NCISS Monthly Report from Lobbyit

In This Issue

Security Officer Screening Improvements Act

Legislation

In the month of October, Lobbyit spoke with the House and Senate appropriations committees about plans for "labor policy" riders in the eventual omnibus appropriations bill to fund government for FY 2018.

Labor Provisions in the Omnibus Appropriations Bill

As long-time readers of NCISS's monthly reports from Washington will note, we find ourselves in familiar territory for funding government as calendar year 2017 draws to a close, and funding for Fiscal Year 2018 has yet to be finished.

NCISS has been paying particular attention to FY 2018's funding cycle as the effort to attach several labor-related policy riders important to NCISS members is now in full swing.

The deadline for funding government is December 8. Despite efforts to move the below provisions in the 2018 funding bill, other legislative priorities, and the tight timeline for the end of the year, might (probably will) mean that the can gets kicked down the road again, and that a continuing resolution (CR) will be passed for some or all of FY 2018, essentially funding government at current levels, without many of the policy provisions the GOP had attempted to include.

These competing legislative priorities are tax reform (which will suck most of the air out of the proverbial room), extending the debt ceiling, the next tranche of hurricane disaster relief (Florida, Texas, Puerto Rico, U.S. Virgin Islands, etc.), and passing a Defense Authorization bill (which has been accomplished in each of the last 53 years).

Joint Employer

Upending the National Labor Relations Board's (NLRB) 2015 decision in Browning-Ferris Industries of California, Inc. is the subject not only of efforts by appropriators, but also in the form of H.R. 3441, The "Save Local Business Act," sponsored by Congressman Bradley Byrne (R-Al-1).

The NLRB upset more than thirty years of precedent by replacing the predictable and clear "direct and immediate control" standard for determining joint employer status (i.e. liability for the practices of subcontractors or franchisees, even where the corporate parent exercised little control over the remote workplace or employees) with a vague test based on "indirect" and "potential" control over workers' terms and conditions of employment.

Suddenly, a business owner who subcontracted out portions of a project, or involved other businesses in their supply chain, became liable for the labor decisions of the subcontractor or franchisee.

GOP leadership has indicated their interest in including such relief in the appropriations omnibus, but it still faces stiff opposition from Democrats in the Senate, and the GOP might not have enough votes to move the funding bill with this (and other) riders attached.

Persuader Rule

In June of this year, the Department of Labor issued a Notice of Proposed Rulemaking (NPRM), asking for public input on rescinding the persuader rule. As you may recall, the rule altered federal disclosure requirements making it more difficult for employers to access legal counsel and legally communicate with employees about the pros and cons of unionization.

While rolling back the rule is part of the Trump Administration's agenda, the regulatory process required by the Administrative Procedures Act (APA) takes around two years, minimum. Not following the APA leaves the agency and Administration open to litigation.

The feeling in Congress is that it would likely be a shorter process to overturn the rule legislatively (shorter through Congress, imagine that!). The GOP remains nominally committed to moving a repeal through Congress, though the effort is subject to the same limitations noted above (i.e. 60 votes in the Senate).

Legislation

S. 395 - GPS Act

Representative Michael T. McCaul (R-TX) introduced the One in, One out Act in the House on January 24, 2017. On February 8, 2017, the bill was referred to the Subcommittee on Regulatory Reform, Commercial and Antitrust Law. The bill currently has 13 cosponsors. There have not yet been any amendments to the bill.

This bill prohibits a federal agency from issuing a rule that imposes a cost or responsibility on a nongovernmental person or a state or local government unless: (1) such agency has repealed or revised one or more related rules in a way that reduces costs to the regulated entities, and (2) the cost of the new rule is less than or equal to the cost of the rules being repealed or revised.

H.R. 387 - Email Privacy Act

Representative Kevin Yoder (R-KS03) introduced the Email Privacy Act in the House on January 9, 2017. On February 7, 2017, the bill was received in the Senate and referred to the Committee on Judiciary. The bill currently has 138 cosponsors.

A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication that is in electronic storage with or otherwise stored, held, or maintained by that service only if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) that:

(1) is issued by a court of competent jurisdiction;

(2) may indicate the date by which the provider must make the disclosure to the governmental entity.

(3) the bill is applicable with respect to any wire or electronic communication that is stored, held, or maintained by the provider.

H.R. 923 - To Repeal the Cybersecurity Act of 2015

Representative Justin Amash (R-MI-3) introduced the To Repeal the Cybersecurity Act of 2015 on February 7, 2017. On April 25th, 2017, the bill was referred to the Subcommittee on Research and Technology. The bill currently has 5 cosponsors.

The Cybersecurity Act of 2015 (division N of Public Law 114-113) and the amendments made by such Act are repealed, and the provisions of law amended by such Act are hereby restored as if such Act had not been enacted into law.

H.R. 957 F.A.I.R. Surveillance Act of 2017

Representative Hakeem Jeffries (D-NY-8) introduced the Fourth Amendment Integrity Restoration (F.A.I.R.) Surveillance Act of 2017 on February 7, 2017. On March 9, 2017, the bill was referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. The bill currently has 2 cosponsors.

This bill specifies that an agreement between a federal and state or local law enforcement agency regarding the acquisition or use of a cell simulator device must require such state or local law enforcement agency to use the device in compliance with the federal agency's guidance and policies.

The term "cell simulator device" means a device that:

(1) simulates a cell tower to provide an electronic communication service, or

(2) functions as a cell tower to locate cellular devices or identify their unique identifiers

S. 631 Drone Aircraft Privacy and Transparency Act

Senator Edward Markey introduced the Drone Aircraft Privacy and Transparency Act in the Senate on March 3, 2017. On March 15, 2017, the bill was referred to the Committee on Commerce, Science, and Transportation. The bill currently has 0 cosponsors.

This bill amends the FAA Modernization and Reform Act of 2012 to provide guidance and limitations regarding the integration of unmanned aircraft systems into United States airspace, and for other purposes. The Secretary of Transportation shall establish procedures to ensure that the integration of unmanned aircraft systems into the national airspace system is done in compliance with the privacy principles.

A governmental entity (as defined in section 2711 of title 18, United States Code) may not use an unmanned aircraft system or request information or data collected by another person using an unmanned aircraft system for protective activities, or for law enforcement or intelligence purposes, except pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction, or as permitted under the Foreign Intelligence Surveillance Act of 1978.

H.R. 1526 - Drone Aircraft Privacy and Transparency Act of 2017

This monthy report is p rovided for NCISS by ...

...until next month!

Please contact Francie Koehler for questions or issues regarding private

investigators and Brad Duffy re the same for security professionals.

Francie Koehler - Investigations -- or -- Brad Duffy - Security

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