Beltway Buzz - July 2021 #4

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Senate Committee Examines PRO Act. On July 22, 2021, the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing entitled “The Right to Organize: Empowering American Workers in a 21st Century Economy.” The political state of play regarding the Protecting the Right to Organize (PRO) Act has not changed. Although the bill has passed the U.S. House of Representatives, three Democratic senators—Senator Mark Kelly (AZ), Senator Kyrsten Sinema (AZ), and Senator Mark Warner (VA)—have refused to cosponsor the bill, and Majority Leader Charles Schumer (D-NY) has not set the bill for a vote. That said, this week’s hearing is indicative of the continued focus (on both sides of the political aisle) on the bill. The Buzz is particularly concerned about potential efforts to shoehorn the PRO Act into other, larger pieces of legislation, such as those addressing infrastructure matters. Only time will tell if this hearing provided any legislative momentum for the bill or its provisions.

Senate Confirms NLRB GC. Also on the traditional labor front, on July 21, 2021, the U.S. Senate confirmed Jennifer Abruzzo to be general counsel of the National Labor Relations Board (NLRB). The 51–50 vote was Vice President Kamala Harris’s eighth tiebreaking vote in the Senate (and second involving Abruzzo, who earlier in the week needed the vice president’s vote to end debate on her nomination). In addition, the Senate HELP Committee advanced the nominations of Gwynne Wilcox and David Prouty to be members of the NLRB, teeing up their nominations for votes on the Senate floor. A committee vote on David Weil’s nomination to be administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division was postponed.

NLRB: Scabby Is Not Too Shabby. Rounding out the labor policy news of the week, the Board dismissed a complaint challenging a union’s display of Scabby the Rat and two stationary banners targeting a neutral employer. The issue involves ongoing tension between the National Labor Relations Act’s prohibition on secondary activity and the First Amendment’s protections of expressive activity. Joining Chair Lauren McFerran in the decision, members Marvin Kaplan and John Ring found that the conduct at issue in the case was more expressive or persuasive, rather than coercive, writing, “prohibiting an inflatable rat and stationary banners shaming a secondary employer would raise significant constitutional concerns in the eyes of the [Supreme] Court.”

Federal Contractor Minimum Wage Rule Proposed. On July 21, 2021, the DOL’s Wage and Hour Division issued proposed regulations implementing President Joe Biden’s executive order increasing the minimum wage for certain employees of federal contractors. The proposal would increase the minimum wage for workers performing work on covered federal contracts to $15 per hour beginning on January 30, 2022. Beginning in January 2023 the hourly rate would be indexed to the Consumer Price Index. The proposed rulemaking would also require covered tipped workers to be paid a minimum of $10.50 per hour beginning in 2022, then 85 percent of the adjusted wage increase in 2023, and then 100 percent of the adjusted wage beginning in 2024 and in each year thereafter. Comments on the proposal are due on or before August 23, 2021.

OSHA ETS News. July 21, 2021, was the compliance deadline for covered employers to comply with the physical barriers, ventilation, and training provisions of the Occupational Safety and Health Administration’s (OSHA) COVID-19 emergency temporary standard (ETS). July 21 was also the original due date for submission of comments in response to the ETS, but this week OSHA pushed the deadline to August 20, 2021.

Federal Court Blocks DACA Program. On July 16, 2021, the U.S. District Court for the Southern District of Texas ruled that “[the U.S. Department of Homeland Security] violated the [Administrative Procedure Act] with the creation of [the Deferred Action for Childhood Arrivals (DACA) program] and its continued operation” and issued a permanent injunction enjoining DHS from approving new applications under the program. Noting that “it is not equitable for a government program that has engendered such significant reliance to terminate suddenly,” the court stayed the order with respect to current DACA beneficiaries in good standing. Such beneficiaries may therefore maintain their legal presence and work authorization while the litigation continues to unfold (i.e., subsequent rulings by the Fifth Circuit Court of Appeals or the Supreme Court of the United States).

Tie Goes to the Veep. With a 50–50 Senate, the tiebreaking votes cast by Vice President Harris this week likely will not be her last. But casting such votes isn’t just reserved for situations in which the Senate is so particularly divided. Of our 49 vice presidents, 37 of them have cast tiebreaking votes, and the act has occurred 276 times. On July 18, 1789 (232 years ago this week), our first vice president, John Adams, cast the first tiebreaking vote and went on to break Senate ties 28 more times—the second-most tiebreaking votes cast by any vice president. The record is 31 votes by John C. Calhoun, who served as vice president under presidents John Quincy Adams and Andrew Jackson. President Biden, while serving as vice president, holds the record for most days in office (2,922) without casting a single tiebreaking vote 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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