United States: They're Baaaack (Beltway Buzz, September 13, 2019)

Last Updated: September 20 2019
Article by James J. Plunkett

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what's happening in Washington, D.C. could impact your business.


They're Baaaack. Congress is back in session this week, and my commute once again came to a grinding halt. With roughly three months of scheduled work in D.C. before the end of the year, members in both the U.S. House of Representatives and U.S. Senate are strategizing on how best to use this time. For example, government funding runs out at the end of the month, and Congress will have to come to an agreement—a temporary continuing resolution is likely—to avoid another government shutdown like the one we experienced earlier this year. In the Senate, Majority Leader Mitch McConnell (R-KY) has wasted no time and is already working on confirming more executive branch nominees. In the House, the Buzz is watching activity concerning arbitration agreements (more below) and the Protecting the Right to Organize Act of 2019 (PRO Act), among other matters.

EEO-1 and Done? On September 12, 2019, the Equal Employment Opportunity Commission (EEOC) published in the Federal Register a notice of information collection seeking approval from the Office of Management and Budget for a renewed EEO-1 Component 1 form. Importantly, the EEOC will not seek renewal of the Component 2 form that collects wage and hour data, stating:

At this point in time, the unproven utility to its enforcement program of the pay data as defined in the 2016 Component 2 is far outweighed by the burden imposed on employers that must comply with the reporting obligation. Therefore, the EEOC is not seeking to renew Component 2 of the EEO-1.

The renewal submission does not impact employers' obligations to submit 2017 and 2018 Component 2 data by September 30, 2019. Leigh M. Nason and Hera S. Arsen have the details.

NLRB Activity. The National Labor Relations Board (NLRB) is on a roll and continues to churn out significant decisions.

  • Earlier this week, the Board ruled that a partial plant bargaining unit at a manufacturing facility was inappropriate because, in part, the employees' interests in that unit were not sufficiently distinct from the interests of excluded employees. In clarifying its 2017 decision in PCC Structurals, Inc., the Board set forth a three-step process for determining an appropriate bargaining unit: "First, the proposed unit must share an internal community of interest. Second, the interests of those within the proposed unit and the shared and distinct interests of those excluded from that unit must be comparatively analyzed and weighed. Third, consideration must be given to the Board's decisions on appropriate units in the particular industry involved."
  • Late last week, the Board continued its recent string of decisions clarifying employers' private property rights when confronted by union activity. In the most recent case, the Board ruled that employers may prohibit access to non-employee organizers or protestors as long as they prohibit access to other non-employees who engage in similar activities. Generally speaking, this means that employers will usually be permitted to exclude non-employee union organizers but allow charitable organizations onto their premises. Harry J. Secaras has the details.
  • Finally, Anthony B. Byergo explains how a recent Board decision returns some common sense and stability to the relationship between unions and employers by adopting a "covered by the contract" analysis when evaluating whether an employer has a duty to bargain with a union over potential changes to workplace policies, rules, and the like.

Perks at Work. On September 8, 2019, the U.S. Department of Labor's Wage and Hour Division sent to the Office of Information and Regulatory Affairs (OIRA) its proposed rule clarifying what type of remuneration must be included in employees' regular rate of pay for purposes of calculating overtime. The proposal joins three other high-profile rulemakings under review at OIRA: those involving overtime, tip, and fluctuating workweek regulations. It is shaping up to be a busy fall in the wage and hour regulatory arena.

Anti-Arbitration Bill Advances. On September 10, 2019, the House Judiciary Committee approved the Forced Arbitration Injustice Repeal (FAIR) Act, which would prohibit predispute arbitration agreements in employment, consumer, antitrust, and civil rights disputes. The bill is expected to be passed by the full House sometime next week (it has 222 House cosponsors). Employer groups strongly oppose the bill, which will likely be dead on arrival in the Senate, even though the Senate version has 34 cosponsors (all Democrats).

Cleveland Rocks. September 9, 2019, marked the 126th anniversary of a unique moment in presidential history. On that day in 1893, First Lady Frances Cleveland gave birth to a daughter, Esther, who remains the only child of a president to be born in the White House. But Esther might not even be the most famous of Frances and President Grover Cleveland's children. Her younger brother, Richard Cleveland, was an attorney who defended Whittaker Chambers against Alger Hiss's libel suit. And Esther's older sister, Ruth, is claimed to be the namesake of the Baby Ruth candy bar. But it seems more likely that this claim was advanced by the maker of the candy bar in order to avoid compensating Babe Ruth, the famous baseball player whose career was beginning to take off and who, perhaps not so coincidentally, happened to belt 54 home runs in 1920, the year before the candy bar debuted.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions