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Beltway Buzz, April 20, 2018

Ring Recusal Request. On April 16, management attorney John Ring was sworn in as chair and fifth member of the National Labor Relations Board (NLRB). But before Ring even had an opportunity to learn where the coffee and bathrooms are located at 1015 Half Street, he was met with a motion to recuse himself from a pending case based on the fact that the firm where he previously worked had represented one of the parties involved. With a recusal “victory” under their belts as a result of the Hy-Brand Hijinks™, look for labor unions and their allies to play the recusal card quite often in the coming months. The Buzz predicts that this will have the effect of slowing down the Board’s policy agenda, which is the whole point, after all. 

NLRB Receives Input on “Ambush” Election Regulations. Ring’s arrival at the Board is timely, as the period in which to respond to the NLRB’s Request for Information (RFI) regarding its 2014 changes to its election procedures closed on April 18. There is no clear direction from the Board as to what—if any—changes they will make to the rules. Just about the only thing we know for sure at this point is that this is the first step in what could be a lengthy process. After the Board reviews the comments submitted in response to the RFI, if it chooses to make changes to the 2014 regulations, it will first issue a notice of proposed rulemaking, followed by a comment period. Recall, too, that in both 2011 and 2014 the Board heard oral testimony from stakeholders as part of its proposal. Stay tuned for next steps.

The CRA Is Dead. Long Live the CRA! Just when you thought the Congressional Review Act (CRA) was out, Republicans pull it back in to play. Earlier this week, the Senate passed a resolution under the CRA that rescinds the Consumer Financial Protection Bureau’s (CFPB) 2013 guidance relating to discrimination in auto lending. This maneuver is a bit afield of the labor and employment policy arena, but the Buzz thinks this is worth watching because it has regulatory implications going forward. Because this was guidance and not a full-blown regulation, CFPB Director Mick Mulvaney—certainly no shrinking violet—likely could have just rescinded it and tossed it in the wastebasket (much like Secretary of Labor Alex Acosta did with administrator’s interpretations). Accordingly, the Buzz wonders if this vote is a bit of a test, because with this vote, the Senate, for the first time ever, used the CRA to invalidate an agency guidance document and an agency action taken years ago (the CRA had been previously used only to invalidate more recent or midnight regulations). Republicans could be looking to establish the precedent that Congress has the power to revoke agency guidance documents, as well as actions that occurred years in the past. Both the House of Representatives and the White House have expressed support for this effort.

New DOL Opinion Letters. Roughly 10 months after the Department of Labor (DOL) announced that it would again be issuing opinion letters, late last week the Wage and Hour Division (WHD) issued three new opinion letters. The letters deal with compensability of travel time and rest breaks, as well as the treatment of lump-sum payments under the Consumer Credit Protection Act. Along with its new Payroll Audit Independent Determination (PAID) program, the issuance of opinion letters is an example of the current administration’s cooperative approach to Fair Labor Standards Act (FLSA) compliance. 

Tribal Sovereignty Act Dies. Earlier this week, a cloture vote on the Tribal Labor Sovereignty Act failed in the Senate, which means that the bill will not receive a vote on the Senate floor. The bill, which passed the House of Representatives in January, would exempt “any Indian tribe, or any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands,” from the definition of “employer” in the National Labor Relations Act.

Return of DACA? About 240 members of the House of Representatives are cosponsoring a resolution that proposes a vote on four immigration bills under the obscure “queen-of-the-hill” rule. The rule allows for House votes on multiple bills, and the bill that receives the most votes above the required simple majority vote threshold (218) would become the House-passed bill. The bills that might be voted on include the following:

  • Goodlatte bill (Securing America’s Future Act of 2018 (H.R. 4760)): This bill has strong enforcement measures, would make E-Verify mandatory for all employers, and would reduce legal immigration.
  • DREAM Act of 2017 (H.R. 3440): This bill provides a pathway to citizenship for all Dreamers.
  • Hurd–Aguilar bill (Uniting and Securing America Act of 2018 (H.R. 4796)): This bipartisan bill is similar to the DREAM Act, but it also provides for increased enforcement and border control measures.
  • “Ryan’s Choice”: This is a placeholder that Speaker of the House Paul Ryan (R-WI) or Republican leadership could fill with a bill of their choice.

Perhaps it’s due to the fact that the Buzz is still reeling from the results of the epic WrestleMania 34 a few weeks ago, but the whole concept certainly has a professional wrestling vibe to it: three contenders and a mystery challenger battle to determine one winner! Of course, Republican leadership is still in control of the House, and they have been traditionally squeamish about bringing immigration bills to the floor, so we will have to wait to see what happens. 

Senate Workflex. Nearly two weeks ago, Sen. Tammy Duckworth (D-IL) became the first senator to give birth while in office. Earlier this week, in a nice nod to flexible work arrangements, the Senate agreed to allow children under the age of one on the Senate floor in order to accommodate the senator. While the Buzz applauds this development, we were under the impression that people who are prone to fits, with outsized egos and no understanding of laws or policy, are already allowed on the Senate floor.

The hardest thing in the world to understand is the income tax.” For many Americans, April 17 was the deadline to file their income taxes for 2017. Of course, the requirement to pay taxes on income is a relatively recent phenomenon in the history of our country. For much of the early part of our nation’s history, the federal government generated revenue primarily through tariffs and excise taxes. In an effort to generate funds during the Civil War, however, Congress passed the Revenue Act of 1861, which contained the first-ever federal tax on income. With these war income taxes expiring in 1872, and having acquired a taste for their ability to generate revenue, in 1894, Congress passed the Wilson–Gorman Tariff, which imposed a 2 percent tax on incomes over $4,000. This provision was subsequently struck down in Pollock v. Farmers' Loan & Trust Co. as a direct tax that was not apportioned according to the population of each state, as required by Article I, Section 9, of the U.S. Constitution. Congress responded in 1909 by passing a resolution proposing the 16th Amendment. The amendment was ratified by the requisite 36 states in 1913 (thanks a lot, Delaware). Congress passed a federal income tax later that year, and we’ve been—*sigh*—paying income taxes ever since.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VIII, Number 110

About this Author

James J Plunkett Government Relations Counsel in the Washington, D.C. office of Ogletree Deakins
Senior Government Relations Counsel

James J. Plunkett works as a Senior Government Relations Counsel in the Governmental Affairs practice 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 was an associate at a national law firm...