Beltway Buzz - August 2021 #2

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Historic Federal Legislation on the Move. While the Buzz was out last week, the U.S. Senate passed the Infrastructure Investment and Jobs Act by a bipartisan vote of 69 to 30. As the Buzz has discussed, the bill provides $1.2 trillion in funding to build and repair roads, bridges, waterways, ports, and other infrastructure projects. Following passage of the infrastructure bill, the Senate passed its $3.5 trillion Fiscal Year 2022 budget resolution, 50-49. As a result, the U.S. House of Representatives will return from August recess next week to take up the measure. Passage of the budget resolution in the House will trigger the complicated budget reconciliation process, by which Democrats plan to address a slew of issues from Medicare to universal prekindergarten to climate change. Reconciliation will also allow Democrats to proceed unilaterally, as it is not subject to the legislative filibuster in the Senate.

If passed by the House, the budget resolution will instruct congressional committees to draft substantive policies as part of what is expected to be a massive reconciliation bill. As outlined in a summary of the budget resolution, some of those instructions include providing funding for the following items:

  • “Paid Family and Medical Leave”
  • “Pro-worker incentives and worker support”
  • “Universal Pre-K for 3 and 4-year olds”
  • “Child care for working families”
  • “Workforce development and job training”
  • “Labor enforcement and penalties”
  • “Lawful permanent status for qualified immigrants,” such as Dreamers and recipients of Temporary Protected Status

While the advantage of reconciliation is that it avoids the Senate filibuster, only items that deal with federal budget and fiscal matters may be included in the process. (This is why an increase in the federal minimum wage was axed from the American Rescue Plan Act of 2021.) As the Buzz has mentioned, Speaker Nancy Pelosi has stated that she will not address the Infrastructure Investment and Jobs Act until the Senate drafts and passes its reconciliation bill. This process is likely to drag out into September and beyond.

NLRB GC Forecasts Policy Agenda. On August 12, 2021, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum that sets forth a road map for areas of Board law that she will seek to change. (This is a common practice at the Board for newly minted general counsel.) The memo tees up issues that General Counsel Abruzzo will likely try to put before the Board when it gains a Democratic majority upon the expiration of Republican member William Emanuel’s term on August 27, 2021. Thus, employers may want to be on the lookout for changes in Board policy on the following issues set forth in the memo:

  • Employer handbook rules, including policies relating to confidentiality during workplace investigations, and workplace civility
  • The parameters of protected concerted activity
  • Union organizing via employer email systems
  • Union access to employer property
  • Independent contractor status, as well as employee misclassification as an unfair labor practice
  • “Board jurisdiction over religious institutions”
  • Board deferral to arbitration
  • Employer remittance of employees’ union dues payments following the expiration of collective bargaining agreements
  • Reducing union financial transparency with regard to compulsory dues paid by union nonmembers
  • Employer withdrawal of union recognition
  • Expansion of Weingarten rights (allowing unionized employees to be accompanied by union representatives to employer investigatory meetings that may result in discipline) to nonunion settings and other types of meetings or discussions

Many of these issue areas undoubtedly sound familiar to Board watchers. Indeed, the Board is sometimes criticized for its policy oscillation, and this memo signifies a likely continuation of that practice.

OSHA COVID-19 Update. Comments on the Occupational Safety and Health Administration’s (OSHA) COVID-19 Emergency Temporary Standard (ETS) are due today, August 20, 2021. Generally speaking, members of the business community are expected to express concerns over the closed-door process associated with the drafting of the ETS, as well as concerns as to whether OSHA has met the necessary statutory requirements for the issuance of such a standard. Labor unions and other worker advocacy groups are likely to encourage OSHA to expand the ETS to other industries.

EEO-1 Deadline Extended. The U.S. Equal Employment Opportunity Commission (EEOC) has again extended the date by which covered employers must file their 2019 and 2020 EEO-1 Component 1 reports. Employers may now have a more relaxing weekend, because the deadline has been extended from August 23, 2021, to October 25, 2021. But employers may not want to relax too much, because the EEOC states the following with its own emphasis: “Please note that this new deadline is the FINAL DEADLINE and all eligible filers MUST submit data by this date. No additional changes to the filing deadline will be made.”

AFL-CIO Chooses New President. On August 20, 2021, the AFL-CIO chose Acting President and Secretary-Treasurer Elizabeth H. Shuler to succeed Richard Trumka as president of the labor organization. Trumka passed away unexpectedly on August 5, 2021. Shuler will serve out the remainder of Trumka’s term, which runs through June 2022. Shuler is the first female president of the AFL-CIO.

Record of Reconciliation. The reconciliation process in Congress that has been the talk of the town in Washington, D.C., over the last eight months is a relatively new legislative tool. Created by the Congressional Budget Act of 1974 (which also established the Congressional Budget Office), the reconciliation process empowers Congress to “reconcile” existing spending, revenue, and debt-limit laws with current fiscal priorities. President Jimmy Carter signed the first reconciliation measure into law in 1980. Since 1980, Congress has sent 26 reconciliation bills to the White House, and 22 of those measures have been enacted into law. Because reconciliation bills cannot be filibustered in the Senate, the reconciliation process has been favored by both Democrats and Republicans as an expedited means of enacting their policy preferences. For example, Democrats used reconciliation to pass the American Rescue Plan Act of 2021, while Republicans used the process to pass the Tax Cuts and Jobs Act in 2017. But arguably the most famous example of the reconciliation process—at least for those interested in employment law and policy—is the Consolidated Omnibus Budget Reconciliation Act of 1985 (it became law in 1986), more popularly known as COBRA. Among other provisions, COBRA allows eligible employees to continue their healthcare coverage for limited periods, under certain circumstances, such as separations from employment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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