United States: Kavanaugh Update. (Beltway Buzz - September 21, 2018)

Last Updated: September 24 2018
Article by James J. Plunkett and Harold P. Coxson

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.

Kavanaugh Update. The Buzz predicted that the confirmation hearings of Brett Kavanaugh would be all-consuming, but even we underestimated how contested his nomination would become. Regardless of the outcome, the political effects of this ordeal will reverberate for years to come. It may affect not just future Supreme Court nomination battles, but legislative efforts as well, not to mention political campaigns and elections. Moreover, the Buzz wonders if this is a watershed event that will further raise the stakes at the Supreme Court, making the Court itself more and more politicized. For example, in the future, will a party in power be tempted to "pack the court" with justices in order to flip its political balance? We hope not, but our outlook is grim.

Congressional Calendar. By the end of next week, before government funding runs out on September 30, 2018, federal lawmakers are expected to pass (and President Trump is expected to sign) a series of appropriation packages as well as a continuing resolution in order to avoid a government shutdown. Between the Kavanaugh nomination and tying up loose ends on this government funding package, next week will probably be one of the busiest Congress is likely to see from the standpoint of activity. Then after our representatives hightail it out of town, it is likely that we won't see them again in D.C. until the post-election "lame duck" session of Congress. By the way, if you're as sick of the political television ads as we are, there are only 46 days left until Election Day.

NLRB Joint-Employer Proposal. Here are a few updates on the National Labor Relations Board's (NLRB) proposal to codify in its regulations a "direct and immediate" standard for joint-employer status:

  • Check out Mark G. Kisicki's extremely helpful FAQs on the issue.
  • The Coalition to Save Local Business has set up an easy-to-use portal for those who wish to submit comments to the NLRB.

NLRB Recusal Redux. Democratic efforts to preserve the policies of the Obama-era NLRB continued apace this week. Five Democratic senators (three of whom—Sen. Elizabeth Warren (D-MA), Sen. Cory Booker (D-NJ), and Sen. Kirsten Gillibrand (D-NY)—are considered frontrunners for their party's presidential nomination in 2020) sent a letter to NLRB Chairman John Ring demanding that member William Emanuel be recused from the Caesars Entertainment Corporation case—the pending matter that is reconsidering the holding in Purple Communications allowing employee use of company email for organizing purposes. The letter argues that Emanuel must recuse himself simply because his former law firm represents a party in Purple Communications, even though the firm has no involvement in Caesars Entertainment Corporation. If this is the standard for recusal, it's likely that no labor expert from management or union ranks will be able to serve effectively on the Board.

OFCCP Directives. On September 19, 2018, the Office of Federal Contract Compliance Programs (OFCCP) issued two new directives that offer the regulated community more transparency and compliance assistance. Directive 2018-08 sets forth a compliance road map for all OFCCP officials to follow when investigating a contractor, including the establishment of appropriate compliance timelines and due dates, as well as instructions on collaborative and effective conciliation tactics. In addition, Directive 2018-09 establishes an ombudsman program through which stakeholders "can share their concerns with OFCCP about a particular open matter or provide general feedback and recommendations to improve the administration of the agency." T. Scott Kelly has the details here.

OIG's OSHA Report. The Department of Labor's (DOL) Office of Inspector General (OIG) issued a report this week on the effectiveness of the Occupational Safety and Health Administration's (OSHA) 2015 changes to its fatality and severe injury reporting program. One doesn't have to read much further than the title of the report to discover its conclusion: "OSHA Needs to Improve the Guidance for Its Fatality and Severe Injury Reporting Program to Better Protect Workers." The OIG recommends that OSHA improve training of its inspectors on how to detect and prevent underreporting and to consistently issue citations for late reporting.

Happy Birthday, Constitution. This past Monday was Constitution Day, the not-so-subtly-named holiday that commemorates the date back in 1787 on which the delegates to the Constitutional Convention in Philadelphia put their John Hancocks on the Constitution (though John Hancock himself was not there). Both the date (September 17) and the holiday have a long history—starting in the late 1930s as I am an American Day, which evolved into Citizenship Day in the early 1940s after an act of Congress. Subsequently, as part of a 2004 legislative spending deal, Citizenship Day became Constitution Day and Citizenship Day. That 2004 law also states:

Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution.

While learning about the constitution is well and good, nothing expresses the constitutional cornerstones of liberty and freedom more than the federal government mandating the daily lesson plans for local schools on a specific day.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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