Beltway Buzz, February 5, 2021

Congress Sees Its Shadow. It was Groundhog Day this past week, and it sure feels like we have been living the same day over and over again with the way that the parties in Congress can’t agree on an economic stimulus package. Democrats are moving forward, however, and this week they began advancing their economic package using “budget reconciliation,” a parliamentary process that avoids a filibuster and requires only 51 votes in the U.S. Senate to pass a measure. (Budget reconciliation could nevertheless prove a lengthy ordeal requiring modification of the legislation.) Republicans are still hoping that they can have some input in the process, and 10 Republican senators met with President Joe Biden at the White House this week to discuss a compromise proposal that they had drafted. It appears that there is still a ways to go on this matter.

PRO Is a Go. On February 4, 2021, Democrats in the U.S. Senate and U.S. House of Representatives reintroduced the Protecting the Right to Organize (PRO) Act, sweeping labor legislation whose enactment is the AFL-CIO’s top priority in 2021. The bill already has 195 cosponsors, including 2 Republicans. Suffice it to say, we will be reporting more on the PRO Act as the 117th Congress unfolds.

Labor Secretary Nominee’s Hearing. On February 4, 2021, the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) held a confirmation hearing on the nomination of Boston Mayor Marty Walsh to serve as secretary of labor. Topics discussed at the hearing included the federal minimum wage, state right-to-work statutes, unemployment insurance, the rights of individuals with disabilities, workplace safety, energy-sector jobs, and the David-Bacon Act among other federal contracting issues. The HELP Committee’s ranking member, Senator Richard Burr (R-NC), indicated that he would be inclined to support Walsh’s nomination and would encourage his fellow Republicans to do the same.

Well, That Didn’t Take Long. Though he was just installed last week as acting general counsel of the National Labor Relations Board (NLRB), Peter Sung Ohr has already made significant policy changes. On February 1, 2021, Ohr issued a memorandum rescinding 10 general counsel memoranda that former NLRB general counsel Peter Robb had issued between 2018 and 2020. Among the rescinded memos were directives and guidance addressing handbook rules, the legal standard in cases alleging union breaches of the duty of fair representation, the rights of employees who choose to refrain from union membership, and neutrality agreements and “whether they provide ‘more than ministerial support’ to the union’s efforts to organize.”

Trump-Era DOL Regulations Paused. This week, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) announced that it would postpone for 60 days the effective dates of the independent contractor and tipped wages regulations.

The independent contractor regulation, published in the Federal Register on January 7, 2021, reaffirms the “economic dependence standard” for determining whether a worker is an independent contractor or an employee. The regulation was set to go into effect on March 8, 2021, but the WHD is now proposing a new effective date of May 7, 2021. Comments on the proposed delay are due by February 24, 2021.

The tipped-wages regulation went through many twists and turns before it was published in the Federal Register on December 30, 2020. The regulation permits tip pooling for employers that do not take the tip credit and allows “back-of-the-house” employees (e.g., cooks, dishwashers, and others) to share in tip pools. The regulation also allows employers to take the tip credit for time that employees, such as servers, spend performing side work that doesn’t generate tips (e.g., cleaning and setting tables) but that is related to their tip-generating work. The regulation was scheduled to become effective on March 1, 2021, but the WHD has now proposed to delay the effective date until April 30, 2021. Comments on the proposal are due by February 17, 2021. Charles E. McDonald, III has the details.

PAID Program Pitched. Speaking of the WHD, last week the Buzz discussed the WHD’s rescission of multiple wage and hour opinion letters and speculated as to whether the entire opinion letter program would be discontinued. The opinion letter program remains in place—for now—but at least one WHD compliance assistance program has already been thrown overboard. Late last week, the DOL terminated the Payroll Audit Independent Determination (PAID) program, which was started by the Trump administration in 2018 and encouraged employers to voluntarily correct certain underpayments to employees.

OSHA Issues New COVID-19 Guidance. On January 29, 2021, pursuant to President Biden’s “Executive Order on Protecting Worker Health and Safety,” the Occupational Safety and Health Administration issued new guidance relating to COVID-19 and workplace safety. J. Davis Jenkins explains what this means for employers.

President Biden Issues Immigration Order. On February 2, 2021, President Biden issued the “Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” The order is a first step toward dismantling Trump-era immigration policies, as it instructs the secretary of state, the attorney general, and the secretary of homeland security to “review existing regulations, orders, guidance documents, policies, and any other similar agency actions … that may be inconsistent with the policy set forth in section 1 of [the] order.” Section 1 of the order states that the federal government’s immigration policy should, among other things, “promote integration, inclusion, and citizenship, and … embrace the full participation of the newest Americans in our democracy.” The executive order specifically instructs those agency heads to review USCIS’s fee increase changes announced in the summer of 2020, as well as the public charge rule.

H-1B Wage Allocation Rule Postponed. On February 4, 2021, USCIS announced that it would postpone the effective date of its H-1B wage allocation selection rule. Published in the Federal Register on January 8, 2021, the rule was originally scheduled to go into effect on March 9, 2021. USCIS is now proposing to extend the rule’s effective date to December 31, 2021. The announcement stated, “For the upcoming H-1B cap season, USCIS will apply the current regulations (random selection) to any registration period that takes place before Dec. 31, 2021.” The agency will receive comments on the proposed delay for 30 days after the notice is published in the Federal Register.

Secretary of Homeland Security Confirmed. On February 2, 2021, the U.S. Senate confirmed Alejandro Mayorkas as secretary of homeland security, and he was sworn in later that day. Mayorkas previously held the position of deputy secretary of homeland security from 2013 to 2016. He was also director of USCIS from 2009 to 2013.

Senate Voting Milestones. As the U.S. Senate kicked off its initial consideration of President Biden’s economic stimulus plan this week, Senator Patty Murray (D-WA) and Senator Dianne Feinstein (D-CA) each cast her 9,000th roll call vote in the U.S. Senate. This was quite an accomplishment for the senators, who were first elected to the U.S. Senate in 1992. Senators Murray and Feinstein have a long way to go, however, if they are to break the record for most roll call votes in the U.S. Senate, which is held by former senator Robert Byrd (D-WV). During his time representing West Virginia in the U.S. Senate from 1959 to 2010, Senator Byrd cast 18,689 roll call votes.