Beltway Buzz - June 2022 #3

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Biden Administration Releases Regulatory Plans. Maybe someone in the White House just read the Buzz’s Summer Forecast, because on June 21, 2022, the Biden administration released its Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions. As the Buzz has discussed previously, the Unified Agenda provides stakeholders with notice of a presidential administration’s forthcoming regulatory plans. Set forth below is a preview of the significant labor and employment actions that the Biden administration is currently considering.

U.S. Department of Labor

Wage and Hour Division (WHD)

  • Overtime. In October 2022, the WHD is slated to issue a proposal amending the regulations “which implement the exemption of bona fide executive, administrative, and professional employees from the Fair Labor Standards Act’s [FLSA] minimum wage and overtime requirements.” Given the current post-pandemic state of the U.S. economy and its continuing supply chain and inflationary challenges, there will be significant debate surrounding this proposal, if it is released.
  • Independent contractor and joint employer issues. Somewhat interestingly, the WHD is not forecasting any regulatory activity with regard to joint employment or independent contractor relationships under the FLSA. Recall that WHD Acting Administrator Jessica Looman recently penned a blog post noting that the agency would “engage in rulemaking on determining employee or independent contractor status under the FLSA.” Perhaps the disconnect is due to the fact that the Unified Agenda often reflects information submitted by federal agencies weeks, or even months, prior to publication.

Occupational Safety and Health Administration (OSHA)

  • COVID-19. The final COVID-19 standard applicable to healthcare workplaces is scheduled to be issued in September 2022.
  • Comments are due next week (on June 30, 2022) on OSHA’s proposed amendments to its injury and illness recordkeeping regulation. A final regulation is expected to be promulgated in December 2022.
  • Heat stress and illness. There is no set date for the next step in OSHA’s nascent foray into developing a heat stress standard, except to analyze comments in response to the agency’s advance notice of proposed rulemaking.
  • Infectious diseases. A proposal addressing workplace infectious disease hazards (such as COVID-19, Severe Acute Respiratory Syndrome [SARS], tuberculosis, chickenpox, shingles, and measles) is not expected until May 2023.
  • Workplace violence. OSHA has been tinkering with developing a workplace violence prevention standard for health care and social assistance workplaces for some time. A small business review panel process is scheduled to begin in September 2022.
  • Arizona state plan. The agency continues to review comments regarding its proposal to “revoke its affirmative determination … granting final approval” to Arizona’s state occupational safety and health plan.

Office of Federal Contract Compliance Programs (OFCCP)

  • Investigations and conciliation. In April 2022, OFCCP closed the public comment docket on its proposal to amend procedures with respect to how it will conduct investigations of federal contractors. According to the latest regulatory agenda, a final rule is not expected until May 2023.
  • Subcontractor reporting. A proposal “requiring contractors to provide notice to OFCCP when they award supply and service subcontracts” has been pushed back to January 2023.
  • Religious exemption rule. A final rule that would rescind OFCCP’s 2020 rule regarding the religious exemption contained in Executive Order 11246 is scheduled to be issued in November 2022.

Office of Labor-Management Standards (OLMS)

By the end of June 2022, OLMS is scheduled to propose “a requirement for employers to disclose on the Form LM-10 [a reporting and disclosure form] whether the filer is a federal contractor and other related information.”

National Labor Relations Board

Joint employer. A rulemaking relating to the joint employer standard under the National Labor Relations Act is scheduled to be released in July 2022. Many expect the proposal to rescind or amend the Board’s 2020 rule and replace it with a broader, expansive test.

Election protection rule. In September 2022, the Board will propose revising the rule that was finalized on April 1, 2020, relating to blocking charges, voluntary recognition, and bargaining relationships in the construction industry.

U.S. Equal Employment Opportunity Commission (EEOC)

The EEOC did not submit any pending actions for the Spring 2022 Unified Agenda. This is likely due to the fact that Chair Charlotte Burrows and fellow Democratic commissioner, Vice Chair Jocelyn Samuels, remain outnumbered on the Commission by three Republican commissioners. Assuming Democrats regain the Commission majority (as is expected to occur later this summer), look for the EEOC to reenter the regulatory game this fall.

U.S. Citizenship and Immigration Services

In the fall of 2021, U.S. Citizenship and Immigration Services predicted that it would propose changes to the H-1B visa program in May 2022. That proposal, which would “revise the regulations relating to [the] ‘employer-employee relationship’” and “implement new requirements and guidelines for site visits,” among other issues, has now been pushed back to May 2023.

Remembering Title IX and Patsy Mink. June 23, 2022, marked the fiftieth anniversary of the enactment of Title IX of the Education Amendments of 1972. The historic civil rights law states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” To commemorate the passage of the law, this week, the U.S. House of Representatives unveiled a portrait of former congresswoman Patsy Mink of Hawaii. Mink, who was the first Asian-American woman elected to Congress, was the bill’s primary champion in the House. Mink was so instrumental in passing Title IX that after her death in 2002, the statute was renamed the Patsy Takemoto Mink Equal Opportunity in Education Act. In 2014, President Obama posthumously awarded Mink the Presidential Medal of Freedom.

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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