Beltway Buzz - March 2021 #3

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Well, Now What Do We Do? It seems like months (or, more accurately, a year) since the Buzz hasn’t had to provide an update on COVID-19 relief legislation or negotiations. Hopefully, that is good news and a positive sign that we are turning the corner on the pandemic. So what has been occupying legislators in D.C. this week? Let’s take a look:

  • The U.S. Senate has turned its attention in the near term to confirming President Joe Biden’s nominees for the federal bench and executive branch agencies. For example, on March 18, 2021, the Senate confirmed former California attorney general Xavier Becerra as secretary of health and human services. The Buzz is particularly interested in the Senate’s vote on the nomination of Boston mayor Martin Walsh to be secretary of labor. The confirmation vote is expected to take place on March 22, 2021.
  • On March 17, 2021, the Senate Committee on the Judiciary held a hearing on the Equality Act (H.R. 5/S.393), comprehensive legislation that would codify federal civil rights protections for LGBTQ individuals and prohibit discrimination based on sex, sexual orientation, and gender identity. The Equality Act passed the U.S. House of Representatives on February 25, 2021. As the Buzz previously mentioned, despite strong support from the business community, the Equality Act faces an uphill battle for passage in the Senate.
  • On March 18, 2021, the House Committee on Education and Labor held a hearing on several workplace antidiscrimination bills, including the Pregnant Workers Fairness Act (H.R. 1065), which would require covered employers to make reasonable workplace accommodations for “workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition”; the Paycheck Fairness Act (H.R. 7), which would limit employers’ defenses under the Equal Pay Act and require employers to submit employee compensation data to the federal government; and the Protecting Older Workers Against Discrimination Act, which would amend federal employment law to allow a plaintiff to establish an unlawful employment practice by showing that retaliation, age, or disability was a motivating factor in the practice, though other factors may have influenced the practice. Look for these bills to begin moving in the House shortly.
  • On the immigration front, on March 18, 2021, the House passed the American Dream and Promise Act of 2021 (H.R. 6), significant legislation that would provide a pathway to citizenship for individuals who were brought to the United States as children (known as DREAMers), as well as recipients of Temporary Protected Status. The House also approved the Farm Workforce Modernization Act of 2021 (H.R. 1603), a measure that would provide a pathway to citizenship for eligible farm workers and update the H-2A temporary agricultural worker program. The U.S. Chamber of Commerce supports both bills.

Workplace Safety Update. The Buzz had expected that the Occupational Safety and Health Administration (OSHA) would issue an emergency temporary standard (ETS) on COVID-19 prevention by March 15, 2021, the due date set forth in President Biden’s “Executive Order on Protecting Worker Health and Safety.” Well, the Ides of March have come and gone, and an ETS has not been issued. However, it has been reported that OSHA will, in fact, issue an ETS; the ETS will just arrive a little later than anticipated. In the meantime, Eric Hobbs and Phillip Russell have the scoop on OSHA’s release of a new National Emphasis Program on March 12, 2021, “to ensure that employees in high-hazard industries or work tasks are protected from the hazard of [COVID-19].”

Deputy Secretary Hearing. On March 16, 2021, the Senate Committee on Health, Education, Labor and Pensions held a hearing on the nomination of Julie Su to serve as deputy secretary of labor. Su currently serves as secretary of the California Labor and Workforce Development Agency (LWDA). During the hearing, Republican lawmakers focused on Su’s leadership of the LWDA, and, specifically, how the labor agency’s Employment Development Department handled fraudulent unemployment insurance claims. They also expressed concern that Su might exceed her role as deputy secretary and instead act as a de facto secretary of labor.

DOL Weighs in on H-1B Wage Methodology. This week, the U.S. Department of Labor’s (DOL) Employment and Training Administration announced a further delay in the effective date of the rule entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” The original regulation was finalized in the final days of the Trump administration and was set to go into effect on March 15, 2021. That effective date was postponed until May 14, 2021, by the Biden administration. This latest proposal would extend the effective date to November 14, 2022. The DOL reasons that the delay is necessary “to thoroughly consider the legal and policy issues raised in the rule, and offer the public, through the issuance of a separate Request for Information, an opportunity to provide information on the sources and methods for determining prevailing wage levels covering employment opportunities that United States (U.S.) employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H-1B, H-1B1, or E-3 nonimmigrant visas.”

New Acting GC at EEOC. President Biden appointed Gwendolyn Young Reams as the acting general counsel of the U.S. Equal Employment Opportunity Commission (EEOC). Reams replaces Sharon Fast Gustafson, who was recently removed from the general counsel position. Reams previously served for 20 years as the Commission’s associate general counsel for litigation management services.

West Point Anniversary. This week marked the 219th anniversary of the founding of the United States Military Academy at West Point. First garrisoned in 1778, West Point is the oldest continuously occupied military post in the United States. (Thankfully, Benedict Arnold’s plan to surrender West Point to British forces in 1780 during the Revolutionary War was discovered before it could be fully executed.) Following the war, President George Washington wanted to establish a military academy at West Point, but he lacked the constitutional authority to do so. While Congress had the authority to establish a military academy, many legislators at the time were concerned that such an academy would be perceived as too aristocratic. However, their minds quickly changed, and Congress soon passed the Military Peace Establishment Act, which was signed into law by President Thomas Jefferson on March 16, 1802. Among other provisions, the act established that a “corps [of engineers], when so organized, shall be stationed at West Point in the state of New York, and shall constitute a military academy.”

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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