July 16, 2018

Washington Wire: Court Rules on Conflict Minerals


Court Rules on Conflict Minerals  

On Tuesday, August 18, 2015, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit reaffirmed its previous ruling that the U.S. Government cannot compel publicly traded companies to self-declare that their products do not contain minerals sourced from the Democratic Republic of Congo (DRC) or surrounding countries. This ruling upholds an April 2014 Court decision that forcing companies to publicly declare they are “DRC conflict free” or “DRC Conflict Undeterminable” violates the First Amendment. While this is an important ruling affirming our coalition’s lawsuit, it does not affect the U.S. Securities and Exchange Commission’s (SEC) authority to require due diligence and reporting of tin, tungsten, tantalum, or gold (3TG). 
The legal challenges from both sides are far from complete. We expect the SEC to appeal the ruling and seek a hearing before the full Court of Appeals, likely taking several months and continuing into 2016. The fundamental issue of how and why the government compels speech is destined for the U.S. Supreme Court; which we believe will ultimately have to decide the First Amendment argument of publicly declaring oneself “conflict free.” Despite the ruling and continued victory on First Amendment grounds, downstream suppliers who have received conflict minerals requests from their customers should continue to comply and submit information as done in the past. 
On the same day as the August 18 decision, the nonpartisan U.S. Government Accountability Office (GAO) released a report showing that 67 percent of companies who filed conflict mineral reports could not determine whether their 3TG came from the covered “conflict” countries. Of the remaining third able to trace their minerals back to a source, only four percent declared the materials originated in the DRC or nearby countries.



Decision by Labor Board in Joint Employer Case Expected Any Day as GOP Board Member Set to Depart
The National Labor Relations Board is set to issue a ruling that would redefine what constitutes an “employer” in the United States. In Browning-Ferris, the NLRB is expected to rule that Browning-Ferris Industries, a Houston-based waste-disposal company, is a joint employer of workers provided to the firm by a staffing agency and therefore is responsible for any labor violations at the plant and would require the company to bargain collectively with those workers.  
The new "joint employer" standard promulgated by the board in the ruling will make it easier to hold companies liable for the labor practices of their subcontractors, franchisees, and staffing agencies – affecting thousands of companies that hire temporary workers or independent contractors, including those through a “temp” agency or janitorial service.  
It is widely believed that the decision on the case will come before the departure of Republican Board member Harry Johnson on August 27. The open seat will leave Democrats with a 3-1 majority on the NLRB, the Supreme Court ruled they only need three members to issue decisions.



Congress Moving Forward with Energy Reform
On Thursday, July 30, the Senate Energy and Natural Resources Committee approved legislation that would the first real chance of passing comprehensive energy reform since 2007. The “Energy Policy Modernization Act” is a bipartisan package developed by the Committee following numerous listening sessions, hearings and the consideration of 114 separate bills. The resulting legislation modernizes the country’s energy policies on efficiency, infrastructure, supply, accountability, and reauthorizing conservation programs and includes provisions to increase energy efficiency of manufacturing facilities as well as reducing energy costs.  
The House is also moving forward with their comprehensive energy package. On July 22, the House Energy and Commerce Subcommittee on Energy and Power unanimously approved a draft bill focusing on renewable, domestic production, and infrastructure/transmission capabilities. The committee has held seven legislative hearings and received testimony from nine government witnesses, including the Secretary of Energy, and 38 private sector organizations and experts. One Voice was actively part of this process and supplied committee staff, as well as personal offices, with information on energy consumption and spending by its member companies. All of the feedback has gone into refining this comprehensive bill into four titles – modernizing energy infrastructure, 21st century workforce, energy security and diplomacy, and energy efficiency and accountability. The full Committee is now set to consider the bill when Congress returns in two weeks and we are hopeful for a energy reform bill moving through both the House and Senate in late September or October.