Kennedy Steps Down. In a week of significant political developments, perhaps the most significant was Supreme Court Justice Anthony Kennedy's June 27 announcement that he is resigning effective July 31, 2018. The vacancy provides President Trump an opportunity to cement a conservative voting block in the Court for years to come and also provides Republicans with political momentum heading into the November elections. President Trump has promised to select his nominee to replace Kennedy from the 25-person list that the White House had previously made public. Senate Majority Leader Mitch McConnell (R-KY) has promised a vote on the eventual nominee in the fall, before the first day of the Court's next term in October. While there will be much theorizing about this development in the coming weeks, the Buzz will, as always, be watching for its impact on labor and employment issues (such as whether a newly-formed Court may opine on whether sexual orientation is protected under Title VII of the Civil Rights Act of 1964).

Supreme Court Prohibits Compulsory Union Fees. The Supreme Court waited until the very last day of its term (or, more accurately, 41 years) to issue a 5-4 decision holding that it is a violation of the First Amendment for states to require public-sector employees to pay fees to labor unions as a condition of their employment. Writing for the majority in Janus v. AFSCME, Justice Alito wrote, "It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely." In dissent, Justice Kagan argued that as a result of the decision, "Public employee unions will lose a secure source of financial support." The Buzz won't argue with Justice Kagan's conclusion, but finds it a curious—and revealing—point to make in a case involving an individual's First Amendment rights. Kagan also criticized the majority for using the First Amendment as a "sword" against "regulatory policy," but isn't this exactly what the First Amendment is for? We digress. C. Thomas Davis and Hera S. Arsen have the details on the Janus case here.

FLSA at 80. Eighty years ago this week, the Fair Labor Standards Act (FLSA) was enacted into law. Accordingly, Steven F. Pockrass has some great insight on the impact of the FLSA on the workplace, as well as some aspects of the statute that still present employers with challenges. Also, remember that the administration has promised to issue a proposal to "clarify, update, and define regular rate requirements" under the FLSA by September of this year, and the Buzz will be watching closely for this proposal.

EEOC on Age Discrimination. In other anniversary rules, the Age Discrimination in Employment Act (ADEA) turned 50 this month. In acknowledging this important anniversary, on June 26, Acting Chair of the Equal Employment Opportunity Commission Victoria A. Lipnic, issued a report entitled "The State of Age Discrimination and Older Workers in the U.S. 50 Years After the Age Discrimination in Employment Act (ADEA)." The report concludes that, "[t]oo many older Americans continue to face discrimination based on persistent stereotypes and outdated assumptions about age and work." The report also offers solutions to avoid age discrimination in the workplace, such as including age in diversity and inclusion programs and changing recruitment and interviewing strategies to avoid age bias. Recall that the EEOC was prophetic in issuing its 2016 report on sexual harassment in the workplace, sounding the alarm bell long before news stories broke about high-profile harassers. Hopefully workplaces heed the EEOC's advice in this arena.

Communication Breakdown. The most recent House efforts to resolve the Deferred Action for Childhood Arrivals (DACA) matter have gone over like a lead zeppelin. Late last week, the House of Representatives failed to pass the Securing America's Future Act, which among other provisions, would have made E-Verify mandatory and provided funding for a wall along the southern border. Then, after several postponements, on June 27, a "compromise" immigration bill (H.R. 6136, the Border Security and Immigration Reform Act of 2018) was also roundly rejected. Because Republicans have the numbers to pass legislation without a single Democratic vote, these votes demonstrate how contentious the immigration issue is within the party. What the future holds for DACA is anyone's guess at this point.

Choke Artist. Late last week while at a Senate Democratic lunch, Sen. Joe Manchin (D-WV) successfully performed the Heimlich maneuver on Sen. Claire McCaskill (D-MO), leaving the senator from Missouri with a cracked rib. Not bad emergency medical work from the one-time businessman from the Mountain State. Of course, this sort of mishap is not new in D.C.: President George W. Bush was almost done in by a wayward pretzel while watching a football playoff game back in 2002.

Fourth Fun. For many, the Fourth of July is a day of parades, fireworks, family cookouts, sales, and shopping days or a long getaway weekend at the beach or in the mountains. The true meaning of the Fourth of July, officially "Independence Day," is often subsumed by the frenzy of modern celebrations. So let's step back while the Buzz recounts a few little-remembered historical facts.

  • Independence Day should really be celebrated on July 2, as that is the day in 1776 that the Continental Congress actually voted for independence from Great Britain. The written Declaration of Independence, which explains the colonists' decision to separate from Great Britain, was dated July 4 (but many historians maintain that it was not actually signed until August 2).
  • Independence Day was not officially declared a federal holiday until an act of Congress in 1870 that authorized it as a holiday, without pay, for employees of the federal government and the District of Columbia. Then, on June 29, 1938, an act of Congress established the Fourth of July as a paid federal holiday for all federal employees.
  • Three of our first five presidents died on July 4: John Adams and Thomas Jefferson, both on the same day in 1826, and James Monroe in 1831.

The Buzz will be off next week but will return on July 13. Happy Fourth of July!

–Jim and Hal

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.

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