Fiduciary Rule Vacated (Beltway Buzz, March 16, 2018)


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.

If, like the Buzz, your bracket is already busted, please take a break from the games and spend a few minutes reading about what happened in labor and employment policy in D.C. this week.

Fiduciary Rule Vacated. On March 15, in a surprise decision, the Fifth Circuit Court of Appeals vacated the U.S. Department of Labor's (DOL) 2016 "fiduciary rule" that had imposed new regulations on financial advisors. The court did not split hairs in ruling that the DOL exceeded its statutory authority in issuing the rule: "The DOL interpretation, in sum, attempts to rewrite the law that is the sole source of its authority. This it cannot do." While some of the fiduciary rule's provisions are already in effect, the decision vacates the rule in its entirety because its "comprehensive regulatory package is plainly not amenable to severance." This latest decision creates some uncertainty as to the current validity of the regulation, as the Tenth Circuit Court of Appeals upheld the rule just a few days prior, on March 13. The circuit split means that the Supreme Court of the United States may have the final say on whether the fiduciary rule stays or goes. Ogletree Deakins will have more analysis on this late-breaking development.

Joint-Employer Update (or the Real March Madness). As stakeholders continue to grapple with the National Labor Relations Board's (NLRB) "reversal of its reversal" of the joint-employer standard, the business community has turned its attention to securing a permanent legislative fix to the problem. With government funding set to expire next week (on March 23), business advocates are targeting the must-pass omnibus appropriations package as a vehicle to include legislative language to codify the "direct and immediate" standard that governed joint-employer determinations for decades prior to the 2015 Browning-Ferris decision. As part of the effort, 74 members of the House of Representatives sent a letter urging appropriators to include a joint-employer rider in the omnibus spending bill. This is a bit of a Hail Mary, but buzzer-beaters and Cinderella stories are what March is all about, so who knows what could happen?

NLRB Nominee Advances. After three delayed votes, NLRB nominee John Ring was finally voted out...

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