Policy Matters Newsletter

Policy Matters - Presented by Seyfarth's Government Relations and Policy Group
     
 

Welcome to our Policy Matters Newsletter

Our Government Relations and Policy Group is excited to offer regular updates regarding the actions of Congress, administrative agencies, and other lawmakers at the federal, state, and local levels. Comprised of Seyfarth attorneys with government relations and policy experience, the team will develop solutions for clients and provide ongoing education and advocacy on policy issues. 
 

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June 14, 2018

 
 
House to Vote on Two Immigration Proposals Next Week. Speaker Paul Ryan defused a moderate Republican rebellion with a promise to hold high-stakes votes on two DACA related immigration bills next week. The floor votes will effectively stop the effort to bring up legislation through the discharge petition; Republican moderates reportedly fell two signatures short of the 218 needed to force votes. 
 
The House will consider H.R. 4760, the “Securing America’s Future Act of 2018,” a bill drafted by Judiciary Committee Chairman Bob Goodlatte (R-VA), as well as a second compromise package, the “Border Security and Immigration Reform Act of 2018” (still in draft form), which was assembled by Speaker Ryan in consultation with conservatives and moderates. House Leadership circulated this summary of the draft compromise bill. There are no guarantees that either bill will pass. 
 

June 7, 2018

 
 
BLS Releases New Gig Economy Worker Data. Earlier today, the Department of Labor’s Bureau of Labor Statistics (BLS) issued its much anticipated report on the gig economy. The report, which was the first government study on the subject since 2005, found that the number of temporary workers decreased over the past 12 years, going from 10.7% of the nation’s workforce to 10.1%. Additionally, a survey question within the study found that 79% of independent contractors overwhelmingly preferred their work arrangement to traditional jobs (Table 11), a finding which runs counter to a popular narrative that gig workers would prefer traditional employment.
 
Seyfarth’s Camille Olson, who testified before the Senate Health, Education, Labor, and Pensions Committee on the gig economy in February, was quoted as saying “[t]his report offers new, hard data on workers in contingent and alternative employment arrangements which will help guide the broader debate on the pros and cons of the so-called 'gig economy.'” The BLS plans to release additional findings specific to workers who find gigs through an app or website in September.
 

May 24, 2018

 
 
Supreme Court Upholds Workplace Arbitration Contracts. On Monday, the Supreme Court ruled 5-4 that the National Labor Relations Act does not bar employers from requiring workers to sign arbitration agreements waiving their right to bring class-action claims on disputes, primarily over wages and hours. Associate Justice Neil Gorsuch authored the majority’s decision, siding with the four other conservative justices on the bench. The Wall Street Journal editorial board reacted to the decision, saying, “[a] ruling the other way would have would have abrogated hundreds of thousands of employment contracts and sent trial lawyers to the races. What a difference a single Justice makes.”
 
For a more a detailed explanation of the decision and its implications going forward, see our recently released client alert.
 

May 17, 2018

 
 
Update on Discharge Petition Filed in the House to Force DACA Vote. The discharge petition making its way through the House has caused a divide among Republicans. The discharge petition aims to save the Deferred Action for Childhood Arrivals (DACA) program by forcing a vote on H. Res. 774, which would then lead to the consideration of four different DACA related proposals. In order for the discharge petition to be executed, it must be signed by a majority of House members—at least 218 members, to be exact. If the entire House Democratic caucus were to sign onto the petition, it would take an additional 25 Republicans to reach that threshold. As of today, the petition has 29 signatures, 20 of which are Republicans.
 

May 10, 2018

 
 
Trump Administration’s Spring Regulatory Agenda Released. On Wednesday, the Trump administration released its semiannual unified agenda of regulatory and deregulatory actions for the spring. Mapping out what actions federal agencies plan to take in the coming months, the agenda sheds some light on the administration’s upcoming priorities
 
 

May 3, 2018

 
 
With Congress in recess and out of DC, Policy Matters has an update of what’s been happening in the courts this week:
 
High Court Applies “ABC” Test When Assessing Independent Contractor Status. On Monday, the Supreme Court of California ruled in Dynamex Operations v. Superior Court that a three factor “ABC” classification test is the correct method under state law for determining whether a worker should be classified as an employee or independent contractor. The test presumes that a worker hired to perform services is an employee of the hiring business, subject to the hirer’s ability to provide all three of the following elements:
 
 

April 26, 2018

 
 
Third Judge Rules Against Administration’s Termination of DACA. On Tuesday, U.S. District Judge John D. Bates issued a ruling against the termination of the Deferred Action for Childhood Arrivals (DACA) program, the third such federal judge to do so. In his opinion, Bates stated that the rescission of DACA was arbitrary and capricious under the Administrative Procedure Act since the Department of Homeland Security (DHS) failed to adequately explain why the program was unlawful. “Neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program.”
 
 

April 19, 2018

 
 
Push for Immigration Legislation Renewed in the House. A bipartisan group of House members began a campaign yesterday to pressure Speaker Ryan to bring immigration legislation up for a vote. The lawmakers announced that they had secured the support of 240 members, including 50 Republicans, to vote on a series of immigration bills, including one on DACA. The group is hoping to exercise a rarely used procedural rule known as “Queen of the Hill,” under which the House would vote on several immigration related measures and the bill with the most votes would pass. However, Speaker Ryan has stated several times in the recent past that he would be unwilling to bring a bill to the floor that President Trump would ultimately not sign.
 
 

April 12, 2018
 

by Randy Johnson and Walt Mullon

Speaker Ryan to Retire at End of Term. In a somewhat surprising announcement yesterday, House Speaker Paul Ryan declared that he would not seek re-election to Congress. Speaker Ryan explained that his decision was one that was the best for his family, having nothing to do with the "headwinds" facing Republicans in November. However, Democrats are characterizing Ryan’s retirement as more evidence that the GOP is preparing for a tough midterm cycle. The two likeliest successors to Speaker Ryan are seen as Majority Leader Kevin McCarthy (R-CA) and Majority Whip Steve Scalise (R-LA), but neither has announced plans to run yet. 

 

March 29, 2018
 

by Randy Johnson and Walt Mullon

Omnibus Wrap-Up. Late last week, the Senate passed the $1.3T omnibus bill (65 - 32), which was then sent to President Trump’s desk. After threatening to veto the bill due to a lack of full border wall funding and a DACA fix, the president eventually acquiesced and signed the legislation. The omnibus funds the government through September.
 

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March 22, 2018
 

by Randy Johnson and Walt Mullon

Omnibus Bill Released and Passed by the House. Following weeks of negotiations, Congressional leaders released the $1.3 trillion spending bill Wednesday night. The House of Representatives quickly passed the bill earlier today on a vote of 256 - 167. Now it’s the Senate’s turn to pass the omnibus by the end of Friday to avoid a government shutdown.

The final legislation includes provisions that will increase funding for the military, strengthen background checks for gun purchases, fund a school safety measure grant, and increase funding to combat the opioid epidemic. Among the provisions that didn’t make it into the final bill are: Obamacare stabilization funds, full funding for the President’s proposed border wall, a deal to extend the DACA program, and language to define joint employment under various labor laws.
 
 

March 15, 2018
 

by Randy Johnson and Walt Mullon

Potential DACA Deal in Omnibus Bill. Several reports have indicated that the White House is open to a possible DACA deal being included in next week’s Omnibus bill. While there is said to be no official proposal, a three-year extension of DACA is rumored to be offered in exchange for three years of border wall funding. The White House has publicly denied this, stating that the administration opposes a "three for three" swap. Further, many House Republicans balked at the notion of this deal being included in a “must pass” spending bill. While a DACA fix seems unlikely to be included in the Omnibus, this issue will clearly remain at the forefront. 

As a reminder, the current CR funds the government through March 23.
 

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March 8, 2018
 

by Randy Johnson and Walt Mullon

“New” DOL Program for Wage Violations. On Tuesday, Labor Secretary Alex Acosta announced that DOL would once again be supervising employer efforts to come into compliance after finding a wage-and-hour error or a questionable practice. Similar to Wage & Hour Division policy in the Bush Administration, the new pilot program will permit an employer to resolve FLSA issues after conducting a self-audit of its payroll and/or timekeeping practices. The Payroll Audit Independent Determination (PAID) program will provide employers the opportunity to make good on back pay and avoid litigation. Secretary Acosta stated the program "will help ensure employees receive back wages they are owed, faster." 
 

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March 1, 2018
 

by Randy Johnson and Walt Mullon

Hy-Brand Decision Overturned; Obama-Era Joint Employer Standard Reinstated. Earlier this week, the NLRB vacated its December decision that overturned the Obama-era joint employment standard, a reversal set in motion by conflict of interest questions surrounding Board member Bill Emanuel. A report from the inspector general stated that Emanuel had a conflict of interest because of his former employer’s involvement in Browning-Ferris, the 2015 decision that was reversed by the NLRB’s action in December. See Seyfarth’s Employer Labor Relations blog for more information on the Board’s action. OMB Director Mulvaney commented that the Browning-Ferris joint employer agreement would kill the franchise industry and that he would take a serious look at H.R. 3441, the joint employer bill which passed the House. 
 

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February 22, 2018


by Randy Johnson and Walt Mullon

NLRB Extends RFI Period on “Ambush” Election Rule. The National Labor Relations Board has extended the time to provide comments in response to its Request for Information on the controversial “Ambush” election rule from February 12 to March 19. Several members of the business community have requested still another 60-day extension in order to conduct further research on the issue. If the Board does decide to revisit the rule, it may wait until Board nominee John Ring is confirmed by the Senate, which would restore the Board’s 3 - 2 Republican Majority. Ring is currently scheduled to go before the Senate HELP Committee on March 1, with a committee vote scheduled for March 7. See Jaclyn Hamlin’s post for more information on the RFI
 

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February 15, 2018


by Randy Johnson and Walt Mullon

Missed Opportunity for Long Sought After Immigration Legislation. With Senator McConnell fulfilling his promise to bring an open immigration debate to the Senate floor this week, both partisan and bipartisan solutions were offered by lawmakers. However, as noted below, none of the measures were able to pass through the Senate this afternoon. Considering the Senate has been able to pass comprehensive immigration reform legislation in the recent past (e.g., S. 744 in 2013), some might view this as another sign that Washington is more divided than ever. 
 

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February 8, 2018


by Randy Johnson and Walt Mullon

Bipartisan Budget Deal Reached in Senate. Senators Mitch McConnell and Chuck Schumer unveiled a bipartisan two-year budget deal that funds the government through March 23 while lifting defense and non-defense spending by $300 billion and raising the debt ceiling until March of next year. The bill provides almost $90 billion in hurricane and wildfire disaster aid, extends CHIP for an additional four years, and provides funding to update infrastructure as well as to combat the opioid epidemic. President Trump tweeted his approval of the budget deal and the measure is expected to pass the Senate. However, GOP fiscal hawks immediately expressed their aversion to the package which may impede its passage in the House. 
 

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