Shutdown Fallout (Beltway Buzz, February 1, 2019)

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.

Shutdown Fallout. Shortly after last week's Buzz was issued, President Trump signed legislation to reopen the federal government after 35 days of a partial government shutdown. The short-term deal restores partial government funding until February 15, 2019 (which will arrive sooner than you may think). Reports are now coming out detailing the economic impacts of the partial government shutdown, but what will be the political ramifications? Bipartisanship was already at a low point prior to the shutdown, so the Buzz will be watching to see what impacts the shutdown will have on potential compromises on matters such as immigration, retirement, and nominations.

Joint-Employer Comments. January 28, 2019, was the deadline (finally) for submitting comments in response to the National Labor Relations Board's (NLRB) proposed joint-employer rule. Nearly 29,000 comments were submitted. Among those business groups submitting comments were the Restaurant Law Center and the U.S. Chamber of Commerce. Rebuttal comments, which are not often available in most rulemakings, are due on February 11, 2019. So what happens next? Presumably, the Board will review the comments and issue a final rule (perhaps by fall of this year?). Of course, litigation over the final rule will inevitably follow. Further, the actual Browning-Ferris Industries decision is back at the Board, on remand from the U.S. Court of Appeals for the D.C. Circuit. Finality on this issue isn't coming anytime soon (if at all).

NLRB Returns to Traditional Independent Contractor Standard. Speaking of the Board, late last week, in a case called SuperShuttle DFW, Inc., the NLRB returned to its traditional independent contractor standard based on the common law. In doing so, the Board overturned a 2014 decision that "impermissibly altered the Board's traditional common-law test for independent contractors by severely limiting the significance of entrepreneurial opportunity to the analysis." Bernard J. Bobber and Jesse R. Dill have an in-depth analysis of this important case.

H-1B Rule Finalized. On January 31, 2019, United States Citizenship and Immigration Services (USCIS) finalized its H-1B preregistration rule. The rule went from being proposed to being finalized in about two months, which included Christmas, New...