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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions