Here We Go Again: Government Shutdown? In early October, the Buzz theorized that the last-ditch effort to avoid a government shutdown on October 1 hadn’t solved the appropriations problem, but only postponed the debate. Fast-forward six weeks, and here we are again: government funding is set to expire at 11:59 p.m. on November 17—one week from today. Although it appears that the leadership of both parties in both chambers of the U.S. Congress agree that some form of a continuing resolution will be necessary, not much progress has been made toward that goal so far. A refresher on what will happen in the event of a federal government shutdown is here.
Members of Congress Move to Rescind NLRB Joint-Employer Rule; Business Groups Head to Court. This week, members of the U.S. Senate and U.S. House of Representatives introduced a Congressional Review Act (CRA) resolution to rescind the National Labor Relations Board’s (NLRB) joint-employer rule. The resolution actually has a chance of getting through the Senate, passing the House, and landing on President Biden’s desk. (Indeed, just this week, the Senate passed another CRA that would rescind a Federal Highway Administration rule relating to electric vehicle chargers.) While President Biden is likely to veto such a resolution, this effort on Capitol Hill represents just one front in the business community’s battle against the joint-employer rule. In fact, this week, a group of trade groups filed a legal challenge to the Board’s rule, arguing that the rule violates the National Labor Relations Act and is arbitrary and capricious.
DOL’s Overtime Proposal Advances. November 7, 2023, was the deadline for stakeholders to submit comments in response to the U.S. Department of Labor’s proposed changes to the Fair Labor Standards Act’s overtime regulations. Among those groups filing comments was the Retail Industry Leaders Association, which noted that the proposal “will likely increase operational and legal uncertainty for the regulated community, and particularly for retailers.” Final regulations are expected to issue in the spring or summer of 2024. Assuming the final regulations track the proposal, legal challenges will likely follow.
Senate Reconfirms Burrows to EEOC. On November 8, 2023, the U.S. Senate voted 51–47 to confirm Charlotte Burrows to a third five-year term on the U.S. Equal Employment Opportunity Commission (EEOC). Technically, Burrows’s term expired on July 1 of this year, but provisions of federal law allowed her to remain on the Commission while her renomination was pending. An EEOC press release stated the following about Burrows’s reconfirmation:
She seeks to enhance the Commission’s enforcement of all laws within its jurisdiction, with a keen focus on strengthening and deepening the agency’s systemic discrimination work. She will continue to support employer efforts to implement and foster lawful and appropriate diversity, equity, inclusion, and accessibility (DEIA) practices that proactively identify and address barriers to equal employment opportunity, help employers cultivate a diverse pool of qualified workers, and foster inclusive workplaces.
Burrows’s confirmation will ensure that Democrats maintain a majority on the Commission through at least June 2026.
Bipartisan Immigration Bills Introduced. Senators Kevin Cramer (R-ND) and John Hickenlooper (D-CO) will introduce the Equal Access to Green Cards for Legal Employment (EAGLE) Act, a bill that they teamed up to sponsor in the previous Congress. The bill would eliminate the 7 percent per-country cap for employment-based visas and more than double the per-country cap on family-based visas. However, as the Buzz has previously discussed, the bill would also make dramatic changes to the H-1B visa program. Additionally, a bipartisan group of senators and representatives have introduced the Healthcare Workforce Resilience Act (S. 3211), which would recapture 25,000 unused visas for nurses and 15,000 unused visas for doctors.
SCOTUS Takes Three Swings at Antitrust Law. Seventy years ago this week, the Supreme Court of the United States reaffirmed that the Sherman Antitrust Act did not apply to Major League Baseball. Although Toolson v. New York Yankees, Inc., was decided on November 9, 1953, the case really originated in 1915, when the Federal League of Base Ball Clubs was forced to fold, and the owner of the Baltimore Terrapins sued the American and National Leagues for monopolizing baseball. (Wrigley Field, built in 1914 for the Federal League’s Chicago Whales, stands as a monument, of sorts, to the Federal League.)
In that earlier case, Federal Baseball Club v. National League (1922), Justice Oliver Wendell Holmes wrote for the Court that there was no antitrust violation because “[t]he business is giving exhibitions of baseball, which are purely state affairs.” Fast-forward thirty years and the issue arose again when pitcher George Toolson sued the Yankees, claiming the “reserve clause”—by which baseball teams retained the rights to players even upon the expiration of their contracts—was a restraint of trade. The Court upheld the antitrust exemption, ruling that Congress would have acted in the thirty-year interim if the Federal Baseball Club decision was a problem: “[I]f there are evils in this field which now warrant application to it of the antitrust laws, it should be by legislation,” the Court stated in its one-paragraph unsigned per curiam opinion.
In 1972, in Flood v. Kuhn, the Supreme Court upheld baseball’s antitrust exemption for a third time, but noted, “It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court’s expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball’s unique characteristics and needs.” Baseball’s reserve clause was essentially struck down in a 1975 arbitration decision.
