Supreme Court Upholds Arbitration Waivers, GDPR Privacy Regulation in Effect & Tricare Moratorium: Beltway Buzz, May 25, 2018
No, this week’s edition of the Buzz will not be in #ALLCAPS, but folks in D.C. are certainly excited that their hockey team made it to the Stanley Cup Final. If the District had any meaningful representation in Congress at all, we’re sure they’d be making friendly bets with their Nevadan counterparts over the outcome of the series. So let’s go Caps, and here is your Beltway Buzz.
Arbitration Class Waivers Upheld at Supreme Court. Obviously, the big news this week was the Supreme Court’s decision in Epic Systems, which holds that class action waivers in pre-dispute arbitration agreements are enforceable. Ron Chapman, Jr., and Christopher C. Murray have the details on the decision itself and what this means for employers (while Arthur G. Sapper explores what the decision means for Chevron deference in the future). At the Buzz, we will be watching very closely to see if the decision has a Lilly Ledbetter–like impact on legislative efforts in Congress. Already, at least some members of Congress are using Monday’s decision as a rallying cry in support of the Ending Forced Arbitration of Sexual Harassment Act of 2017, which would prohibit employers and employees from arbitrating claims relating to sexual discrimination. So while the Supreme Court on Monday had the final say as far as the current law is concerned, the issue of arbitration in the workplace is far from over.
Privacy Regulations in Effect. Today the European Union’s General Data Protection Regulation (GDPR) went into effect, and it impacts not just European businesses, but also any U.S. companies that have employees in Europe or do business in Europe. With its long reach, the GDPR is very much “one Reg to rule them all,” so all employers should be familiar with its requirements (especially considering its significant penalties for noncompliance). Members of Ogletree Deakins’ Data Privacy Practice Group explain the GDPR much better than we can both here and here.
TRICARE Moratorium Extended. As part of our review of the latest regulatory agenda, last week the Buzz briefly discussed the Office of Federal Contract Compliance Programs’ (OFCCP) five-year moratorium on investigations of TRICARE contractors. But right after we hit “send” on last week’s edition, OFCCP announced that it would extend this moratorium for another two years, until May 7, 2021. Leigh M. Nason and Hera S. Arsen have more. The Buzzis hopeful that this time is used productively and OFCCP (or Congress) can eventually provide some clear guidance to federal contractors and subcontractors as to whether they are subject to OFCCP’s jurisdiction as a result of their participation in federal healthcare programs.
Update on H-4 EAD. Last week, the Buzz reported that, according to the May 9, 2018, regulatory agenda, United States Citizenship and Immigration Services (USCIS) will propose to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization by June of this year. As part of a May 22 status update filing in litigation over the 2015 regulations that originally authorized the work permits, the Department of Homeland Security (DHS) informed the court that its proposal to rescind the employment authorization “is currently in final DHS clearance” and will subsequently be sent to the Office of Management and Budget for review before publication. While this part of the regulatory process is always hard to predict, given this news, the Buzz is of the opinion that the regulatory agenda’s June prediction may be a bit aggressive and that the H-4 proposed rule might not appear until July or August.
Queen’s Coronation? A few weeks ago, the Buzz discussed the little-used “queen-of-the-hill” strategy in the House of Representatives with regard to immigration reform. This week, certain House legislators are continuing their effort to trigger this process—which would provide for votes on a series of four immigration bills—by filing a discharge petition to circumvent both the normal committee referral process and House leadership by bringing the resolution directly to the floor. The discharge petition needs 218 votes (a majority of House members), and it currently has 213 cosponsors. Media reports indicate that the 218 vote hurdle will be met sometime after legislators return from the Memorial Day holiday weekend. If the discharge petition succeeds, many House watchers predict that the bipartisan Uniting and Securing America Act of 2018 (H.R. 4796) would come out on top. Regardless of what happens in the House, the chances of getting 60 senators to agree on any immigration matter just a few months prior to the November elections are slim.
Government at Work. Because the Buzz likes to poke fun at Congress and the federal government from time to time, we thought we would provide a few lighthearted examples of some of the more bizarre criminal provisions of the U.S. Code and the Code of Federal Regulations (and we’re quite confident that readers could inform us of some similarly wacky state-specific prohibitions). Inspired by the A Crime a Day Twitter feed, here is an incredibly small sample of some (rather benign) activities that can get you in trouble with the feds:
- It is unlawful to bring your “nunchaku” onto the Fort Lewis, Washington, military facility unless it is used for “legitimate martial arts training.”
- It is a misdemeanor, punishable by up to one year in jail, for a warehouseman, broker, cleaner, sheller, dealer, crusher, or salter of peanuts to willfully file false reports with the Secretary of Agriculture regarding “the quantity of peanuts and peanut oil received, processed, shipped, and owned by him or in his possession.”
- If you manufacture canned food products, then your “Beans with Frankfurters in Sauce” must contain at least 20 percent frankfurters or wieners by weight. The Buzz applauds those manufacturers that view this criterion as a floor, not a ceiling.
- It is unlawful to import into the United States a pregnant Canadian goat, while importing pregnant goats from Mexico is apparently allowed.