The Nomination Game (Beltway Buzz, February 22, 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.

The Presidents' Day holiday (more on this below), a snow day for the federal government, and Congress being out of town resulted in a slow week on the labor and employment policy front. Nonetheless, here are a few things that we've been tracking this week.

The Nomination Game. Though the U.S. Senate is in recess, it gaveled in and out several times this week for sessions that lasted little more than a few seconds. What gives? Well, with scores of vacancies still remaining at executive branch agencies, it is likely that neither Senate Minority Leader Chuck Schumer (D-NY) nor Speaker of the U.S. House of Representatives Nancy Pelosi (D-CA) (see U.S. Constitution, Article I, Section 5, Clause 4) permitted the Senate to recess in order to prevent President Trump from making recess appointments to those vacancies. As the Supreme Court of the United States stated in Noel Canning, "Three days is too short a time to bring a recess within the scope of the [Recess Appointments] Clause."

Wage and Hour Guidance Issued. On February 15, 2019, the U.S. Department of Labor's (DOL) Wage and Hour Division (WHD) issued two Field Assistance Bulletins (FABs):

FAB No. 2019-2 concerns tipped employees. It provides further guidance on the WHD's November 2018 opinion letter that eliminated the 80/20 rule. Obviously, this FAB should be of particular interest for employers in the hospitality and service industries. FAB No. 2019-1 concerns payments of subminimum wages to workers with disabilities, which is permitted under certain conditions pursuant to Section 14(c) of the Fair Labor Standards Act (FLSA). Interestingly, the Raise the Wage Act would eliminate both the tip credit and subminimum wage.

H-1B Speedup Available Again. On February 18, 2019, United States Citizenship and Immigration Services (USCIS) renewed premium processing for certain H-1B petitions. Melissa Manna and Stephen H. Smalley have the details on this fast-track process.

Regulatory Review. This lull in the breakneck pace of labor and employment policy developments gives us a chance to review the regulatory landscape to see what might be heading our way as we head into warmer months.

The DOL's overtime proposal was sent to the Office of Information and Regulatory Affairs (OIRA) for review on January 16, 2019. Upon...

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