Weekly News from Congress and Regulatory Agencies July 8, 2022

Congress is heating up.

Members of the US Congress were away this week for their Independence Day recess, but are expected to return during the week beginning July 11, 2022, when they begin a busy three-week legislative period leading up to the Independence Day recess. August (although the schedule can always change). In July, in addition to settling differences between U.S. House of Representatives and Senate bills on competitiveness with China, members will debate a revamped economic package pushed by Democrats. Readers may recall the Build Back Better bill that the House passed in late 2021 and then stalled in the Senate. This bill contained federal paid vacation provisions as well as increased penalties for violations of federal labor laws. The renewed talks will focus on a slimmed-down proposal from the Build Back Better Bill and focus on climate change, tax reform and Medicare drug prices.

FLSA Independent Contractor Proposal Advances.

On July 5, 2022, the Office of Information and Regulatory Affairs received from the U.S. Department of Labor’s (DOL) Wage and Hour Division a proposed draft rule titled “Classification of Employees or Independent Contractors Under fair labor standards law. As the buzz previously discussed, a federal court recently reinstated the DOL’s Trump-era independent contractor rule because the current DOL failed to follow proper procedures when it struck down the rule in 2021. At this point , it’s unclear whether the pending DOL proposal will simply try again to abandon the Trump-era rule in an administratively proper manner or seek to install a new test for independent contractor status.

A spending bill would facilitate electronic union elections.

On June 30, 2022, the House Appropriations Committee approved the Labor, Health and Human Services, Education, and Related Agencies Funding Bill for Fiscal Year 2023, sending the measure to the floor of the House. The bill is one of twelve annual spending bills that are supposed to be signed into law each year by Oct. 1 to fund the federal government for the upcoming fiscal year. In practice, these bills are often grouped into larger omnibus or “minibus” expense sets. The authorized amounts for the DOL and the National Labor Relations Board (NLRB) are as follows (agencies such as the U.S. Equal Employment Opportunity Commission and the U.S. Citizenship and Immigration Services are covered by other bills):

  • $313 million for the wage and hour division, an increase of $62 million from the level adopted for fiscal year 2022
  • $712 million for the Occupational Safety and Health Administration, an increase of $100 million from the level adopted for fiscal year 2022
  • $147 million for the Office of Federal Contract Compliance Programs, an increase of $39 million from the level enacted for fiscal year 2022
  • $319 million for the NLRB, an increase of $45 million from the current level. Importantly, the bill provides that within this amount, “not less than [sic] $1,000,000 will be used to develop a system and procedures to conduct union representation elections electronically”

Of course, there’s a long way to go before the bill ends up in a final spending package that can be passed by Congress this fall. But congressional Democrats could push to enact the legislation — especially given the NLRB’s electronic voting language — before the November 2022 election. buzz will keep readers informed throughout the process.

PBGC Finalizes Special Financial Assistance Regs.

On July 8, 2022, the Pension Benefit Guaranty Corporation (PBGC) released its Final Rule for Implementing Special Financial Assistance (SFA) for Multiemployer Pension Plan provisions of the American Rescue Plan Act of 2021 Released almost exactly one year after the PBGC issued draft final rules on the same subject, the final rules make changes in response to comments received from the public. These changes include “changes to the method of calculating EFA, permitted investments for EFA funds (the EFA received and any related income), the application of conditions on a plan that merges with a plan that receives EFA, and the withdrawal liability requirements that apply to a plan that receives SFA. The comments, which will only be considered if they address the “condition requiring progressive recognition of special financial assistance in determining a plan’s withdrawal liability,” must be filed no later than August 8. 2022.

Procrastination continues.

Here’s just a follow-up to the comment above about the difficulty of the appropriations process for Congress. Since 1977, when the modern federal government’s supply process began, Congress has passed all supply bills on time (i.e., by October 1 each year) only four times ( fiscal years 1977, 1989, 1995 and 1997). This means that for much of the past forty-five years, Congress has had to pass continuous short-term resolutions to prevent government shutdowns. In total, Congress passed 197 continuous resolutions from 1977 to 2022.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.National Law Review, Volume XII, Number 190

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