Federal labor and employment law news update this week

Last week, in the first part of our two-part summer forecast on the development of labor and employment-related legislation and agencies, the buzz took a look at the US Congress and what our legislators might have in store for employers over the next six months. This week, we take a look at the federal labor and employment regulatory landscape.

Political staff

Regulatory policy in Washington, DC, is, of course, executive-driven, as politically appointed leaders set each agency’s regulatory and enforcement priorities. While the administration has generally been successful in appointing officials to key agency positions in its first 18 months since President Biden took office, some key positions remain vacant.

S. Equal Employment Opportunity Commission (EEOC)

  • On June 7, 2022, President Biden appointed Karla Ann Gilbride as General Counsel of the EEOC. Gilbride is currently co-director of the Access to Justice Project of Public Justice, a non-profit legal organization. The position of General Counsel at the Commission has been vacant since President Biden fired former General Counsel Sharon Fast Gustafson on March 5, 2021.
  • Kalpana Kotagal’s nomination to the EEOC is currently stalled at the US Senate Committee on Health, Education, Labor and Pensions (HELP). If all Senate Democrats and Sen. Bernie Sanders (I-VT), who caucus with the Democrats, support Kotagal’s nomination, it will eventually be confirmed and tip the balance of power on the Commission in favor of the Democrats.
  • Wages and Hours Division (WHD). David Weil’s nomination to serve as Administrator of the U.S. Department of Labor (DOL) Wage and Hour Division was rejected by the U.S. Senate in March 2022. As a result, Acting Administrator Jessica Looman continues to lead the WHD, as it has since. January 2021. Time will tell what impact, if any, the revocation of Weil’s appointment will have on the WHD’s regulatory and enforcement programs. The administration can be content to stay with Looman at the helm (recall that then-President Obama did not have a confirmed salary and hour administrator until his second term).
  • Employee Benefits Security Administration (EBSA). On June 8, 2022, the U.S. Senate failed to confirm President Biden’s nominee to lead the DOL Benefits Security Administration, Lisa Gomez, by a vote of 49 to 51. In a procedural move, the leader Majority leader Chuck Schumer (D-NY) changed his vote to “no” to preserve the option of bringing Gomez in for another vote in the future (Gomez has the Senate votes pending, but The Vice- President Harris was not available this week to vote in the event of a tie). EBSA continues to be led by Acting Deputy Secretary Ali Khawar.
  • Occupational Safety and Health Review Commission (OSHRC). With the withdrawal of President Biden’s nominee for the OSHRC, Susan Harthill, the agency continues to operate with just two commissioners. At this time, it is unclear whether the President will nominate another candidate.
  • Office of Information and Regulatory Affairs (OIRA). As OIRA’s acting administrator, Sharon Block served as President Biden’s de facto regulatory czar until his departure from the agency in February 2022. Since then, the position has remained vacant. If Republicans control the House of Representatives and/or the US Senate in 2023, the administration will increasingly turn to the regulatory arena to achieve its policy goals. In this case, the position of administrator of the OIRA will become even more important.

US Department of Labor

Wages and Hours Division

  • Over time. The WHD is holding listening sessions with stakeholder groups before releasing a proposal to change regulations implementing the overtime provisions of the Fair Labor Standards Act (FLSA). These sessions will continue throughout June 2022 and the proposal is expected to be released thereafter. Many WHD observers expect the agency to propose raising the base salary threshold and possibly changing the job requirement. Even if the WHD releases such a proposal by the end of this year, the ensuing debate (along with likely litigation) is expected to continue well beyond 2022.
  • Independent contractor. While the administration has appealed the federal district court’s decision reinstating the Trump-era FLSA independent contractor rule, stakeholders should expect the DOL to also release a proposed settlement on the subject. On June 3, 2022, Acting Administrator Looman wrote in a blog post that the DOL “plans to engage in developing rules for determining employee or independent contractor status under the FLSA. “. According to the blog post, the DOL will hold two stakeholder listening sessions in late June, before releasing a proposal. This means that a proposal could be released in late summer or early fall.
  • Joint employer. The DOL overturned the Trump-era FLSA joint-employer rule just under a year ago. The agency should follow up this action with its own joint employer boards. The upcoming Spring 2022 Unified Federal Regulatory and Deregulatory Action Agenda will likely provide some insight into whether the WHD will address the issue via an administrator’s interpretation (as it did in 2016) or whether it will engage in rule-making.
  • The DOL is expected to release final changes to its Davis-Bacon law enforcement regulations, along with a proposed implementation of President Biden’s executive order requiring labor agreements on federal construction projects worth $100,000. $35 million or more.

Occupational Safety and Health Administration (OSHA)

  • COVID-19[FEMALE[FEMININEWith respect to the COVID-19 vaccination or testing rule removed from OSHA, such as the buzz recently discussed, Deputy Secretary Doug Parker told Congress in a hearing that the agency has no plans to resurrect the rule. However, at that same hearing, Parker said the agency hopes to have a permanent COVID-19 standard in place for the healthcare industry by the fall of this year. OSHA is currently reviewing public comments on the health care proposal. Finally, a proposal to tackle infectious diseases (which would presumably include not only COVID-19, but also tuberculosis, chicken pox, etc.), was due to be released in April 2022 and could therefore be made public at any time.
  • Reporting of injuries and illnesses. June 30, 2022 is the deadline for the public to submit comments in response to OSHA’s proposal to essentially revert to its 2016 rule that required covered employers to electronically submit data on occupational injuries and illnesses. A final rule could be published by the end of the year.
  • OSHA is in the early stages of developing a heat illness prevention standard for indoor and outdoor workplaces. In the meantime, employers may want to be diligent about protecting their workplaces from dangerous heat.

National Labor Relations Commission

The National Labor Relations Board and its general counsel, Jennifer Abruzzo, wasted no time setting the stage for major policy reversals. In the second half of the year, the Board may issue rulings related to fractured bargaining units, independent contractor analysis, balancing workplace rules and concerted activity protected, to arbitration and to the expansion of damages available under the National Labor Relations Act. The Board will also likely engage in crafting rules to rescind or amend its current joint employer regulations. Finally, the Council can attempt to revive a long dormant doctrine that would allow for the organization of map checking.

US Equal Employment Opportunity Commission

Assuming the Democrats gain majority control of the EEOC this summer/fall, they will seek to unblock a regulatory agenda that has stalled since January 2021. of sexual relations. harassment advice, delegation of authority to the General Counsel, reporting of wage and hour data, and workplace well-being.

Federal contractor blacklist

A political concept as important as the blacklist of federal contractors deserves its own column. It also potentially transcends multiple agencies and regulatory systems. The buzz is monitoring two potential attempts to blacklist the regulations. First, the US Department of Agriculture is proposing to require federal contractors to certify that they (and their subcontractors) comply with all fifteen federal labor laws and executive orders, as well as equivalent state laws. Sounds familiar, doesn’t it? Second, the buzz followed Senator Sanders’ efforts to reinstate a government-wide federal contractor blacklist system. Any federal contractor blacklisting system will face significant legal hurdles, but will still need to be monitored.

Remembering Maude Kee. Maude Kee, West Virginia’s first female congresswoman, was born this week (June 7) in 1895. Kee launched her political career as executive secretary to her husband, John Kee, who represented the fifth congressional district of West Virginia from 1933. until his death in 1951 (as part of his duties as executive secretary, Kee authored a weekly column called “Washington Tidbits”, which was published in newspapers of West Virginia – a precursor to the buzz!). Just months after her husband’s death, Kee won a hotly contested election to regain her seat and held the seat until her retirement in 1965. During her congressional career, Kee was a champion veteran (she served on the Department of Veterans Affairs Committee) and coal miners. Upon her retirement, Kee’s son James was elected to her seat, making Kee the first female congresswoman to be directly succeeded by her son.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.National Law Review, Volume XII, Number 162

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