Beltway Buzz - January 2021 #4

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Status Check on Congress. We are more than one week into the Biden administration and the president has made progress filling out his cabinet. Antony Blinken (U.S. secretary of state), Janet Yellen (U.S. secretary of the treasury), Lloyd Austin (U.S. secretary of defense), and Avril Haines (director of national intelligence) have all been confirmed by the U.S. Senate. But aside from these confirmations in the Senate, there hasn’t been much activity in Congress. Indeed, legislators are still working on administrative issues such as committee assignments, and in the Senate, Majority Leader Charles Schumer (D-NY) and Minority Leader Mitch McConnell (R-KY) haven’t completely finalized all the details of their power-sharing agreement. This means that formal work on legislation relating to COVID-19, the economy, and immigration hasn’t started yet. With regard to President Biden’s COVID-19/economic stimulus plan, it appears that Democrats are still trying to decide whether to negotiate with Republicans or advance the bill by using the budgetary reconciliation process, which requires only 51 votes in the Senate.

Biden Issues Workplace Safety Executive Order. As expected, addressing the COVID-19 pandemic in the workplace appears to be a top priority for President Biden. Late last week, he issued an executive order instructing the secretary of labor to “consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary.” John Martin and Art Sapper have written a great article on what this means for employers.

Federal Contractors—Prepare for $15 Minimum Wage and Emergency Paid Leave? On January 22, 2021, President Biden issued an executive order directing the Office of Personnel Management to “provide a report to the President with recommendations to promote a $15/hour minimum wage for Federal employees.” On the same day, President Biden directed his administration “to start the work that would allow him to issue an Executive Order within the first 100 days that requires federal contractors to pay a $15 minimum wage and provide emergency paid leave to workers.” This executive action would build on the February 12, 2014, executive order issued by President Obama that increased the hourly minimum wage for employees of federal contractors to $10.10 per hour. That executive order, which requires annual adjustments based on the Consumer Price Index for Urban Wage Earners and Clerical Workers, has raised the current hourly minimum to $10.80.

UI Expansion? In the same January 22, 2021 directive, President Biden stated that he would be “asking the U.S. Department of Labor to consider clarifying that workers who refuse unsafe working conditions can still receive unemployment insurance [UI].”

Opinion Letters Withdrawn. This week, the U.S. Department of Labor’s (DOL) Wage and Hour Division withdrew three opinion letters interpreting the Fair Labor Standards Act (FLSA)—FLSA2021-4 (addressing tip pooling in restaurants), FLSA2021-8 (addressing whether certain distributors of a manufacturer’s food products were employees or independent contractors), and FLSA2021-9 (addressing the classification of tractor-trailer truck drivers)— that were issued in the final days of the previous administration. The Wage and Hour Division’s announcement of the withdrawal of the letters stated that they had been “issued prematurely because they [were] based on rules that [had] not gone into effect.” No word yet on whether the DOL’s opinion letter program will continue or whether it will be scrapped, as it was during the Obama administration.

EO 13950 Cleanup. Last week, President Biden revoked Executive Order (EO) 13950, which related to race and sex stereotyping. While a federal court had already prohibited the Office of Federal Contract Compliance Programs (OFCCP) from implementing certain provisions of EO 13950, this week OFCCP announced that it would undertake further housekeeping measures by rescinding answers to frequently asked questions regarding EO 13950, shutting down a complaint hotline and email address, and closing all complaints alleging noncompliance with the EO.

H-4 EAD Rule Withdrawn. On January 25, 2021, U.S. Citizenship and Immigration Services withdrew a proposal that would have rescinded work authorization permits for dependent H-4 spouses. The proposal to eliminate the H-4 employment authorization document (EAD) rule first appeared in the Fall 2017 Regulatory Agenda and never got across the finish line. The U.S. Citizenship Act of 2021 would codify work authorization for H-4 visa holders, which would provide certainty by eliminating this issue from the regulatory arena. Rosa Corriveau and Jacob Kanyusik have all the details.

Former NLRB Member Now Running Regulatory Shop. Last week, President Biden installed former National Labor Relations Board (NLRB) member and Obama-era DOL official Sharon Block as the top political appointee at the Office of Information and Regulatory Affairs (OIRA). While we wait for the president to announce a nominee for the OIRA administrator position, Block will play a significant role in implementing President Biden’s regulatory agenda in the early stages of the administration. In an article written last year, Block set forth her vision of an OIRA focused on two goals: “[r]evoking the harmful Trump-era regulations and promulgating new regulations to advance a progressive agenda.”

Majority Rules. With the Democrats technically in the majority in the U.S. Senate, Senator Schumer is now the Senate’s majority leader, while Senator McConnell is once again the minority leader. But the concepts of majority and minority leader are a relatively recent phenomenon in the history of the United States and are not included in the Constitution. Rather, the positions evolved out of both tradition and necessity. The first official elected party leader in the Senate was Senator Oscar Underwood of Alabama, who was elected as the Democrats’ minority leader in 1920. Underwood’s Republican counterpart, Senator Henry Cabot Lodge of Massachusetts, led the Republicans at that time but did not have an official title. The first official majority leader, Senator Charles Curtis (R-KS)—who later served as vice president of the United States during the term of President Herbert Hoover—was elected five years later in 1925. Senator Mike Mansfield (D-MT) holds the record for longest-tenured Senate majority leader, serving from January 3, 1961, until January 3, 1977.

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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