Beltway Buzz - August 2022

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Senate Scrambles Ahead of Summer Escape. While members of the U.S. House of Representatives returned home for the August congressional recess, the U.S. Senate remained in Washington, D.C., this week to wrap up some legislative business before taking a break. This week, the Senate passed legislation providing assistance to veterans exposed to toxic substances, and it also ratified North Atlantic Treaty Organization (NATO) membership for Finland and Sweden. Additionally, Democratic leaders huddled to hammer out final details of the Inflation Reduction Act of 2022 (IRA), the $739 billion reconciliation package that addresses tax reform, climate change, and healthcare costs. Way back when, the IRA was known as the Build Back Better Act (a measure that never passed the Senate), and it was the legislative vehicle for a number of proposals, including plans to enact a federal paid leave program and increase penalties for violations of federal labor laws. While those provisions are not in the IRA, the bill does include Davis-Bacon Act-like prevailing wage requirements tied to tax credits for certain energy-related construction projects. The Senate is expected to vote on the legislation this weekend.

HHS Proposes Nondiscrimination Rule. On August 4, 2022, the U.S. Department of Health and Human Services’ (HHS) Centers for Medicare & Medicaid Services and Office for Civil Rights issued a notice of proposed rulemaking—entitled “Nondiscrimination in Health Programs and Activities”—to amend the implementing regulation for section 1557 of the Affordable Care Act (ACA) regarding nondiscrimination in the delivery of healthcare services. The proposed rule would largely revert to a 2016 regulation that was subsequently revised in 2020. (Both the 2016 and 2020 iterations have been the subject of multiple legal challenges.) According to an HHS fact sheet, and consistent with the Supreme Court of the United States’ decision in Bostock v. Clayton County, Georgia, “[t]he proposed rule codifies protections against discrimination on the basis of sex as including discrimination on the basis of sexual orientation and gender identity.” Comments are due on or before October 3, 2022.

Senate Committee Releases Spending Targets for Labor and Employment Agencies. Late last week, the U.S. Senate Committee on Appropriations released its fiscal year (FY) 2023 bill for Labor, Health and Human Services, Education, and Related Agencies. The bill contains the following funding levels:

  • Occupational Safety and Health Administration (OSHA)—$680 million, an increase of $68 million or 11 percent.
  • Wage and Hour Division (WHD)—$288 million, an increase of $37 million or 14.8 percent.
  • Employee Benefits Security Administration (EBSA)—$218 million, an increase of $32 million or 17.4 percent.
  • Office of Federal Contract Compliance Programs (OFCCP)—$120,500,000, an increase of slightly more than $12 million. The accompanying explanatory statement notes, “The Committee is particularly supportive of OFCCP efforts and plans to advance pay equity where significant gender pay inequity persists, leaving full-time working women paid approximately 83 cents of every dollar paid to men, with even larger gaps for working women of color.”
  • National Labor Relations Board (NLRB)—$319 million, an increase of $45 million or 16.4 percent. The accompanying explanatory statement notes, “The recommended increase in funding will allow the Agency to rebuild its field staffing level after years of decline, and consistent with prior directives of this Committee.”

Unlike its companion bill in the U.S. House of Representatives, the Senate funding bill does not contain language requiring the NLRB to develop a means for electronic or remote voting for union representation elections. With current federal government funding set to expire on September 30, 2022, the U.S. Congress is expected to turn its attention to appropriations upon returning to Washington, D.C., in early September.

EEOC: New SEP on the Way? The U.S. Equal Employment Opportunity Commission (EEOC) announced this week that on August 22, 2022, in Buffalo, New York, it will hold a listening session titled, “Advancing Racial and Economic Justice in the Workplace.” The session is the first of three meetings the EEOC will hold “to receive public input regarding priorities and activities that should be included in its Strategic Enforcement Plan [SEP] for the next five years.” After the conclusion of the final listening sessions, both in Washington, D.C. (on August 30, 2022, and September 12, 2022), the Commission “will consider the feedback from these sessions and any written input to develop a proposed SEP that will be approved by a vote of the full Commission.” The development of a new SEP will present a significant opportunity for stakeholders to comment on the EEOC’s enforcement priorities. The last SEP was adopted in the fall of 2016.

A Presidential First. On July 31, 1875, former president of the United States Andrew Johnson died of a stroke at the age of sixty-six years old. Johnson was, of course, famous for assuming the presidency upon the assassination of Abraham Lincoln, as well as for his post–Civil War impeachment and subsequent acquittal. (The Buzz chronicled Johnson’s impeachment a few months ago.) But Johnson had an extensive political career both before and after his time in the White House. Johnson served as mayor of Greeneville, Tennessee (1834–1835), as a member of the U.S. House of Representatives from Tennessee’s First District (1843–1853), as governor of Tennessee (1853–1857), as U.S. senator from Tennessee (1857–1862), as military governor of Tennessee (1862–1865), and as vice president of the United States during President Lincoln’s brief second term. After finishing his term as president, Johnson returned to Tennessee, where after a few years, he accomplished a political achievement that has never been matched: he was elected to the U.S. Senate (in 1875), making him the only former president to subsequently serve in the Senate.

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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