November 2018 Government Affairs Update

Midterm Elections Split Control of House, Senate

The Republican U.S. Senate majority grew to 53-47, while Democrats picked up 40 seats to gain a 235-200 advantage in the U.S. House of Representatives. That could change before the 116th Congress convenes in January 2019, as the North Carolina State Board of Elections continues looking into an odd trend in mail-in ballots in NC-9, where the Republican candidate held a 905-vote margin as of Nov. 30, 2018.

Overall, Democratic House candidates received a record of nearly 9 million more votes than their Republican challengers. Democratic voters across the nation also cast more ballots for Democrats than Republicans running for senate seats and governorships.

Democrats last held the majority in the U.S. House during the 111th Congress (2009-2010).

A Partial Federal Government Shutdown Looms

Seven 2019 appropriation bills remain unpassed. Under the most-recent continuing resolution that was passed in September, Congress faces a December 21 deadline for sending them to the White House for signatures. Complicating the budgeting process, the president has threatened to veto any spending package that does not include at least $5 billion for his promised wall along the U.S.-Mexico border.

Other issues that may be considered before the 115th Congress adjourns include criminal justice reform and a reauthorization of the farm bill. Congressional leaders are looking to wrap up all work by the middle of-December.

Expect Action in the House, Delay in the Senate

Expanding access to health care, guaranteeing paid family leave and increasing the federal minimum wage will be priorities for House Democrats come January. Regaining control of the legislative calendar and all key committees will also allow Democrats in the lower chamber to push for passage of infrastructure bills, updates to voting rights legislation and the DREAM Act, which would provide legal protections and a potential path to citizenship for young immigrants who were brought to the United States as children.

House Democrats can also be counted on to demand greater oversight into a number of alleged scandals involving Cabinet officials and White House personnel. Of course, with Republicans holding the Senate, any legislative or investigatory actions taken by the House could be blocked.

Privately Owned Volunteer Fire Departments Are Not Government Agencies for FLSA Purposes

The Wage and Hour Division of the U.S. Department of Labor on Nov. 8, 2018, issued an opinion letter advising that nonprofit, privately owned fire departments are not public agencies entitled to the partial overtime exemption provided in Section 7(k) of the Fair Labor Standards Act. This determination was based on the reality that such fire departments operate as independent contractors available to work for any client, purchase most of their own equipment and elect their boards of directors independently. Simply receiving public funds from state and local governments to provide fire protection services does not make them agencies even if a local government does things like review and audit a department’s financials and budgets, make suggestions concerning funding or appoint nonvoting board members.

In short, the Wage and Hour Division concluded that privately owned fire departments were not directly responsible to public officials or to the general public and exercised independent judgment and discretion over their operations. A copy of this and other recent opinions regarding FLSA rules can be found at https://www.dol.gov/whd/opinion/search/fullsearch.htm.

Even Small government Employers Must Comply With the ADEA

The U.S. Supreme Court ruled in Mt. Lemmon Fire District v. Guido that the Age Discrimination in Employment Act (ADEA) applies to state and local government employers with fewer than 20 employees. IPMA-HR joined an amicus brief filed by the State and Local Legal Center (SLLC) arguing that it should not apply.

The lead plaintiff in the case, John Guido, was 46 when he and then-54-year-old co-plaintiff Dennis Rankin were laid off by the Mount Lemmon Fire District. Officials claimed the personnel decision was made strictly for budgetary reasons. Guido and Rankin argued that since they were the oldest of the district’s 11 employees, the adverse employment action constituted age discrimination. The question before the Court was whether the fire district had to comply with the ADEA’s requirements regarding treating employees older than 40 as members of a protected class.

The law defines an employer as a “person engaged in an industry affecting commerce who has 20 or more employees.” The ADEA further states “the term [employer] also means … a State or political subdivision of a State.” In their unanimous opinion written by Justice Ruth Bader Ginsburg, the justices held that the phrase “also means” adds a new category to the definition of employer that contains no size requirement. As a political subdivision of a larger government entity, the fire district gets added to the employer that is clearly covered by the ADEA.

For additional information, please contact IPMA-HR Executive Director Neil Reichenberg at nreichenberg@ipma-hr.org.