Beltway Buzz, March 18, 2022

Trump-Era Independent Contractor Rule Reinstated. In a decision issued on March 15, 2022, the U.S. District Court for the Eastern District of Texas reinstated the U.S. Department of Labor’s (DOL) rule, “Independent Contractor Status Under the Fair Labor Standards Act,” which was originally scheduled to take effect on March 8, 2021. The Trump-era rule, which focused on workers’ control over the work and their opportunity for profit and loss, never went into effect as it was quickly paused and then rescinded altogether by the Biden administration. Business groups subsequently filed a legal challenge over the administration’s pause and rescission of the Trump-era rule. In this ruling, the court focused on process—a frequent agency rulemaking slip-up, no matter the administration—holding that the DOL violated the Administrative Procedure Act when rescinding the rule because it did not provide a meaningful opportunity for the public to comment on its proposals and also “refused to ‘meaningfully consider more limited policies’ than the total withdrawal of the Independent Contractor Rule.” The judge reinstated the rule as of its original effective date (March 8, 2021), and it remains in effect. The DOL has not yet stated whether it will appeal the decision.

DOL Proposes Prevailing Wage Changes. With passage of the $1.5 trillion infrastructure law, the administration continues to make policy changes that will impact the implementation of the law. First, President Biden issued his executive order on project labor agreements. Then, late last week, the DOL announced that it is proposing changes to its regulations implementing the Davis-Bacon Act (DBA)—the 1931 law that requires the payment of government-set prevailing wage rates to workers performing work on covered federally funded construction projects. Currently, the prevailing wage is identified as such if it is paid to a majority of workers in the area, otherwise, a weighted average rate is used. The proposal would scrap this formulation in favor of a pre-1983 definition of “prevailing wage” that allows such wage to be set if it is paid to only 30 percent of workers in the area. The proposal also contains new anti-retaliation clauses for covered contracts that are “intended to ensure that workers who raise concerns about payment practices or assist agencies or the Department in investigations are protected from termination or other adverse employment actions.” Finally, the proposal would strengthen agency withholding procedures to aid in backpay recovery when a violation occurs. The proposed changes would also impact the seventy-one other “related acts” that use the DBA prevailing wage calculation.

Federal Contractor Agency Issues New Pay Equity Directive. On March 15, 2022, the Office of Federal Contract Compliance Programs (OFCCP) issued a directive that “explains how OFCCP reviews contractors’ compliance with their obligations to conduct an in-depth compensation analysis” and “clarifies OFCCP’s authority to access and review contractors’ pay equity audits.” Of particular note, the directive claims that OFCCP has the authority to order the production of pay equity audits conducted with the assistance of counsel. Leigh M. Nason has the details.

EEOC Issues COVID-19 Caregiver Guidance. This week the U.S. Equal Employment Opportunity Commission (EEOC) issued a technical assistance document that provides guidance relating to discrimination against applicants and employees who have COVID-19–related caregiving responsibilities. For example, the guidance reminds employers that it is unlawful to refuse to hire a female applicant, or take an adverse action against a female employee, based on the assumption that she is focused on COVID-19–related caregiving responsibilities (e.g., such as staying home with children who are participating in remote learning). Similarly, it would be unlawful to prohibit a male employee from working a flexible schedule to care for a family member with COVID-19, if similarly situated female employees are granted such permission. The guidance also provides other examples relating to other protected categories—such as race, age, LGBTQI+ status—and COVID-19–related caregiving responsibilities.

House Bans Arbitration. Following the recent enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, congressional opponents of alternative dispute resolution are looking to strike while the iron is hot. On March 17, 2022, the U.S. House of Representatives voted to pass the Forced Arbitration Injustice Repeal (FAIR) Act by a vote of 222-209. The bill prohibits predispute arbitration agreements in employment, consumer, antitrust, and civil rights disputes. Due to its broad scope, the bill faces an uphill climb in the U.S. Senate.

Time of the Season. Because the Buzz has previously reported on national efforts to set certain uniform time policies, we feel duty bound to report that the U.S. Senate this week passed—by unanimous consent—the Sunshine Protection Act, a bill that would make daylight saving time permanent. Of course, this is not the first time we have tried permanent daylight saving time. As a result of a similar act of the U.S. Congress, beginning in January 1974, the United States switched to permanent daylight saving time on a two-year trial basis. However, the switch was so unpopular, it lasted less than a year. By August 1974, Congress voted to return to our current system (the vote in the U.S. House of Representatives was an overwhelming 383 to 16), and then-president Gerald Ford signed the legislation in October 1974. No word yet on how the House of Representatives will respond to the bill.