Beltway Buzz - March 2021

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Biz Groups Are a “No” on PRO. As the Buzz mentioned last week, the U.S. House of Representatives is teeing up a vote on the Protecting the Right to Organize (PRO) Act of 2021 (H.R. 842/S. 420) to occur sometime next week. In anticipation of the vote, this week the Coalition for a Democratic Workplace sent a letter opposing the legislation to members of Congress. Signed by 248 organizations, the letter states that the PRO ACT “would drastically restructure America’s labor laws resulting in economic upheaval that would cost millions of American jobs, threaten vital supply chains, and greatly diminish opportunities for entrepreneurs and small businesses.”

NLRB Solicits Feedback on Employer Investigations. On March 1, 2021, the National Labor Relations Board (NLRB) announced that it was soliciting amicus briefs on the issue of the proper standard to apply in situations in which employers question employees in the course of preparing defenses to unfair labor practice allegations. Board chair and lone Democratic member Lauren McFerran dissented from the notice and invitation to file briefs. (Remember that the Board currently maintains a three-to-one Republican majority.) Briefs are due on or before April 5, 2021.

DOL Pushes Back Independent Contractor Rule Effective Date. In the least surprising news of the week, the U.S. Department of Labor (DOL) officially delayed the effective date of the Trump-era Fair Labor Standards Act independent contractor final rule from March 8, 2021, to May 7, 2021. The Buzz speculates that the purpose of this delay is to buy the DOL some time and that we will soon see a subsequent proposal to amend the rule or rescind it altogether.

DOL Inspector General Criticizes OSHA’s COVID-19 Response. On February 25, 2021, the DOL’s Office of Inspector General issued a report of its audit of the Occupational Safety and Health Administration’s (OSHA) handling of the COVID-19 pandemic. The report concluded that “[d]ue to the increase in complaints, reduction in inspections, and most inspections not being conducted onsite, there is an increased risk that OSHA has not been providing the level of protection that workers need at various job sites.” Accordingly, the report recommended that “OSHA should consider whether COVID-19 should be classified as a ‘grave danger’ and reconsider whether an [emergency temporary standard] would be necessary to protect employees from such danger.” The report likely provides ammunition for proponents of an emergency temporary standard, who are hoping to see OSHA issue such a standard in the next couple of weeks.

EEOC Releases Enforcement Data. Late last week, the U.S. Equal Employment Opportunity Commission (EEOC) released its enforcement and litigation data for fiscal year 2020 (October 2019 through September 2020). Stay tuned for our upcoming EEOC roundup, an in-depth analysis of the data and what it means for employers. Spoiler alert: retaliation continues to be the most common allegation in charges filed with the EEOC.

To Everything, Term, Term, Term. Last week, the Buzz discussed President George Washington’s Farewell Address, in which he famously declined to seek a third term as president of the United States. Well, this past weekend—February 27, 2021, to be exact—marked the 70th anniversary of the 1951 ratification of the 22nd Amendment to the United States Constitution. The amendment cemented into the Constitution Washington’s precedent by prohibiting anyone from serving more than two terms as president of the United States. The amendment process was a reaction to the 1945 death of President Franklin D. Roosevelt, who was elected to four terms of office—the only president to have served more than two terms.

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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