Beltway Buzz - May 2021

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DOL Rescinds Independent Contractor Rule. On May 6, 2021, the U.S. Department of Labor (DOL) issued a regulation rescinding its independent contractor rule, which was finalized on January 7, 2021, but never went into effect. The withdrawal comes less than three weeks after the close of a public comment docket that generated over 1,000 responses. The DOL stated that it “believes that the Rule is inconsistent with the [Fair Labor Standards Act’s] text and purpose, and would have a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent.” The new regulation does not set forth a new regulatory standard for evaluating independent contractor status, but the Buzz expects the DOL to weigh in on that matter eventually.

Warner and the PRO Act. Senator Mark Warner (D-VA) is one of three Democratic senators (along with Arizona senators Kyrsten Sinema and Mark Kelly) who have not signed on as cosponsors of the Protecting the Right to Organize (PRO) Act. In a recent series of calls with the press, Senator Warner said that while he supported many elements of the PRO Act, he had concerns with some of the bill’s provisions, including “some of the process issues around an election voting process for a union,” as well as the codification of the ABC test in the National Labor Relations Act (NLRA). Senator Warner brought up the example of California, and the unpopularity of Assembly Bill (AB) 5. Senator Warner also stated that one of his concerns was that the PRO Act “tries to fit all work into kind of a 20th century, classic W-2 employment status,” but the United States will not “return to a 1980s type of economy.” His remarks came as big labor continued its full-court press demanding passage of the PRO Act. Indeed, this week, players’ unions from the major professional football, basketball, baseball, and hockey leagues came out in support of the legislation.

NLRB Avoids Challenge to GC Appointment. Speaking of labor-management policy, last week the Buzz noted that President Joe Biden’s firing of National Labor Relations Board (NLRB) General Counsel Peter Robb was going to be the subject of legal and policy debate over the next several years. In a decision issued on April 30, 2021, the NLRB declined to rule on a legal challenge to Robb’s removal and the subsequent appointment of Peter Sung Ohr as the Board’s acting general counsel. In declining to wade into the fracas, the Board stated, “reviewing the actions of the President is ultimately a task for the federal courts,” and that, in any case, “the Board has no authority to remedy an invalid appointment to the Board or a designation or appointment to serve as General Counsel.” Stay tuned, as there will be much more on this issue.

Retirement Legislation Advances. On May 5, 2021, the U.S. House of Representatives’ Committee on Ways and Means approved the Securing a Strong Retirement Act of 2021 (H.R. 2954), a bill intended to promote retirement savings, and voted unanimously to advance it to the House floor for a vote. The legislation builds upon the Setting Every Community Up for Retirement Enhancement (SECURE) Act, which was enacted in 2019. Among other provisions, the bill would require auto-enrollment of eligible individuals in employer-sponsored retirement plans, increase the age (from 72 to 75) at which retirees must begin taking required minimum distributions, allow for higher “catch-up” contributions for older workers, and allow open multiple employer plans (MEPs) for 403(b) plans. Given the measure’s bipartisan backing, the bill’s supporters are hopeful for its swift passage in the House and U.S. Senate.

USCIS to Ease Biometrics Requirement. United States Citizenship and Immigration Services (USCIS) stakeholders are undoubtedly aware of the visa processing backlogs that are currently plaguing the agency as a result of COVID-19–related delays. In particular, spouses of H-1B and L-2 visa holders have experienced delays in securing changes of status and work authorization, which have resulted in multiple lawsuits challenging the processing delays as unreasonable. To address these processing delays, USCIS announced this week in a court filing that beginning on May 17, 2021, it “will temporarily suspend biometrics submission requirements for individuals filing Form I-539 to request an extension of stay in or change of status to H-4, L-2 and certain E nonimmigrants due to the extended processing times resulting from … ongoing COVID-19 health and safety protocols.” The suspension of the collection of biometric data “is intended to automatically expire after May 17, 2023, subject to affirmative extension or revocation by the USCIS Director.”

Political Races. Politicians are used to running political campaigns, and believe it or not, some are even good at, well, actually running. With regard to our current crop of federal legislators, the best runner and long-distance athlete is likely Senator Kyrsten Sinema (D-AZ). Senator Sinema, who has participated in multiple marathons and triathlons, announced this week that she would be running in the 2021 Boston Marathon, which will take place on October 11, 2021. Despite her athletic prowess, Senator Sinema probably cannot lay claim to being Congress’s all-time best runner, a distinction that likely goes to former representative Jim Ryun (R-KS). Prior to his service in the U.S. House of Representatives from 1996 to 2007, Ryun competed in the 1964, 1968, and 1972 Summer Olympic Games. He won a silver medal in the 1,500-meter race at the 1968 Olympics in Mexico City. Ryun previously qualified for the 1964 Olympics in Tokyo when he was only 17 years old, becoming the youngest American male track athlete ever to qualify for the Olympics—a record that stands today.

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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