the Court: National Labor Relations Board v. Murphy Oil USA, Inc.;
Epic Systems Corp. v. Lewis; and Ernst & Young LLP v. Morris.
As Ron and Chris note, Justice Gorsuch was silent during the
argument. Because Gorsuch is still new to the Court, you may be
wondering what he thinks about arbitration. Well, according to SCOTUSblog, "Gorsuch's opinions have
interpreted the arbitration clauses in light of the overriding
presumption in favor of arbitration." We'll have to wait
for a decision from the Court to see if this pattern holds.
Finally, in an unusual development, National Labor Relations Board
(NLRB) General Counsel Richard Griffin, who argued the case for the
Board, subsequently sent a letter to the Court correcting answers he
delivered in response to Chief Justice Roberts's
"50-employee" hypothetical (regarding a hypothetical
agreement permitting collective arbitration only when at least 50
employees join the arbitration) noted in Ron and Chris's
article.
Groundhog Day for "Agency Fees." In
more Supreme Court news, late last week, the Court agreed to hear a
new challenge to so-called "fair share" or "agency
fees" that nonmember public sector workers pay to unions as a
condition of employment.
Harold P. Coxson has more, including an explanation of why this
issue transcends the public sector (spoiler alert: like everything
else, it's about the money).
Joint-Employer Bill Clears Hurdle. On October 4,
the U.S. House Committee on Education and the Workforce reported
out H.R. 3441, the Save Local Business Act, on a
party-line vote of 23–17. The Save Local Business Act will
tighten the joint-employer standards in both the National Labor Relations Act and the Fair Labor
Standards Act. The bill has 95 bipartisan cosponsors, including
three Democrats: Henry Cuellar (D-TX), Luis Correa (D-CA), and
Collin Peterson (D-MN). In addition to a whole swath of industry
associations and right-leaning groups, the Southern Christian Leadership Conference is
also supporting the bill. The next stop would be a vote on the
House floor, though whether Republican leadership will bring up the
bill is unclear.
Immigration Matters. Here are some immigration
tidbits from this week:
- On October 2, comments were due on the U.S. Department of
Labor's (DOL) proposed changes to the Labor Condition
Application. The U.S. Chamber of Commerce requested that the DOL
withdraw the proposed changes and instead propose them, if at
all, via the Administrative Procedure Act rulemaking process.
- On October 3, U.S. Citizenship and Immigration Services (USCIS)
announced that premium processing will now be
available for extensions of H-1B status, the final category of H-1B
petitions to become eligible for premium processing treatment after
a lengthy suspension. Stephen H. Smalley has the details.
- On October 4, the House Homeland Security Committee reported
out the Border Security for America Act, H.R. 3548.
Among other provisions, the bill would provide $10 billion in
funding for a border wall.
- October 5 was the deadline for current Deferred Action for
Childhood Arrivals (DACA) program recipients to apply for renewal
of their benefits. The U.S. Chamber of Commerce and SHRM, among other groups, continue to push
Congress for a quick resolution of the matter.
- Also on October 5, the Senate confirmed Lee Francis Cissna to
be USCIS director.
- Representative Lamar Smith (R-TX) has an op-ed in The Hill on his bill to require all employers to use E-Verify.
Senate Nominations Hearings. As the
Buzz previously reported, on October 4, the Senate Health,
Education, Labor and Pensions (HELP) Committee held a confirmation
hearing for Cheryl Stanton (to be the DOL's Wage and Hour
Division administrator), David Zatezalo (to be assistant secretary
of labor for mine safety and health), and Peter Robb (to be general
counsel for the National Labor Relations Board). A vote in the
committee will be the next step, and the Buzz expects that
the full Senate will vote by the end of the month to ensure that
Robb steps in immediately upon the expiration of current general
counsel Richard Griffin's term on October 31.
DOL Solicitor. Late last week, President Trump
announced his intent to nominate attorney Kate S. O'Scannlain to be solicitor for
the Department of Labor. Currently, Nicholas C. Geale is serving as both acting
solicitor and chief of staff for Secretary of Labor Acosta. A
confirmation hearing for O'Scannlain has yet to be
scheduled.
EEOC Training. Readers may recall that in 2016,
the Equal Employment Opportunity Commission (EEOC) released its
report from its Select Task Force on the Study of Harassment in
the Workplace. As a follow-up to the report, on Wednesday,
October 4, the EEOC unveiled two training programs for employers called
Leading for Respect (for supervisors) and Respect in the Workplace
(for all employees). The programs are intended to focus on
"respect, acceptable workplace conduct, and the types of
behaviors that contribute to a respectful and inclusive . . .
workplace." A list of frequently asked questions on the
training programs is available here. No word on whether the training will
instruct employers on how to inoculate their workplace civility
policies from NLRB scrutiny.
Of Mice and Congressmen. Washington D.C.'s
rodent problem might not be as bad as New York City's, but it's still pretty bad. The Capitol Hill area is
particularly infested—and we aren't just referring to the
politicians and lobbyists. Some speculate that a 10-year
restoration project of the Cannon House Office Building has led to
an influx of vermin in the three House office
buildings (Rayburn, Cannon, and Longworth). However, with
Congressional approval ratings nearing all-time lows, cynics may say that the rodents
are simply abandoning the sinking ship that is the 115th
Congress.
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