Beltway Buzz, February 28, 2020
NLRB Issues Joint-Employer Rule.
On February 26, 2020, the National Labor Relations Board (NLRB) finalized its joint-employer rule. The rule returns to a common sense joint-employer standard that existed for decades prior to the Board’s decision in Browning-Ferris Industries. Pursuant to the rule, “an entity may be considered a joint employer of a separate employer’s employees only if the two share or codetermine the employees’ essential terms and conditions of employment, which are exclusively defined as wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.” The rule is scheduled to go into effect on April 27, 2020.
States Challenge DOL Joint-Employer Reg.
Speaking of joint employers, on February 26, 2020, 17 states and the District of Columbia filed a legal challenge to the U.S. Department of Labor’s (DOL) recently finalized Fair Labor Standards Act (FLSA) joint-employer regulation. The challenge claims that the rule is arbitrary and capricious, and impermissibly narrows the scope of the FLSA’s coverage. The Buzz anticipates that the plaintiffs will ask the court to rule before the regulation goes into effect on March 16, 2020.
Public Charge Takes Effect.
The legal cloud surrounding the Trump administration’s so-called “public charge rule” dissipated late last week, as the Supreme Court of the United States lifted the last remaining injunction against the regulation (though legal challenges to the rule are still pending). This allowed the rule to go into effect on February 24, 2020. The rule grants immigration officials greater discretion in determining when an individual applying for a nonimmigrant visa or adjustment of status (to obtain a green card) is likely to become a public charge, a ground for inadmissibility into the United States.
One Stop Guidance Shop.
February 28, 2020, was the deadline for federal agencies to relocate their various guidance documents on a searchable web portal. These materials include interpretive memoranda, frequently asked questions (FAQs), enforcement manuals, and the like. The subregulatory housekeeping was done pursuant to executive orders President Donald Trump issued in October 2019. How did the agencies know exactly how to implement the executive orders? Why, they had guidance, of course.
Contractor School. Late last week, the Office of Federal Contract Compliance Programs launched the Contractor Compliance Institute, an on-demand learning system designed to assist federal contractors in understanding their equal employment opportunity and affirmative action requirements. The most popular offering so far? “How to Quit the Government Contracting Business.”
Judicial Review Turns 217 Years Old.
On March 2, 1801, businessman William Marbury received a commission from President John Adams to be a justice of the peace, and you would have thought it was the best day of his life. But when Thomas Jefferson was sworn as president just two days later, he instructed his secretary of state, James Madison, to withhold any undelivered commissions, so Marbury never received his official appointment. That started the legal kerfuffle that resulted in the landmark Supreme Court case Marbury v. Madison, which was decided this week back in 1803. After Marbury filed a writ of mandamus with the Supreme Court of the United States seeking to force Madison to hand over the commission, the Court ruled that although Marbury was entitled to the commission, he was not entitled to any legal remedy. The Court reasoned that the law that granted the Court original jurisdiction over the case (under the Judiciary Act of 1789) also granted it more power than was provided for in the Constitution; therefore, the law was unconstitutional. The case was the first instance of the Supreme Court exercising its power of judicial review to overturn an act of Congress that did not comport with the Constitution. The case also established a lesser-known but equally important legal doctrine: always get it in writing.