Latest News

Five Highlights Surrounding New Rules for Hydraulic Fracturing on Federal Lands

WLF Legal Pulse - Thu, 03/26/2015 - 9:00am
Featured Expert Column – Environmental Law and Policy by Samuel B. Boxerman, Sidley Austin LLP, with Katharine Newman, Sidley Austin LLP On March 20, 2015, the Department of the Interior’s Bureau of Land Management (BLM) released a final rule regulating hydraulic fracturing on federal land managed by BLM and the U.S. Forest Service, as well […]
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Supreme Court’s “Omnicare” Decision Follows Middle Path Advocated by Lane Powell and WLF

WLF Legal Pulse - Wed, 03/25/2015 - 4:53pm
Guest Commentary By Douglas W. Greene and Claire Loebs Davis, Shareholders with Lane Powell PC in Seattle, Washington. They co-authored WLF’s amicus brief pro bono in Omnicare. In the opinion issued on March 24 in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund (“Omnicare”), the Supreme Court rejected the two extremes advocated by […]
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The Supreme Court Should Not Abandon “Stare Decisis” in “Kimble v. Marvel Enterprises” Case Given Reliance Interest

WLF Legal Pulse - Wed, 03/25/2015 - 11:59am
The Supreme Court’s 1964 decision in Brulotte v. Thys Co. has been among the Court’s more heavily criticized patent law decisions. A number of academics and appeals court judges have complained that Brulotte, which establishes a rule governing construction of patent licensing agreements, is based on a misunderstanding of the economic considerations underlying such agreements. […]
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Supreme Court Observations: Interpreting “Perez v. Mortgage Bankers Assoc.”

WLF Legal Pulse - Tue, 03/24/2015 - 1:07pm
In its 1997 decision, Paralyzed Veterans of Am. v. Arena, the U.S. Court of Appeals for the D.C. Circuit created an important bulwark against federal administrative agency evasion of notice-and-comment rulemaking. Under the “Paralyzed Veterans” doctrine, an agency had to comply with formal (and time-consuming) administrative procedures even when it claimed to be doing nothing […]
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Walberg Statement: Hearing on H.R. 548, "Certainty in Enforcement Act of 2015"; H.R. 549, "Litigation Oversight Act of 2015"; H.R. 550, "EEOC Transparency and Accountability Act"; and H.R. 1189, "Preserving Employee Wellness Programs Act"

Education & the Workforce Committee - Tue, 03/24/2015 - 12:00am

Today, the subcommittee will examine a number of legislative proposals intended to provide greater transparency and accountability to the Equal Employment Opportunity Commission. I’d like to thank our witnesses for joining us. We have a distinguished panel to help us look at a number of complex and important issues.

All workers deserve strong protections against employment discrimination. Toward that end, there continues to be support for federal laws such as the Americans with Disabilities Act, the Civil Rights Act, the Age Discrimination in Employment Act, and others. There is no doubt that every member of the committee expects the fair and vigorous enforcement of these laws in our nation’s workplaces, and that is precisely why we are here today.

The Equal Employment Opportunity Commission plays a vital role ensuring America’s workers are free to pursue employment without fear of discrimination based on their race, gender, disability, or religion. We need this agency to do its job effectively so that every American has a shot to succeed based on merit and hard work. Unfortunately, the enforcement and regulatory approach adopted by EEOC in recent years raises serious doubts about whether our nation’s best interests are being served.

For example, the commission has implemented controversial guidance on the use of criminal background checks that will make it more difficult for employers to protect their employees and customers. At a hearing held last Congress, the subcommittee received testimony from Ms. Lucia Bone, whose sister, Sue Weaver, was murdered by a man who months earlier had cleaned the air ducts in her home. A simple criminal background check might have saved this innocent woman’s life.

State and local policies requiring criminal background checks are intended to protect Americans who come in contact with workers in vulnerable situations, such as at home and in the classroom. As a result of EEOC’s misguided policy, more Americans will be put in

harm’s way, including women and children. The EEOC should scrap this misguided policy completely, but if it won’t, then Congress should take steps to rein it in and help provide families greater peace of mind the next time they invite a stranger into their home or child’s classroom.

Furthermore, EEOC has challenged employee wellness programs. Employers develop these innovative programs in order to improve the health of employees and their families, increase productivity, and reduce health care costs. Yet litigation pursued by the commission is actually discouraging employers from implementing these programs, even though Congress on a bipartisan basis has expressed its clear support for employee wellness programs.

Lastly, EEOC is spending more time and resources pursuing systemic or “class action” investigations, often without any allegation of wrongdoing. The commission has also been sanctioned in recent years for pursuing claims that are frivolous and without merit. This is how one federal circuit court described an EEOC enforcement action:

“EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.” 

Meanwhile, a backlog of discrimination claims filed by individual workers continues to plague the commission. This is no way to run an agency with a mission as important as the EEOC’s and we must demand better. To help workers succeed in the workplace without fear of discrimination, Congress has a responsibility to hold the commission accountable for its regulatory and enforcement policies.

We will examine today a number of legislative proposals to help us do just that. Together, these proposals will instill greater transparency and accountability in EEOC, improve its enforcement activities, and help more workers and employers enjoy the benefits of employee wellness programs. I look forward to discussing in greater detail with our witnesses the positive reforms in these bills and hope they will receive strong, bipartisan support.  

 

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TOMORROW: Subcommittee Hearing on Bills to Provide Greater EEOC Transparency, Accountability

Education & the Workforce Committee - Mon, 03/23/2015 - 1:00pm
On Tuesday, March 24 at 10:00 a.m., the Subcommittee on Workforce Protections, chaired by Rep. Tim Walberg (R-MI), will hold a legislative hearing on the Certainty in Enforcement Act of 2015 (H.R. 548), the Litigation Oversight Act of 2015 (H.R. 549), the EEOC Transparency and Accountability Act (H.R. 550), and the Preserving Employee Wellness Programs Act (H.R. 1189).The hearing will take place in room 2175 of the Rayburn House Office Building.
  • The Certainty in Enforcement Act of 2015, introduced by Chairman Walberg, provides a safe harbor to employers complying with a federal or state law mandating they perform criminal background checks before hiring for certain jobs.
                       
  • The Litigation Oversight Act of 2015, introduced by Chairman Walberg, requires EEOC commissioners to approve or disapprove, by majority vote, EEOC-initiated litigation involving multiple plaintiffs or an allegation of systemic discrimination. It also gives individual commissioners the power to require the commission, by majority vote, to approve or disapprove any litigation.
                         
  • The EEOC Transparency and Accountability Act, introduced by Chairman Walberg, requires – among other provisions – the EEOC to post on its website and in its annual report any case in which EEOC was required to pay fees or costs, where a sanction was imposed against it by a court, and whether the cases were authorized by the commission or brought solely on the general counsel’s authority.
                                   
  • The Preserving Employee Wellness Programs Act, introduced by Chairman John Kline (R-MN), clarifies that if an employer-sponsored wellness program’s financial incentives comply with the Patient Protection and Affordable Care Act and its regulations, then the program is also in compliance with the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

Tuesday’s hearing will provide members the opportunity to discuss the legislation and examine efforts to strengthen EEOC enforcement through enhanced transparency and accountability.

To learn more about the hearing, visit http://edworkforce.house.gov/hearings

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FDA’s Next Gift to the Litigation Industry: A Veritable Ban on Partially Hydrogenated Oils?

WLF Legal Pulse - Fri, 03/20/2015 - 12:00pm
In a recent post, we lampooned the “high trans fat intake consumer” the Food and Drug Administration (FDA) invented to advance its de facto ban of partially hydrogenated oils (PHOs) as being a cross between Augustus Gloop and Homer Simpson. The ramifications of such a PHO ban for many processed food makers and their customers, however, are […]
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ICYMI: Press Reports Highlight Legislative Action to Block Ambush Election Rule

Education & the Workforce Committee - Fri, 03/20/2015 - 12:00am

Congress recently took action to block the administration’s radical ambush election rule, which undercuts employees’ ability to make informed decisions in union elections while jeopardizing the privacy of workers and their families. Press reports highlight the ambush rule’s unprecedented changes and Republican efforts to stop it:

[The ambush election rule] represents one of the biggest procedural changes in decades to the federal union-organizing process. –  Wall Street Journal

[The] rule, which was finalized in December, shortens the length of time in which a labor union certification election is held from the current median of 38 days to as little as 11 days. – The Daily Caller

“The ambush election rule the NLRB finalized last year will deny workers the opportunity to gather all the information they need before deciding whether to join a union,” [House Speaker] Boehner said. “What’s worse, the rule will make all of their personal information — addresses, work schedules, email, phone numbers — available to union bosses without their consent, putting them at risk for harassment and identity theft.” – Washington Times

"Joining a union is a big choice," said Majority Leader Kevin McCarthy (R-Bakersfield) on the House floor Thursday. "But to make an informed decision, workers need time to decide what's best for them and their family, and they shouldn't be pressured or rushed." – Los Angeles Times

 “This is like March Madness,” Rep. Phil Roe (R-Tenn.), one of the sponsors of the bill, told The Hill. “We expect referees to be fair in the games we play, but the NLRB is not fair." – The Hill

The U.S. Chamber of Commerce … said the rules would "stack the deck against employers" and "virtually eliminate employers' opportunities to communicate their views, stifling a full and robust debate among employees about unionization." – Washington Post

“Congress voted to stop an unelected board of bureaucrats from trampling on the rights of America’s workers and job creators,” Rep. John Kline, chairman of the House Education and the Workforce Committee, declared after the vote. “The board’s ambush election rule will stifle employer free speech, cripple worker free choice, and jeopardize the privacy of workers and their families.” – The Daily Caller

Republicans will continue to fight for the rights of workers and their families. As Chairman Kline noted after debate, “The House and Senate have firmly rejected this radical scheme. I urge the president to put away his veto pen, and stand with workers and employers by supporting this important resolution.”

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House Votes to Block NLRB Ambush Election Rule

Education & the Workforce Committee - Thu, 03/19/2015 - 12:00pm

House Education and the Workforce Committee Chairman John Kline (R-MN) and Health, Employment, Labor, and Pension Subcommittee Chairman Phil Roe (R-TN) issued the following statements after the House passed S. J. Res. 8, a resolution that will block an ambush election rule finalized by the National Labor Relations Board (NLRB):

“Today, Congress voted to stop an unelected board of bureaucrats from trampling on the rights of America’s workers and job creators,” said Chairman Kline. “The board’s ambush election rule will stifle employer free speech, cripple worker free choice, and jeopardize the privacy of workers and their families. The House and Senate have firmly rejected this radical scheme. I urge the president to put away his veto pen, and stand with workers and employers by supporting this important resolution.”

“For far too long,” said Rep. Roe, “we’ve seen the Obama administration’s activist NLRB — which should ensure fair and transparent union elections — put the interests of labor unions before those of job creators and American workers. This latest rule is nothing more than an attempt to speed up union elections, violating the rights of workers to make an informed decision and employers to communicate openly with their employees during a union organizing campaign. As I’ve said before, this isn’t about whether you are pro or anti-union — the purpose of this resolution is to stop the NLRB from moving forward with policies that will effectively cripple the rights of workers.”

BACKGROUND: In December 2014, the National Labor Relations Board finalized new rules that significantly alter union elections. As a result of the board’s sweeping changes to policies that have been in place for decades, the right of employers to speak to employees will be stifled, the right of workers to make informed decision in union elections will be undermined, and the privacy of workers and their families will be compromised. In response, leaders in the House and Senate introduced a resolution (H. J. Res. 29/S. J. Res. 8) under the Congressional Review Act to block the board’s ambush election rule. The resolution will:

  • Stop the NLRB from rewriting union election policies that have served workers, employers, and unions well for decades;
                          
  • Ensure employers can continue to communicate with their employees before they cast their ballots;
                 
  • Preserve the right of workers to make informed decisions about whether to join a union; and
                                            
  • Safeguard the privacy rights of workers and their families.

The House passed the resolution by a vote of 232 to 186. Following today’s action by the House and earlier action by the Senate, the resolution will now go to the president. To learn more about S. J. Res 8/H. J. Res. 29, click here.

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Kline Statement on Resolution Blocking Ambush Election Rule

Education & the Workforce Committee - Thu, 03/19/2015 - 12:00am

In just a few short weeks, a regulatory scheme that many Americans never heard of will become a reality in almost every private workplace across the country.

Today, workers and employers rely on a fair process for union elections. Under the current process, employers have time to raise concerns, and more importantly, time to speak with their employees about union representation. Under the current system, workers have an opportunity to gather the information they need to make the best decision for their families.

But unless Congress acts, that will all change. Under the guise of streamlining union elections, the National Labor Relations Board is imposing draconian changes that will undermine the rights workers, employers, and unions have long enjoyed.

The board’s rule arbitrarily limits the amount of time employers have to legally prepare for the election, and it denies workers a reasonable opportunity to make informed decisions about joining a union. The rule also delays answers to important questions – including voter eligibility – until after the election, which means the integrity of the election results will be compromised before a single ballot is cast.

To add insult to injury, the board’s rule will also force employers to provide union organizers with their employees’ personal information, including email addresses, phone numbers, work schedules, and home addresses. Instead of advancing a plan to help stop union intimidation and coercion, the board is actually making it easier for labor bosses to harass employees and their families. 

Are there times when delays occur under the current system? Of course, but delay is the exception, not the rule. In fact, right now the median time between the filing of an election petition and the election is 38 days. Yet under the board’s new rule, a union election could take place in as little as 11 days. Eleven days. 
 
This is a radical rewrite of labor policies that have served our nation’s best interests for decades. Unfortunately, this is what we’ve come to expect from the National Labor Relations Board.

Let’s not forget, this is the same federal agency that tried dictating where a private employer had to run its business. This is the same agency restricting workers’ right to secret ballot election. This is the same agency ignoring the law by asserting its jurisdiction over religious institutions. This is the same agency tying employers in union red tape and empowering labor leaders to gerrymander our nation’s workplaces.

This is a federal agency that is simply out of control, and it is our responsibility to do something about it. This resolution, which I am proud to sponsor along with Senator Lamar Alexander, invokes Congress’s authority under the Congressional Review Act to block the NLRB’s ambush election rule and anything substantially like it.

If the board or my Democrat colleagues want to pursue responsible reforms to improve the union election process, then I stand ready to work together on that effort.

But if you believe employers should be free to speak to their employees during a union organizing campaign, then support this resolution.

If you believe workers should be free to make an informed decision about whether to join a union, then support this resolution.

If you believe we should protect rather than threaten employee privacy, then support this resolution.

Finally, if you believe workers, employers, and union leaders deserve a fair election process, then reject the board’s ambush election rule by supporting this resolution.

I encourage my colleagues to stand with America’s workers and job creators by voting “yes” on S. J. Res. 8.

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Update: Illinois Supreme Court Rejects Plaintiffs’ Lawyer’s Request to Remove Justice from $11 Billion Case

WLF Legal Pulse - Wed, 03/18/2015 - 2:39pm
On March 4 in “By Treating Recusal Motions as a Game, Lawyers are Eroding Public Confidence in our Courts,” Washington Legal Foundation’s Chief Counsel Rich Samp wrote about the corrosive effect of plaintiffs’ lawyers’ demands that unfriendly judges be recused from hearing their cases. Much of the commentary centered around the multiple motions plaintiffs’ lawyers in […]
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Kline Statement: Hearing on "Reviewing the President’s Fiscal Year 2016 Budget Proposal for the Department of Labor"

Education & the Workforce Committee - Wed, 03/18/2015 - 12:00am

The American people have been through a lot since the recession began more than seven years ago. Millions of jobs destroyed. Household incomes plummeted. Hard-earned savings wiped out. Hopes and dreams shattered. We all welcome the progress seen in recent months, but make no mistake, we still have a long way to go before every American is able to get back on a path to a lifetime of success.

Right now, roughly 15 million workers are in desperate need of full-time jobs, and that does not include the millions of individuals so discouraged by meager job prospects that they have simply dropped out of the workforce. Meanwhile, working families face high health care costs and stagnant wages, and they are struggling to send their kids to college and plan for retirement.

As policymakers, we have an obligation to these men and women to do better. They are not willing to accept a new normal of anemic growth and flat incomes. Neither should we, yet that is precisely what the president’s budget would force us to do. As is often said, a budget reflects priorities, and it is clear the president’s priorities continue to be more spending, more taxes, and more debt.

The facts speak for themselves. The president’s budget includes $547 billion in new spending and a $1.8 trillion tax increase. Despite taking more money from hard-working Americans, the president’s budget never balances. In fact, over the next 10 years, it would add $6.7 trillion to the national debt. This is not a roadmap leading to a stronger middle-class, but a blueprint for more government at the expense of the middle-class.

This flawed approach is reflected in the president’s budget for the Department of Labor. The administration is requesting an 11 percent increase in discretionary spending for the department and an astounding $41.5 billion in new mandatory spending. Will these additional taxpayer dollars be spent reducing regulatory burdens, streamlining the bureaucracy, and encouraging better enforcement of federal laws? Not likely.

Instead, the new money will be spent imposing more rules on more Americans, including workers employed by federal contractors, the elderly and those with disabilities who rely on in-home companion care, and men and women who need help saving for retirement. It will also be spent creating new programs and layers of bureaucracy.

For example, we recently passed bipartisan legislation streamlining the workforce investment system, and already the president is demanding five new workforce development programs. Congress made it easier for job seekers to acquire new skills and get back to work, yet the president is determined to make a maze of programs more complex and confusing.

The president’s budget is one of misplaced priorities and missed opportunities. We can invest in policies and programs that will make a real difference in the lives of countless Americans, without growing the size, cost, and reach of the federal government. Middle-class families are being squeezed, and the last thing we should do is double-down on failed policies.

We can do better and we know how to do better. Last year, Republicans and Democrats came together to enact meaningful job training legislation that will put Americans back to work, and we passed important reforms to strengthen the financial security of workers and retirees in the multiemployer pension system. Secretary Perez, thank you for your support as Congress worked on these bipartisan efforts.

It is time to find other areas of agreement, like modernizing an outdated multiemployer pension system, simplifying the regulations surrounding federal wage and hour law, and opening new markets for American-made goods. Let’s ensure the people’s priorities are our priorities by rejecting the president’s budget and embracing pro-growth reforms that help every American enjoy a lifetime of opportunity and success.

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Witnesses Urge Congress to Advance Bold Higher Education Reforms

Education & the Workforce Committee - Tue, 03/17/2015 - 12:00am

The Subcommittee on Higher Education and Workforce Training, chaired by Rep. Virginia Foxx (R-NC), today held a hearing to learn how Congress can strengthen America’s higher education system. Witnesses and members discussed reforms the will help ensure more students have the opportunity to complete an advanced, quality education without absorbing unmanageable debt.

“Too many Americans struggle to realize the dream of higher education,” said Chairwoman Virginia Foxx (R-NC). “Our current system is unaffordable, inflexible, and outdated … The upcoming reauthorization of the Higher Education Act provides Congress an opportunity to help every individual – regardless of age, location, or background – access and complete higher education, if they choose.”

In response to feedback from students, institutions, innovators, administrators, and researchers last year, the committee established four key principles to guide the reauthorization process: empowering students and families to make informed decisions; simplifying and improving student aid; promoting innovation, access, and completion; and ensuring strong accountability while limiting the federal role.

Former Indiana Governor and Purdue University President Mitch Daniels said, “It’s my great hope that this Congress will have the courage to see the challenges and treat reauthorization of the Higher Education Act as an opportunity for reform.” He continued, “The country needs a reauthorization ... that will: reduce the costs of higher education’s regulatory burdens; simplify and improve student aid; [and] create an environment more conducive to innovation in higher education.”

Dr. Christine M. Keller, Vice President of the Association of Public & Land-grant Universities, stressed the need for “access to clear, meaningful data … to answer questions and provide essential information for higher education stakeholders – for student and families to make more informed decisions about where to attend college; for policymakers to determine allocations of public resources and evaluate institutional effectiveness; and for college leaders to facilitate innovation and successful student outcomes.”

After outlining several opportunities for simplifying federal aid, Mr. Michael J. Bennett, Associate Vice President for Financial Aid Services at St. Petersburg College, recommended “a new repayment model that will simplify and streamline the repayment process by collapsing the various existing plans into two basic plans … simplifying repayment for students would certainly decrease default rates and the taxpayers’ burden of having to shoulder the costs of defaulted loans.”

Bennett added, “These initiatives and simplification efforts must be paired with the availability of personalized, comprehensive financial education services to help students.”

Speaking of the committee’s principles for strengthening America’s higher education system, Chairwoman Foxx concluded, “we are confident – with guidance from higher education leaders such as you – these pillars will translate into meaningful federal reforms that reflect the evolving needs of students and the workforce. We welcome your policy recommendations on how we can strengthen America’s higher education system to serve students, families, workers, and taxpayers better.”

To learn more about today’s hearing, read witness testimony, or to watch an archived webcast, visit www.edworkforce.house.gov/hearings.

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***MEDIA ADVISORY*** TOMORROW: Secretary of Labor Perez to Testify at Budget Hearing

Education & the Workforce Committee - Tue, 03/17/2015 - 12:00am
On Wednesday, March 18 at 10:00 a.m., the House Education and the Workforce Committee, chaired by Rep. John Kline (R-MN), will hold a hearing entitled, “Reviewing the President’s Fiscal Year 2016 Budget Proposal for the Department of Labor.” The hearing will take place in room 2175 of the Rayburn House Office Building.

In his Fiscal Year 2016 budget proposal, President Obama requests $13.2 billion in discretionary funding for the Department of Labor. This request represents a $1.3 billion – or 11 percent – increase from the level enacted for the current year. The president’s budget also contains a $41.5 billion increase in mandatory spending. Wednesday’s hearing will provide members an opportunity to examine the president’s budget request, as well as a number of proposals on the department’s regulatory agenda, such as a pending rule redefining fiduciary and a review of regulations governing federal wage and hour law.

To learn more about the hearing, visit http://edworkforce.house.gov/hearings

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WITNESS LIST

The Honorable Thomas E. Perez
Secretary
Department of Labor
Washington, D.C.

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