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US Supreme Court Nominee, NLRB, Compensation Data & Paid Leave Legislation: Beltway Buzz, July 13, 2018

Always a Bridesmaid . . . Well, the Buzz waited patiently for an important call on Monday night, but we were passed over (again). Instead, President Trump nominated Brett Kavanaugh—currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit—to replace Justice Anthony Kennedy on the Supreme Court of the United States. Hera S. Arsen has the details. And if a judge is best evaluated on his or her dissents, another interesting examination of Kavanaugh’s record is this list of his dissents (notice the first case in particular, dealing with “alter egos” under the National Labor Relations Act). Some other thoughts on the nomination:

  • Kavanaugh’s potential replacement of Kennedy probably won’t shake things up too dramatically from a labor and employment law perspective, but it could matter if the Court ever opines on whether Title VII of the Civil Rights Act of 1964 protects sexual orientation. Further, given the Buzz’s interest in regulatory activity, we will be curious to see whether Kavanaugh—if confirmed—may have an influence on whether or how the Supremes address Chevron deference (though, as Arthur G. Sapper points out, Kennedy had reservations about Chevron, too).
  • Former Senator John Kyl (R-AZ) will serve as Kavanaugh’s “sherpa” to help guide him through the confirmation process (former New Hampshire senator Kelly Ayotte played a similar role for Justice Gorsuch). This process certainly has the potential to suck all the air out of D.C., and could limit the Senate’s ability to deal with other matters of import to labor and employment policy stakeholders, such as confirming nominees to key posts at the U.S. Department of Labor and the Equal Employment Opportunity Commission.
  • As for timing, Senator Mitch McConnell (R-KY) has stated that he would like to vote on Kavanaugh in the fall, preferably before October 1 (the first day of the Supreme Court’s next term). That could be challenging, given Kavanaugh’s paper trail from all of his time in government service. Vulnerable Senate Democrats likely hope that any vote on Kavanaugh stretches beyond Election Day so they can avoid a tough vote right before constituents head to the polls. There are 84 days between July 9 (when Kavanaugh’s nomination was announced) and October 1. There are 120 days between July 9 and November 6 (Election Day). According to the Wall Street Journal, timeframes from nomination to confirmation for justices who were recently nominated are as follows:
    • Ruth Bader Ginsburg: 42 days
    • Sonia Sotomayor: 66 days
    • Elena Kagan: 87 days
    • Neil Gorsuch: 66 days
  • Expect the above-described process to get quite contentious—and ridiculous—over the next few weeks. For example, already Kavanaugh is being criticized for liking baseball and beer. Interestingly, not only does the Buzzshare these interests with Judge Kavanaugh, but we know that they are not disqualifying.

NLRB ADR. On July 10, the National Labor Relations Board (NLRB) announced a new pilot program to encourage stakeholders to take advantage of its Alternative Dispute Resolution (ADR) program. According to the Board’s press release, “The new pilot program will increase participation opportunities for parties in the ADR program and help to facilitate mutually-satisfactory settlements.” While the ADR program has been available for some time, in all the time the Buzz has been practicing before the Board, we can’t ever recall one instance in which we actually used the program. Consequently, we will be curious to see how the pilot program turns out. Maybe NLRB General Counsel Peter Robb will have some feedback on the results of the program when he speaks at Ogletree Deakins’ Corporate Labor and Employment Counsel Exclusive in Palm Springs this November.

Paid Leave Bill Coming? On July 11, the U.S. Senate Committee on Finance’s Subcommittee on Social Security, Pensions, and Family Policy held a hearing entitled, “Examining the Importance of Paid Family Leave for American Working Families.” Testifying were two Senators themselves, Kristen Gillibrand (D-NY) and Joni Ernst (R-IA). Gillibrand touted her Family and Medical Insurance Leave Act (FAMILY Act), which is essentially paid Family and Medical Leave Act (FMLA) leave funded through taxes on both employees and employers. Ernst, on the other hand, endorsed a nascent plan that would allow new parents to receive paid leave by drawing on their Social Security payments and subsequently delaying their receipt of benefits upon retirement. Ernst is working with senators Mike Lee (R-UT) and Marco Rubio (R-FL) on this plan, and they expect to introduce a bill next week.

Senators Want Employer Compensation Data. While most employers were likely grateful that they did not have to include employee compensation and hours worked data in their recent 2018 EEO-1 filings, they should not rest on their laurels. Certain interest groups and policy makers continue to explore ways in which to extract employee compensation data from employers. Recently, senators Elizabeth Warren (D-MA) and Cory Booker (D-NJ) sent a letter to the Federal Trade Commission (FTC) and the Department of Justice (DOJ) that criticizes agencies’ 1996 guidance allowing for an antitrust “safety zone” for employers that share information contained in compensation surveys. The letter further encourages the agencies to update the guidance “to require companies to share compensation survey data with their employees” in order to “empower workers to determine exactly how their pay compares with pay practices across their industry.” So while the EEO-1 disclosure threat may have been tabled for now, employers should know that policymakers continue to explore ways to make compensation information public.

Union Dues on Chopping Block (Again). Just a few weeks after being dealt a blow by the Supreme Court’s decision in Janus, labor unions this week learned that another stream of compulsory dues payments may soon dry up. On July 10, the Centers for Medicare & Medicaid Services (CMS) proposed changes to the Medicaid Provider Reassignment regulation in order “to ensure that taxpayer dollars dedicated to providing healthcare services for low-income vulnerable Americans are not siphoned away for other purposes.” If finalized, the regulation would prevent a current practice among states to withhold union dues from Medicaid home care provider payments. The comment period will close on August 13, 2018.

What’s Goin’ On (in Congress)? Despite our (sometimes) criticism of the lack of legislating in Congress these days, while we were away last week, the Buzz heard through the grapevine that Congress recently accomplished something worthwhile. Just before their July 4 recess, the Senate demonstrated that on certain matters there ain’t no river wide enough to keep them from consensus, and passed a bill to officially rename the facility of the United States Postal Service located at 3585 South Vermont Avenue in Los Angeles, California, as the Marvin Gaye Post Office. Next stop is the White House for the president’s signature. How sweet it is.

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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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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