Beltway Buzz, June 11, 2021

“A Month of Action on Capitol Hill.” The American Rescue Plan Act was enacted in March 2021, and since then President Joe Biden has been looking for his next major legislative victory. Accordingly, President Biden promised that the next several weeks would be “a month of action on Capitol Hill.” Things are not off to a good start. This past weekend, Senator Joe Manchin (D-WV) penned an op-ed in a West Virginia newspaper explaining his opposition to voting reform legislation—a priority for the administration and congressional Democrats. (Manchin also wrote, “I will not vote to weaken or eliminate the filibuster.”) In addition, bipartisan negotiations broke down this week on the administration’s infrastructure proposal—another major legislative goal of the administration. That doesn’t necessarily mean that we won’t see a legislative package addressing infrastructure—it could very well be ushered through Congress using reconciliation, the arcane process that was used to pass the American Rescue Plan Act. Because the infrastructure legislation has the potential to include major labor and employment items such as the Protecting the Right to Organize (PRO) Act, required federal contractor union neutrality, increased enforcement measures, and the like, the Buzz will continue to monitor and provide updates on its status.

Senate Fails to Advance Paycheck Fairness Act. Part of this “month of action” in the U.S. Senate includes work on the Paycheck Fairness Act (PFA) (H.R. 7), which passed the U.S. House of Representatives on April 15, 2021. This week, a motion to end debate on the PFA narrowly failed by a vote of 50–49 (Senator Kirsten Gillibrand (D-NY) did not vote) that essentially sounded the death knell for the bill. While the bill sounds innocuous enough, it would enact significant changes to current federal compensation discrimination law. For example, the bill would:

• rewrite employers’ affirmative defenses that currently permit nondiscriminatory reasons for pay differentials, such as education, experience, expertise, or location;
• allow plaintiffs to recover compensatory and unlimited punitive damages;
• make it easier for plaintiffs to bring and maintain class actions;
• require employers to submit employee compensation data to the U.S. Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs (OFCCP); and
• prohibit employers from asking about or using job applicants’ wage histories.

OSHA Issues ETS and Guidance. More than four months after President Biden’s executive order that essentially instructed the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) to address COVID-19 in the workplace, OSHA finally complied. Sort of. Despite increasing vaccination rates (nearly 64 percent of adults in the United States have received at least one vaccination dose), on June 10, 2021, OSHA issued an ETS applicable to healthcare settings (hospitals, nursing homes, emergency responders, etc.) and updated its guidance applicable to general industry. The ETS is effective immediately upon publication in the Federal Register (we don’t know when that will happen just yet), and employers will have 14 days to comply with most of the provisions. Dean F. Kelley and John F. Martin have the details.

Immigration Agency Moves to Streamline Processes. Looking to rebuild itself, U.S. Citizenship and Immigration Services (USCIS) announced this week that it would make changes to its policy manual to ease processing backlogs and help streamline immigration protocols. More specifically, USCIS will do the following:

• Expedite processing. USCIS has amended its criteria for determining when a case should be considered for expedited treatment, including criteria for nonprofit organizations “whose request is in furtherance of the cultural and social interests of the United States.”
• Rescind the RFE/NOID memo. USCIS will return to a 2013 policy on requests for evidence (RFE) and notices of intent to deny (NOID) that instructs adjudicators not to immediately deny petitions and applications “when additional evidence could potentially demonstrate eligibility for an immigration benefit.” The change rescinds a 2018 USCIS memo that had permitted denials without allowing petitioners or applicants to correct mistakes or provide additional helpful information.
• Extend the EAD validity period. USCIS has extended work authorization from one year to two years for applicants waiting for decisions on their adjustment-of-status applications.

NLRB Rules on Solicitation of Mail Ballots. This week, the National Labor Relations Board (NLRB) addressed a situation dealing with the integrity of mail-ballot voting for union representation elections. The Board ruled that neither party in a mail-ballot union election—a process that has predominated relative to manual-election methods during the COVID-19 pandemic—may offer to handle or collect a voter’s ballot, “but such solicitation will be a basis for setting aside the election only where the evidence shows that a determinative number of voters were affected.” The Board reasoned in part that “solicitation of mail ballots casts doubt on the integrity of the election and the secrecy of employees’ ballots.”

RIP, Raymond Donovan. Raymond Donovan (no, not that one), the former secretary of labor during the Reagan administration, passed away this week at the age of 90. Donovan was a former construction company executive who served as U.S. secretary of labor from 1981 to 1985. Donovan resigned his position after being indicted for fraud and larceny relating to a New York City subway construction project, becoming the first serving member of a presidential cabinet to be indicted. Donovan was eventually acquitted by a jury in 1987, at which time he famously quipped, “Which office do I go to to get my reputation back?”