March Government Updates

Immigration Compromise Remains Elusive as Talks Slow

Negotiations have slowed down in reaching an immigration compromise following failure in the Senate to approve an immigration bill on Feb. 15. The need for immediate action has slowed following an injunction issued by a federal court on Feb. 13, preventing the Trump Administration from ending the Deferred Action for Childhood Arrivals (DACA) program.

President Trump had imposed a March 5 deadline for addressing the DACA program, which prevents individuals who came to the U.S. illegally as children from being deported. In September 2017, the Administration announced it would rescind the program and gave Congress six months to reach a compromise. The deadline has been rendered irrelevant following the federal court injunction.

The Trump Administration has suggested it is open to a short-term extension of the DACA program, in exchange for funding construction of part of a border wall along the U.S.-Mexico border. The White House has said it opposes a deal that would fund construction of the border wall for three years, in exchange for a three-year extension of the DACA program.

NLRB Reverses Course Again on Joint Employer Standard

On Feb. 26, in a 3-0 decision, the National Labor Relations Board (NLRB) unanimously vacated a decision that returned to a traditional standard for joint employer liability. The decision was reached following a report by the NLRB Inspector General that questioned Board member Bill Emanuel’s involvement in the case.

Emanuel’s law firm represented Browning-Ferris Industries in the 2015 case that expanded the definition of joint employer liability to indirect control. This led to confusion among businesses as to what constitutes a joint employer relationship.

In December 2017, the NLRB returned to the traditional standard. In a 3-2 decision, the Board stated that to be classified a "joint employer," jointly liable for labor violations, a business must have a direct and immediate connection to the employees in question. NLRB member Bill Emanuel voted with the majority in that case.

The reversal returns joint employer liability to the standard set during the Obama Administration in the Browning-Ferris case. Business groups may push harder for Congress to amend the National Labor Relations Act following the NLRB’s reversal.

Congress Looks to Reach New Spending Agreement

Congress will look to reach an agreement on government spending the week of March 19 and avoid a government shutdown. Current funding for the federal government expires on March 23. A government shutdown will occur if a spending agreement is not reached.

The federal government has been operating on a series of continuing resolutions (CRs) for Fiscal Year 2018 that began on Oct. 1, 2017. The current CR, the fifth CR of the fiscal year, includes a two-year budget framework that increases funding for domestic programs by $128 billion and defense by $160 billion. It was thought that an agreement on spending caps would prevent the need for another CR, but Democrats have expressed concern with inclusion of what they consider controversial provisions.

NLRB Extends Comment Period Deadline for Union Elections Rule

For a second time, the NLRB has extended the public comment period for altering union election rules set by the Obama-era Board. Comments now must be received by April 18 as part of its request for information.

As proposed, NLRB would undo the rule that took effect in 2015 the changes that speeds up workplace organizing by postponing employer litigation until after a union election. The rule also ended the 25-day waiting period between when a union election is requested and when it takes place. Employers have noted that many union elections were successful under the previous rule and changes were not needed.

The prior deadline for submissions was March 19, after it was extended from the original Feb. 12 deadline. More information on the request for information can be found here.

Senate Committee Approves SBA Office of Advocacy Nominee

The Senate Committee on Small Business and Entrepreneurship has approved the nominations of David Tryon to be Chief Counsel at the Small Business Administration (SBA) Office of Advocacy. SBA’s Office of Advocacy plays an important role in advancing the views and concerns of small business before Congress, the White House and federal agencies. Tryon’s nomination now awaits confirmation by the Senate.

DOL Announces New Program to Expedite Payment to Workers

The Department of Labor’s (DOL) Wage and Hour Division has announcing a new pilot program, the Payroll Audit Independent Determination (PAID) program, which expedites resolution of inadvertent overtime and minimum wage violations under the Fair Labor Standards Act (FLSA).

The PAID program facilitates resolution of potential violations, without litigation, and ensures employees promptly receive the wages they are owed.  Under this program, the Wage and Hour Division will oversee resolution of the potential violations by assessing the amount of wages due and supervising their payment to employees.

The Division will not impose penalties or liquidated damages to finalize a settlement for employers who choose to participate in the PAID program and proactively work with the Division to fix and resolve their potential compensation errors.  Employers may not participate in the program if they are in litigation or currently under investigation, and likewise cannot use the pilot program repeatedly to resolve the same potential violations. Settlements will be limited in scope to only the potential violations at issue. The Division will implement the pilot program nationwide for approximately six months, after which it will evaluate the pilot program and consider future options.