Antitrust Law Daily Wrap Up, FRANCHISING & DISTRIBUTION NEWS: Spending measure would block disfavored DOL, NLRB policies, (Jul 11, 2016)

By Pamela Wolf, J.D.

The Labor, Health and Human Services, and Education and Related Agencies Subcommittee of the House Appropriations Committee on Wednesday, July 13, will mark up the draft fiscal year 2017 Labor, Health and Human Services (LHHS) funding bill, which includes several provisions aimed at reining in the Department of Labor and the National Labor Relations Board, among other agencies. The International Franchise Association applauded the draft legislation—which includes funding for programs within the DOL, DHHS, the Department of Education, and other related agencies—noting that it will protect small business owners from recent controversial National Labor Relations Board rulings.

According to a House Appropriations Committee summary, the draft measure includes $161.6 billion in discretionary funding—a $569 million reduction from the fiscal year 2016 enacted level and $2.8 billion below the President’s budget request. The committee targeted funding to what it sees as proven programs with the most national benefit. The bill in addition saves taxpayer dollars by cutting funding in what the committee considers lower-priority areas, including ineffective or wasteful programs.

The measure also contains several policy provisions "to improve government oversight and to block the Administration’s unnecessary and harmful regulations that hurt economic growth," the committee said, adding that it "also defunds existing Obamacare programs and prohibits any new discretionary funding from being used to further implement Obamacare." Those provisions generally preclude the use of funding to enforce agency regulations and policies disfavored by the committee.

Labor Department. The draft spending bill would give a total of $12 billion to the Labor Department—down $138 million from the fiscal year 2016 enacted level and $765 million below the President’s budget request. The committee pointed to several provisions they say are aimed at helping U.S. businesses create jobs and grow the economy by reducing or eliminating what the committee deemed "overly burdensome government regulations," including provisions that would:

• Prohibit enforcement of the DOL’s controversial fiduciary rule (which specifically aimed to eliminate certain conflicts of interest in investment advice);

• Bar enforcement of the equally controversial FLSA overtime rule (which raises the floor below which overtime must be paid from $455 to $913 a week, or stated annually, from $23,660 to $47,476, as projected for 2016); and

• Continue provisions that provide flexibility in the H-2B program.

National Labor Relations Board. The measure would give $215 million to the NLRB—down $59 million from last year’s enacted level and $59.7 million below the President’s budget request. Several policy provisions are included that, according to the committee, would "stop the NLRB’s harmful anti-business regulations that impose additional and excessive costs on American businesses, result in job losses, and hinder economic growth." Those provisions target several labor board regulations and policies, including:

• Continuing the prohibition on use of electronic voting in union elections;

• A prohibition on implementation of the representation-case procedures regulation (the "quickie" election rule that shortens the time between the filing of a petition and the union election);

• A bar on enforcement of joint-employer standards (as announced by the Board in its Browning-Ferris Industries decision);

• A prohibition on enforcement of bargaining unit standards that conflict with the standard articulated in the Board’s 2010 majority opinion in Wheeling Island Gaming Inc. and United Food and Commercial Workers International Union, Local 237; and

• A bar on enforcement of the NLRA against Indian tribes or the entities that they own or operate on tribal lands.

The International Franchise Association, which has opposed the expansion of the joint employer standard as announced in Browning-Ferris, quickly applauded the spending measure: "Small businesses work every day to serve our communities and meet countless demands. They simply need the protection of the long-standing, successful joint employer standard to continue running their businesses and creating jobs. We applaud Chairman Cole and the committee for taking an important step toward providing a measure of regulatory certainty for small businesses across the country. Their push will help restore certainty to franchising, allowing for the continued creation of new businesses and much needed jobs."

"This is the 12th and final Appropriations bill to be considered by the Committee this year," House Appropriations Chairman Hal Rogers (R-Ky.) said. "It follows the responsible lead of the legislation before it—investing in proven, effective programs, rolling back over-regulation and overreach by the Administration that kills American jobs, and cutting spending to save hard-earned taxpayer dollars."

News: FranchisingDistribution