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Beltway Buzz, September 14, 2018

NLRB Issues Joint-Employer Proposal. Whoa. Today, the National Labor Relations Board (NLRB) published a proposed rule regarding its joint-employer standard. The proposed rule would undo the Board’s 2015 Browning-Ferris Industries decision and return the Board to a “direct and immediate” joint-employer standard. More details here. Back in June, NLRB Chairman John Ring promised that joint-employer regulation would issue before the end of summer, and he was right on target: autumn begins one week from tomorrow.

NLRB to Review Construction Industry Prehire Agreements. On September 11, 2018, the NLRB issued a notice inviting briefs from the public on whether the Board should revamp its policy on what is required to transform a construction industry prehire agreement into a “traditional” collective bargaining agreement. Pursuant to prehire agreements—which are permitted under federal law but limited to the construction industry—labor unions can enter into a contract with an employer without the majority support of employees (indeed, as the name entails, many employees will have yet to be hired for the project). However, labor unions like to transform these prehire agreements into “traditional” collective bargaining agreements because prehire agreements do not bar representation petitions and do not obligate an employer to continue to bargain upon expiration of the agreement. In its solicitation for briefs, the Board asks stakeholders to address whether a prehire agreement can be transformed into a “traditional” collective bargaining agreement simply via the language in the agreement, or whether a contemporaneous showing of actual majority support of employees is necessary. Briefs are due on Friday, October 26, 2018.

We’re From the Government, and We’re Here to Help. Heads up, federal contractors:

  • T. Scott Kelly has the details on the 750 corporate scheduling announcement letters that the Office of Federal Contract Compliance Programs (OFCCP) mailed out late last week.

  • Further, OFCCP issued a directive this week that proposes changes to its procedures for requesting and maintaining functional affirmative action program (FAAP) agreements. Hera S. Arsen has more.

  • Finally, though this isn’t exactly related to labor and employment policy, if you’ve read this far, you’re probably a federal contractor, so you might be interested to know that the Department of Defense recently proposed regulations “to streamline the performance-based payment process.” While this might sound good, the U.S. Chamber of Commerce warns that “[t]he proposed regulation would reduce defense contract progress payments as much as 30% below current standards.”

DOL Scrutinizes H-2B Users. The Department of Labor’s (DOL) Wage and Hour Division (WHD) recently announced new initiatives that will focus on the H-2B temporary visa program in both the landscaping and hotel industries. The initiatives include “providing compliance assistance tools and information to employers and stakeholders, as well as conducting investigations of employers using this program.”

Kavanaugh Update. The United States Senate Committee on the Judiciary has set September 20, 2018, as the date on which they will vote to advance Judge Brett Kavanaugh out of committee. It is presumed that Kavanaugh will make it through the committee and proceed to a vote on the Senate floor sometime during the week beginning September 24. Kavanaugh, who must still be a bit toasty from being on the hot seat all last week, recently submitted his 263-page response to Questions for the Record (QFRs) he received from senators after his grilling last week. Over the past 100 years, from 1916 (Justice Brandeis) to 2017 (Justice Gorsuch) a combined total of 1,247 QFRs were submitted to 47 Supreme Court nominees. Kavanaugh alone responded to a staggering 1,287 QFRs.

Political Schmear Tactics. While the political volume in D.C. is turned up to 11 these days, perhaps the most outrageous (and, frankly, offensive) political story this week came from New York City, where Democratic gubernatorial candidate Cynthia Nixon inexplicably ordered a cinnamon raisin bagel with cream cheese. And lox. And onions. And capers. While no one can say for sure whether this horrific combination cost her the election in yesterday’s primary, the native New Yorker in us thinks such an act should be per se disqualifying. That being said, in Nixon’s defense, she isn’t the first politician to make a public gaffe at the deli counter or a restaurant. For example, current New York City Mayor Bill de Blasio overcame the utter shame and embarrassment that comes with eating pizza with a knife and fork. And although he never made it to the White House, becoming secretary of state isn’t too shabby for the man who once ordered Swiss cheese on his Philly cheesesteak.

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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...

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