Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Secretary of Labor Confirmed. On March 23, 2021, former Boston mayor Martin Walsh was sworn in as the 29th U.S. Senate-confirmed secretary of labor. Walsh’s nomination had been approved by the Senate just one day earlier on a bipartisan 68–29 vote, with 18 Republicans voting in favor of confirmation. Walsh, who has strong ties to the labor movement and the Boston community, will have some catching up to do upon entering the U.S. Department of Labor’s (DOL) Frances Perkins Building, as the DOL has not wasted any time in moving ahead with its new agenda. We have already seen efforts to roll back Trump-era regulations on independent contractor classification, joint employment, and tip pools (more on this below); to rescind certain opinion letters and the Payroll Audit Independent Determination (PAID) program, as well as the Industry-Recognized Apprenticeship Program; and to revoke other Trump administration initiatives. One item we have not yet seen from the DOL’s Occupational Safety and Health Administration (OSHA) is a COVID-19 emergency temporary standard. Of course, the Buzz will be monitoring how Walsh will influence the development of these and other DOL efforts in the future.

Democratic Legislators Seek to Undo EEOC Conciliation Rule. This week, Senator Patty Murray (D-WA), chair of the Senate Committee on Health, Education, Labor, and Pensions, and Representative Bobby Scott (D-VA), chair of the House Committee on Education and Labor, introduced a joint resolution under the Congressional Review Act (CRA) providing for congressional disapproval and rescission of the U.S. Equal Employment Opportunity Commission’s (EEOC) final conciliation rule. The rule, which became effective on February 16, 2021, makes the statutorily required conciliation process more transparent by, for example, requiring the EEOC to provide defendants with the factual and legal bases for the EEOC’s reasonable cause findings and demands for monetary relief. The CRA allows Congress to rescind certain “midnight regulations” promulgated by federal agencies, and it is not subject to the filibuster. If the resolution passes both the Senate and House and is signed by President Joe Biden, the EEOC will not be able to reissue the rule in “substantially the same form” in the future, unless authorized by Congress.

Antidiscrimination, Workplace Safety Bills on the Move. On March 24, 2021, the House Committee on Education and Labor advanced three bills that impact the workplace. These included the Pregnant Workers Fairness Act (H.R. 1065) and the Paycheck Fairness Act (H.R. 7), both of which we discussed last week, as well as the Workplace Violence Prevention for Health Care and Social Service Workers Act (H.R. 1195), which directs OSHA to develop a violence prevention standard for healthcare and social assistance workplaces. The next stop for the bills will be the floor of the U.S. House of Representatives, and if history is a guide, they are likely to pass: all three bills passed the House with bipartisan support in the previous Congress. The Pregnant Workers Fairness Act garnered 103 Republican votes, the Paycheck Fairness Act passed with 7 Republican votes, and the workplace violence prevention bill passed with 32 Republican votes.

Tip Proposals. On March 25, 2021, the DOL’s Wage and Hour Division issued two proposals to address the Trump-era “Tip Regulations Under the Fair Labor Standards Act” final rule, which dealt with tipped employees and was finalized on December 30, 2020. The Biden administration had already postponed the effective date of the rule from March 1, 2021, to April 30, 2021.

  • The first proposal would further extend until December 31, 2021, the effective date of the portions of the 2020 tip final rule that deal with civil money penalties and employees who perform tipped and non-tipped work. The proposed extension of the effective date is, in part, to allow the DOL to address the substantive issues contained in the second notice of proposed rulemaking (discussed below). Comments are due on or before April 14, 2021.
  • The second notice of proposed rulemaking proposes to “withdraw and repropose” provisions of the 2020 tip final rule concerning civil money penalties. The proposal also seeks comment on whether to revise portions of the 2020 tip rule relating to “managers or supervisors,” as well as recordkeeping requirements. Comments are due on or before May 24, 2021.

Other provisions of the 2020 tip final rule, such as those addressing tip pooling, recordkeeping related to tipped workers, and other matters, will become effective on April 30, 2021.

OFCCP Proposes to Nix Religious Exemption. On March 23, 2021, the Office of Federal Contract Compliance (OFCCP) programs sent to the Office of Information and Regulatory Affairs a proposal entitled “Rescission of Certain Provisions Related to the Religious Exemption for Federal Contractors and Subcontractors.” As its title indicates, the proposed rule would rescind the rule that was finalized on December 9, 2020, and intended to provide protections for religious organizations to “hire employees who will further their religious missions, thereby providing clarity that may expand the eligible pool of federal contractors and subcontractors.”

Congress Extends PPP for Small Employers. On March 25, 2021, Congress approved a bill (H.R. 1799) to extend the Paycheck Protection Program (PPP) through May 31, 2021. (Additionally, the bill permits the Small Business Administration an extra month to process applications submitted prior to the May 31, 2021, deadline.) Although the American Rescue Plan Act had provided an additional $7.25 billion in funding to the program, it neglected to extend its expiration date beyond March 31, 2021. President Biden is expected to sign the legislation.

Speaker for a Day. March 23, 2021, marked the 116th anniversary of the death of New York congressman Theodore Pomeroy, who was elected to four terms in the House of Representatives beginning in 1860. Pomeroy holds a unique place in the history of the House. On March 3, 1869, Representative Schuyler Colfax resigned his position as the Speaker of the House in order to be sworn in as President Ulysses S. Grant’s vice president the following day. Because the 40th Congress did not close until March 4, 1869, the House passed a special motion making Pomeroy the Speaker for that one remaining day—the shortest speakership stint in United States history.

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