Window On Washington - March 5, 2018, Vol. 2, Issue 9
Outlook for This Week in the Nation's Capital
FY18 Omnibus Wrap-up: On Thursday, Appropriations Subcommittees had to report any unresolved issues up to the Full Committee and while the work largely appears to be done, there are a few remaining issues. Also, at issue are multiple policy riders also called poison pills that could be attached to the Omnibus. Possible riders include an EPA rule on clean drinking water, a mandate that the Census include a question related to immigration status, and language that would deny women access to reproductive health care. Democrats have threatened to vote against the Omnibus if some of these riders and others are included in the bill which could potentially mean it would not pass the Senate. Congress needs to pass the Omnibus by March 23. In order to meet this deadline, the plan is to finalize the bill by March 9 and file it in the House by March 12. The House would want to pass the bill by March 16 and allow the Senate to have a week for debate before the deadline.
Omnibus Add-ons: It is likely that some additional legislation will be added onto the Omnibus. Possible add-ons include: Coast Guard reauthorization, DHS reauthorization, National Flood Insurance Program extension, a border security authorization bill, TSA reauthorization, FCC reauthorization and legislation related to autonomous vehicles.
Infrastructure Package: Less than a month after the infrastructure package was formally proposed, Senate Majority Whip Cornyn is saying it's unlikely the proposal would be passed this year. There are other issues that Congress wants to work on and the calendar is tight in an election year. Multiple Democrats had also already expressed their opposition to multiple portions of the proposal.
Window On Washington – Last Week in the Nation's Capital
Congressman Womack to Lead Budget Reform Panel: Rep. Steve Womack will lead the new Joint Select Committee on Budget and Appropriations Process Reform, which was started with the goal of fixing perennial problems with the system. The Bipartisan Budget Act of 2018 gives the 16-member committee until Nov. 30 to "provide recommendations and legislative language that will significantly reform the budget and appropriations process." (Arkansas Online)
Campaign Finance Changes Being Considered in Omnibus Bill: Lawmakers have attached various campaign finance provisions to House and Senate versions of appropriations bills, which must pass this month to keep the government operational. One measure would roll back limits on churches, which are prohibited under current law from advocating for candidates because of their tax-exempt status. Other changes would relax rules affecting secret and wealthy donors and increase the amount of cash that political parties could spend on candidates. Ultimately, one or more may be dropped as part of budget negotiations. (The Washington Post)
Bipartisan Bill Introduced to Address the Opioid Crisis: A bipartisan group of senators has introduced a bill that would add $1 billion to fighting the opioid epidemic. The bill is being sold as CARA 2.0 – a follow-up to 2016's Comprehensive Addiction and Recovery Act (CARA). The new bill would impose new rules to restrict access to opioid painkillers and open up access for opioid addiction treatment while adding $1 billion to facilitate those ideas. (Vox)
Senator Calls for Resignation of HHS Official Who Denied Abortions for Unaccompanied Minors: Sen. Patty Murray called for the resignation of Scott Lloyd, an official at the Department of Health and Human Services who has tried to block unaccompanied minors in U.S. custody from getting abortions. HHS's Office of Refugee Resettlement, which cares for minors who enter the country without their parents, took an "ad hoc" approach to blocking pregnant minors from getting abortions, according to a deposition of Lloyd released by the American Civil Liberties Union, which is suing the administration over the policy. (The Hill)
Senators Say DOE May Have Reimbursed Contractor for Fighting Whistleblower Claims: Sens. Claire McCaskill and Ron Wyden asked Secretary Perry about the issue, citing documents that appear to show that the National Nuclear Security Administration paid more than $24 million to the partnership of Lawrence Livermore National Laboratory for costs from a series of whistleblower cases. Rules generally prohibit contractors from recovering such costs from federal agencies. (The Hill)
HHS Secretary Working on Key Recommendation to Fight Opioid Epidemic: Health and Human Services Secretary Azar said he's willing to exempt more state Medicaid programs from a long-standing restriction that severely limits where those struggling with addiction may get treatment. He will work on removing what's known as the "IMD exclusion" – a federal law banning facilities with more than 16 beds from providing substance abuse treatment. Treatment advocates, governors and medical providers have lobbied heavily to remove this exclusion, which has been in place since the Medicaid program was created half a century ago. (The Washington Post)
New NIH Policy Will Require Crucial Age-based Pediatric Research Data: The new NIH policy takes effect in 2019 and for the first time requires researchers to report the ages of participants in clinical research studies funded by the agency. The 21st Century Cures Act signed into law on Dec. 13, 2016, mandated the change. (AAP News)
DOJ Inspector General Investigating GOP Russia Memo Claims: The Justice Department's inspector general is looking into a House Republican memo's claim that prosecutors and FBI agents misled a federal judge when applying for warrants to surveil a Trump campaign adviser with ties to Moscow. The GOP memo charged that federal officials did not fully disclose important facts in an October 2016 FISA warrant application to monitor the communications of Trump campaign adviser Carter Page. (Politico)
DOJ Reviewing Oakland Mayor's Tipoff of ICE Raids: The Department of Justice was reviewing the actions of Oakland Mayor Libby Schaaf, who previously alerted residents in advance of an Immigration and Customs Enforcement raid in Northern California. Schaaf has defended her statement, saying she felt it was her duty to warn residents of the ICE action. Oakland, like many California cities, has declared itself a sanctuary for those here illegally, and officials there have vowed to fight President Trump's immigration crackdown. (Los Angeles Times)
GAO Reports that DoE's Delay in Funding Projects Created Significant Uncertainty: The Trump administration's delays in funding projects for the Advanced Research Projects Agency-Energy program created significant uncertainty for funding recipients, the Government Accountability Office found. "DOE's financial assistance review process created uncertainty, which led to a variety of impacts – the most frequently cited of which were potentially delayed project timelines and difficulties staffing project teams," the GAO said. (The Hill)
DOE Working to Start Cyber Office in FY18: The Department of Energy is trying to have its new cybersecurity office, the Office of Cybersecurity, Energy Security and Emergency Response, open before the end of the fiscal year. The office plans to focus on tasks that are actionable, near-term and highly responsive. (Clark Hill Insight)
Treasury and IRS to Clarify New Carried Interest Rules: On March 1, the IRS and Treasury announced their intent to issue regulations addressing the new carried interest rules enacted as part of tax reform. More specifically, they intend to clarify that the new rules apply to certain partnership interests held by S corporations. (Clark Hill Insight)
DOL Revives Prior Practice of Issuing Fact-Specific Opinion Letters In Response to Employer Wage & Hour Questions: The Department of Labor's Wage and Hour Division recently made good on its promise to revive wage and hour Opinion Letters by issuing seventeen (17) such letters addressing whether a variety of occupations are exempt from overtime under the Fair Labor Standards Act. In addition, the WHD reports that it has received requests for opinion letters regarding hot topics such as how the FLSA interacts with the burgeoning gig economy and the growing use of mobile technology to work outside the office. Opinion letters provide employers with fact-specific legal clarity and that they potentially can use to support a "good faith reliance defense" for actions that may otherwise constitute federal wage and hour violations. (Clark Hill Insight)
The National Labor Relations Board Vacates Its Recent Joint Employment Ruling: The National Labor Relations Board recently vacated its December 2017 decision in Hy-Brand Industrial Contractors, Ltd., which limited joint employer liability for affiliated businesses. By vacating the Hy-Brand decision, the broader joint employer analysis announced in Browning-Ferris may now apply. Although the NLRB will likely revisit this issue once a fifth member of the Board is confirmed by the Senate this spring, employers should continue to seek legal counsel to analyze potential joint employer relationships while the legal standard remains in flux. (Clark Hill Insight)
GDPR: European Law Makes Big Demands on U.S. Companies: On May 25, 2018, enforcement of the European Union’s (“EU”) General Data Protection Regulation (“GDPR”) will begin. GDPR will impact a significant number of U.S. companies, big and small. With penalties reaching 4% of global turnover (revenue) or €20 million, whichever is greater, noncompliance can be very costly. In general, U.S. companies that process personal data of European individuals are subject to GDPR if they: (1) have a physical presence in the EU, (2) have European employees, (3) direct the sale of products or services to Europeans, (4) provide services to a business subject to GDPR or (5) regularly monitor or track European individuals. (Clark Hill Insight)
DACA Deadline Arrives with Diminished Urgency: A program that temporarily shields hundreds of thousands of young people from deportation was scheduled to end Monday but court orders have forced the Trump Administration to keep issuing renewals, easing the sense of urgency. DACA advocates are using the deadline to intensify pressure on the White House and Congress for permanent protection. The ACLU said Sunday that it launched “multiple six-figure advertising buys” with United We Dream and MoveOn.org, focusing on Trump. (The Washington Post)
H-1B Filing Season to Begin April 2, 2018 – Lottery is Anticipated: Employers are reminded to identify new candidates who will require new H-1B sponsorship as soon as possible to ensure that these applications are accepted for processing. April 2, 2018 is the first date that an employer is able to file and have an H-1B petition received on behalf of a foreign national who has not possessed H-1B status before. Employees with approved H-1B petitions will be able to begin work in that status on October 1, 2018. This year all new H-1B applications must be received by USCIS between April 2nd and April 6th. (Clark Hill Insight)
Top Senate Armed Services Democrat Calls for Cuts to Defense Infrastructure: The Senate Armed Services Committee's top Democrat, Jack Reed, said the Pentagon must find ways to economize even though it did not ask for a new round of base closures in its $686 billion budget request for fiscal 2019. If there are facilities the Pentagon can consolidate, outside of a BRAC round, it should do so, said Reed. He and SASC Chairman John McCain, unsuccessfully sought approval for a BRAC in the annual defense policy bill last year. (Defense News)
NASA is Still Without an Administrator: The Trump administration has twice nominated Representative Jim Bridenstine, 42, an Oklahoma Republican, to the post of NASA administrator. And twice, the Senate Commerce, Science, and Transportation Committee voted along party lines to send his nomination to the full Senate. And there it has languished. Bridenstine has been blocked by all 49 Senate Democrats. Florida's Congressional delegation enjoys an outsized influence on NASA because of Cape Canaveral, and Senator Bill Nelson, who flew on the Space Shuttle Columbia in 1986, isn't a Bridenstine fan. His colleague Marco Rubio, the junior senator for the Sunshine State and a Republican, doesn't want Bridenstine, either. (Bloomberg)
Government Warns of Additional James Webb Delays and Cost Overruns: The Government Accountability Office has issued a report to Congress regarding NASA's James Webb Space Telescope, noting the significant risk of additional launch slips beyond June 2019 and the potential for the project to reach and even breach its $8 billion cost cap. The report follows the most recent launch delay, announced in September 2017, and expressly states that the telescope's prime contractor, Northrop Grumman, is the project's critical path to launch. (NASA Space Flight)
'We're Listening,' Department of Transportation Says on the Future of Driverless Cars: The visionary world where cars will travel about without drivers will be shaped by a third set of federal guidelines this summer, one that seeks to nudge the nascent industry rather than regulate it. "We are not going to be selecting what [technology] should be used," Derek Kan, undersecretary for transportation policy said. "We're looking at ways to evaluate outcomes. Instead of a regulation that says, 'Machine must have A, B and C in a vehicle', we hope to look at how safe a vehicle is at the other end." (The Washington Post)
States Confront New Mandate on School-Spending Transparency: A tricky financial-transparency requirement in the Every Student Succeeds Act (ESSA) has cranked up tensions among state politicians, school district administrators, and civil rights activists over public understanding of how districts divvy up their money among schools. ESSA requires districts to break out school-level spending by December 2019-a first-time federal requirement. It's a level of detail unknown even to most district superintendents. (Education Week)
Clark Hill Simply Smarter Employment Law SeminarExplore more
The Learned Concierge - December 2023, Vol. 3
Monthly legal insights on the trends impacting the retail, hospitality, and the food & beverage industries.
WEBINAR-Our Working Theory: Creating a Respectful Workplace is the Antidote to Sexual Harassment in the Workplace
Sexual Harassment remains a persistent problem in the workplace despite regulation, mandatory training, and national attention, such as the #MeToo Movement.