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Beltway Buzz, August 17, 2018

SCOTUS Nominee Hearing. The Senate Judiciary Committee has set September 4, 2018, for the start of Supreme Court nominee Brett Kavanaugh’s confirmation hearings. This is less than one month before the Court’s next term kicks off on October 1, and in that time Kavanaugh supporters in the Senate will have to hold hearings, move Kavanaugh through the Judiciary Committee, and get him confirmed on the Senate floor. This will be a hectic September, especially considering that there are other matters that the Senate must attend to, like Fiscal Year 2019 government funding. And if this footage of Kavanaugh simply arriving for a meeting with Sen. Heidi Heitkamp (D-ND) is any indication, the hearings are bound to be a media circus.

DOL to Address Joint Employment? House lawmakers Bradley Byrne (R-AL) and Henry Cuellar (D-TX) sent a letter to Secretary of Labor Alexander Acosta this week asking him to engage in “rulemaking on joint employment under the FLSA to clarify employer responsibilities under wage and hour law.” Of course, Byrne and Cuellar are sponsors of the Save Local Business Act (H.R. 3441), which would tighten the joint-employer standards in both the National Labor Relations Act and the Fair Labor Standards Act. While the bill passed the House last November, it has stalled in the Senate, so it is no surprise that Byrne and Cuellar are exploring whether the regulatory process can help them accomplish their policy goals.

EMPOWER Update. The Buzz recently discussed the introduction of the EMPOWER Act (H.R. 6406), the poorly drafted piece of legislation that makes it unlawful for “an employer to unilaterally include a nondisclosure clause or a nondisparagement clause that solely benefits the employer in a separation or settlement agreement.” Besides the fact that no one knows when such a clause would solely benefit the employer (meaning litigation will be inevitable), the EMPOWER Act assumes that nondisclosure agreements (NDAs) are inherently problematic and detrimental to employees. To the contrary, a recent article in the Wall Street Journal by two plaintiffs’ attorneys makes the argument that “NDAs can play an important role in protecting victims, without allowing harassers to continue unchecked.”

OFCCP Directives. Late last week, the Office of Federal Contract Compliance Programs (OFCCP) issued two new directives intended to provide OFCCP staff and officials with guidance on how to comply with OFCCP laws and regulations. Directive 2018-03 instructs OFCCP officials to consider “recent developments in the law regarding religion-exercising organizations and individuals” when providing compliance assistance or enforcing OFCCP laws and regulations. In Directive 2018-04, OFCCP announced its plans to schedule “focused reviews” of federal contractors regarding their compliance with Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), and Section 503 of the Rehabilitation Act of 1973. Leigh M. Nason has the details here.

“Iron Stache” Is No “Iron Lady.” In case we need a reminder as to just how wacky politics can be, Wisconsin ironworker Randy Bryce, who has the nickname “Iron Stache,” will be the Democratic nominee in the congressional race to fill Paul Ryan’s seat upon his retirement. Whether Bryce wins or loses, we’re not sure that the “Iron Stache” nickname will have the longevity of, say, “The Great Emancipator,” “Old Hickory,” or even “Carlos Danger” when the history of great political nicknames is written.

Political Plumage. New York Governor Andrew Cuomo ruffled some feathers this week when he told reporters that he kept a bald eagle feather as a keepsake from a canoe trip he took years ago with his daughter. This means that the New York political scion appears to have run afoul of the federal Bald and Golden Eagle Protection Act, which prohibits the taking of bald eagles, including their parts, nests, and eggs. Violation of the law can result in a fine of up to $100,000, up to a year in jail, or both. Yikes. Of course, this bad news comes just weeks before the New York gubernatorial primary, where Cuomo looks to defend his roost in the New York State Executive Mansion (interestingly located on Eagle Street, in Albany) from left-wing challenger and actress Cynthia Nixon. Cuomo’s supporters are hoping the gaffe won’t be an albatross around his neck and that he won’t be eating crow after he predicted victory at the polls.

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About this Author

Senior Government Relations Counsel

James J. Plunkett works as a Senior Government Relations Counsel in the Governmental Affairs practice of Ogletree Deakins. 

  • J.D., Boston College, 2004

  • B.A., James Madison University, 1999

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