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August 2015

Congress goes on recess with a plenty left to do...

When Republicans took over both the House and Senate last year, they promised to restore order to a Congress beset by partisan bickering and lack of action.

But, as lawmakers headed out the door for their annual August recess, impasse and inaction were still the name of the game being played on Capitol Hill.  Despite majorities in both the House and Senate, GOP leaders had to put off action on several key measures—and were in danger of approaching deadlines on funding the federal agencies that could force the government to shut down once again.

Here are some of the biggest fights awaiting lawmakers when they return after Labor Day:

Government Spending:  The Senate will have to come up with a way to fund the government past the end of September.  After Democrats blocked a defense spending bill, Senate Leader Mitch McConnell, R-KY, hasn’t even brought another appropriations measure to the Senate floor.

At issue are the demands of Senate Democrats that Republican leader roll back budget caps for both Pentagon and non-defense spending. But so far, McConnell has been unwilling to negotiate.

On the House side of the Capitol, a group of conservative House Republicans are demanding that any spending bill be tied to blocking $500 million in federal funds for Planned Parenthood.  They are up in arms over a series of Planned Parenthood videos discussing the donation of fetal tissue.

The debt ceiling:  Treasury Secretary Jacob Lew has told Congress that they will have to raise the federal debt ceiling by mid-October or face a default and government shutdown.

Sound familiar?

Cynics are already charging that the Obama administration is sounding these alarms to make life difficult for Republicans just as their presidential primary campaigns are reaching full steam.  Several potential candidates, including Sen. Ted Cruz, R-TX, are boasting that the GOP must make a last stand to block any further increases in the debt ceiling.  And Democrats would love to pin the blame on the Republicans if the government is forced to shut down.

Regardless of any political motives for predicting a government default, there is little doubt that another increase in the debt ceiling will be needed some time before the end of the year.  That means Congress may be forced to act by mid-October.

Iran nuclear deal:  Congress will have only two weeks once they return from their August recess to approve or disapprove President Obama’s controversial Iran nuclear deal.  More importantly, perhaps, opponents of the deal will have more time over the recess to lobby a number of fence-sitting Democrats.

Congressional approval will rely on the votes of Senate Democrats, many of whom are still undecided.  Pro-Israel lobbying groups are already gearing up television ads to put pressure on lawmakers to oppose the Iran deal.

President Obama views the controversial treaty as a centerpiece of his legacy, and has embarked on a personal lobbying campaign to convince wavering Democrats to support him.

Highway funding:  Congress kicked the can down the interstate highway by enacting a three-month stopgap funding measure for federal road building programs after the House failed to match a six-year plan that had been passed by the Senate.

Now, the House will have to come up with its own long-term bill before the end of September and then reconcile that bill with the Senate.  A House proposal to fund highway construction through tax reform measures has been soundly rejected in the Senate.

NLRB "ambush election rules" upheld in court for the second time…

In a further setback for business groups, a second federal judge has upheld the National Labor Relations Board’s new “ambush election rules” that enable faster union representation elections and provide additional weapons for union organizers.

U.S. District Court Judge Amy Berman Jackson in Washington, D.C., rejected arguments raised by the U.S. Chamber of Commerce and other business groups, who claimed that the new rules curtailed their ability to contest union election efforts and shifted the odds in favor of unions.

Other groups joining the Chamber in this case included the National Association of Manufacturers, National Retail Federation, and Society for Human Resource Management (SHRM).  The business groups immediately said they were considering an appeal of the decision.

This is the second failed legal attempt to set aside the current NLRB rules. A U.S. District judge in Texas earlier rejected a challenge brought by a Texas construction association.  Congressional efforts to block the rules have been stymied by a veto threat from President Obama.

Labor leaders immediately hailed the latest decision.
"So far, every judge to consider a challenge to the rules has rejected the challenge and found that the rules are legal and within the National Labor Relations Board's authority,” AFL-CIO spokeswoman Carolyn Bobb said in a statement.

The NLRB rules generally speed the timetable for providing notice and holding a union organizing election and provide unions with more access to employee information.  The rules allow:

  • Posting an election notice only two days after providing notice to the employer and setting of the election at the “earliest date practicable;”
  • Requiring the employer to file a written Statement of Position before the customary pre-election hearing;
  • Giving NLRB regional directors discretion to decline even to consider claims of ineligible voters or inappropriate bargaining units;
  • Requiring the employer to furnish the union with not only names and addresses, but also e-mail addresses and personal cell phone numbers of employees.

The NLRB rules went into effect this past April, but they have been under almost constant attack from business groups.

Obama overtime pay proposal meets growing resistence from business…

President Obama’s proposed rule to dramatically expand the number of salaried workers eligible for overtime pay is encountering heavy resistance from business groups and some economists.

Unable to convince Congress to increase the federal minimum wage for hourly employees, the administration announced a new rule that would raise the salary threshold below which employees who work more than 40 hours a week automatically qualify for time-and-a-half overtime from the current $23,660 a year to a new level of $50,440 a year.

Under current federal wage rules, a worker earning at least $455 per week ($23,660 annualized salary) is exempt from overtime requirements assuming the worker’s job includes executive, administrative or professional duties.  The proposed rule more than doubles that minimum salary to $970 per week.

Labor Secretary Tom Perez says the rule will boost wages and narrow income inequality.

However, some business strategists say that while the new rules may result in more jobs, they will be low-paying entry level and part-time positions.  Rather than pay more to salaried managers, it may make more sense, they say, for a business owner to hire more inexperienced and part-time workers to avoid the overtime pay for higher-wage workers.

The National Retail Federation said the proposal will limit the number of hours an employee can work and curtail promotions by limiting the number of higher-paying managerial slots.

“There simply isn’t any magic pot of money that lets employers pay more just because the government says so,” said David French, the trade group’s senior vice president for government relations.

EPA suffers a setback on cross-state pollution rules…

The Environmental Protection Agency (EPA) got a strong slap on the wrist when a federal appeals court in Washington, DC, ruled that EPA over-reached in its 2011 regulations on cross-state sulfur dioxide and ozone emissions.

The judges said the rules, which are meant to govern pollution that drifts across state lines, are too broad and need to be rewritten.

Several states had challenged the regulations, arguing that the EPA had exceeded its authority by using uniform pollution standards rather than measures based on how many pollutants each state actually releases. 

The U.S. Supreme Court, while upholding the underlying theory of the rules last year, sent the case back to the appeals court to decide specific challenges brought by the complaining states.  In its ruling, the appeals court looked at the emissions budgets for 15 states and said EPA had overreached in its requirements.

“EPA’s uniform cost thresholds have required states to reduce pollutants beyond the point necessary,” wrote Circuit Court Judge Brett Kavanaugh. “That violates the Supreme Court’s clear mandate.”

The judges did not throw out the rules but ordered EPA to rewrite the requirements for states that challenged them. 

States enact new chemical rules ahead of upcoming TSCA reform…

As Congress moves to approve long-sought reforms of the Toxic Substances Control Act (TSCA), a number of states are rushing through new chemical regulations in hopes of having those rules “grandfathered” by the new federal law.

The House has already passed its version of TSCA reform, and the Senate is expected to move on its own bill by early September.  One of the most contentious elements in both the House and Senate versions has been the extent to which federal regulations of dangerous chemicals would over-ride any state chemical rules.

One of the goals of the TSCA reform effort was to eliminate a balkanization of regulations and conflicts between state and federal rules.  But Democrats, led by the powerful California delegation in Congress, have pushed to permit states to move faster or reach farther in their chemical rules.  California is easily the most aggressive in this regard.

As a result, originally strong federal preemption of all state regulations has given way to compromises, including provisions that may protect—or grandfather—many state chemical rules that are in place prior to enactment of the pending federal TSCA bill.

At least 13 states have either passed or are still considering new chemical regulations, many of them focusing on labeling requirements for children’s clothing and other products, according to an analysis by published by Arnold and Porter, a prominent Washington, D.C. law firm.

“Manufacturers, importers, and retailers face a great challenge trying to keep up with emerging state chemical regulatory requirements,” Lawrence E. Culleen and Peggy Otum, of Arnold and Porter, said in the article.

OSHA moves to "overturn" an adverse federal court ruling…

The federal Occupational Health and Safety Administration (OSHA) has proposed new employer record-keeping requirements that seek to effectively overturn a recent federal appeals court decision.  The newly proposed OSHA rules require businesses to maintain their records of workplace accidents for five years even though the statute of limitations for sanctions imposed by federal workplace safety laws is only six months.

The new OSHA regulations fly in the face of a 2012 ruling by the U.S. Court of Appeals for the District of Columbia circuit, which held that a business owner violates the law only by failing to record an accident within seven days of the incident.  The three-judge panel effectively threw out OSHA’s position that it could prosecute a business for failing to keep accurate records for up to five years.

Rather than appeal the court’s opinion, OSHA said it was issuing new rules “to clarify employers’ obligations under its recordkeeping regulations and to elaborate on its understanding of the statutory basis for those obligations.”  But, legal experts predicted that the courts would overturn the new rules, as well.

OSHA issued the new regulations late last month, with public comments due by Sept. 28.  The proposed new rule requires employers to maintain records for “all recordable injuries and illnesses” for five years.