Beltway Buzz, July 2, 2021

Last Week Today. Here is a quick rundown of some of the labor and employment policy developments we missed last week while at Workplace Strategies in Austin, Texas (be sure to join us next year for the program at the Arizona Biltmore).

• OSHA COVID-19 ETS Now Effective. The Occupational Safety and Health Administration’s COVID-19 emergency temporary standard (ETS) became effective on June 21, 2021. This means that covered employers (e.g., generally speaking, those in the healthcare industry) must comply with most of the provisions by July 6, 2021, but have until July 21, 2021, to comply with the requirements regarding physical barriers, ventilation, and training. The new standard is already the subject of multiple legal challenges from unions claiming that it does not go far enough.
• DOL Proposes Return to 80/20 Rule for Tipped Employees. The U.S. Department of Labor’s (DOL) Wage and Hour Division issued a proposal to rescind portions of a Trump-era DOL guidance and rulemaking that allows employers to take a tip credit for time employees spend on work that does not generate tips (such as refilling condiment bottles or folding napkins), as long as those tasks are reasonably related to the tip-generating work. The new proposal would instead restore the 80/20 rule, prohibiting employers from taking a tip credit if employees’ non-tip producing work exceeds 20 percent of the work week. Victoria L. Vish and Steven F. Pockrass have the details.
• FLSA Joint-Employer Rule. Despite not having a Senate-confirmed administrator, the DOL’s Wage and Hour Division continues to roll back Trump-era initiatives. Late last week, the DOL sent its proposed rescission of the 2020 joint-employer regulation, which established a straightforward test for determining joint-employer status, to the Office of Information and Regulatory Affairs for final review. This means that a final rule likely rescinding the 2020 regulation will arrive shortly.
• USCIS Nominee Advances. The Senate Judiciary Committee recently approved the nomination of Ur Mendoza Jaddou, who is an attorney with 20 years of experience in immigration law and policy, to be director of U.S. Citizenship and Immigration Services. Jaddou’s nomination now awaits a vote by the full Senate.
• President Biden Announces New Nominee to NLRB. President Biden nominated long time union-side attorney David Prouty to fill a not-yet-empty seat on the National Labor Relations Board. Prouty will queue up in anticipation of replacing current member William Emanuel when his term expires on August 27, 2021. As the Buzz discussed previously, President Biden nominated another union attorney, Gwynne Wilcox, to fill the currently vacant seat on the Board. With these two nominations, Democrats are poised to flip the Board in their favor as early as September 2021.

EEOC Transparency Rule Nixed. On June 30, 2021, President Biden signed a resolution rescinding the U.S. Equal Employment Opportunity Commission’s (EEOC) regulation that requires EEOC attorneys to be more transparent with their demands during the conciliation process. Because the rule was rescinded pursuant to the Congressional Review Act, the EEOC will generally be prohibited from future attempts to clarify the conciliation process, absent express consent from Congress. For more on the future of pressing EEOC policy issues, check out our forecast in part three of our multi-part blog series on recent developments at the EEOC.

EEO-1 Filing Deadline Extended. Speaking of the EEOC, the Commission has extended the deadline for employers to submit their EEO-1 forms. Kiosha H. Dickey and James A. Patton, Jr. have all the details.

Voters Wary of PRO Act. As part of the ongoing lobbying campaign over the Protecting the Right to Organize Act of 2019 (PRO Act), this week the Coalition for a Democratic Workplace released the results of a survey regarding the public’s opinions of the bill. A bipartisan firm surveyed more than 1,000 voters and concluded, among other findings, that:

• “70% of voters are concerned about the PRO Act abolishing state right-to-work protections.”
• “70% of voters are concerned that the PRO Act limits the ability of individuals to work as independent contractors.”
• “68% of voters are concerned about the PRO Act interfering with small business’ access to legal advice on labor law matters.

The PRO Act remains stalled in the Senate for now, and advocates on both sides will undoubtedly continue their lobbying efforts.

Life is a Highway. Much of the debate in Washington, D.C., these days is focused on a legislative infrastructure package to provide funding to rebuild our roads, bridges, and waterways. Thus, it is fitting that this June 29 marked the 65^th anniversary of the enactment of the Federal Aid Highway Act of 1965. The historical statute, signed into law by President Dwight D. Eisenhower, authorized $26 billion dollars—generated from an increased gasoline tax—for the construction of a 41,000-mile network of interstate highways. The bill’s primary congressional champions were representative Hale Boggs (D-LA) (who is presumed to have died in a 1972 plane crash in Alaska along with representative Nick Begich) and Senator Albert Gore, Sr. (D-TN) (who was “Al Gore” before the 45^th vice president was “Al Gore”). Today, the longest interstate highway is I-90, which connects Seattle, Washington, with Boston, Massachusetts.