Beltway Buzz, February 17, 2023

Wilson Leaving FTC. Christine Wilson, the only Republican commissioner serving on the Federal Trade Commission, announced this week that she would be resigning her position. In an opinion piece printed by an internationally circulated publication, Wilson cited as her reason for resigning “concerns about the honesty and integrity of [FTC chair] Ms. Khan and her senior FTC leadership.” Wilson also expressed substantive concerns regarding the Commission’s proposal to ban noncompete agreements. While many factors influence the rulemaking process, the absence of a dissenting voice at the Commission could have a significant impact on the substance and timing of any final noncompete rule.

Wage and Hour Nominee Blocked in Committee. This week, the U.S. Senate Committee on Health Education, Labor and Pensions failed to advance the nomination of Jessica Looman to be administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD). The vote split along party lines, with eleven Democrats voting in favor and ten Republicans voting in opposition. However, one of those affirmative votes was cast by proxy for Senator Bob Casey (D-PA), who was not in attendance due to health-related reasons, and could not be used to break a tie vote under Senate rules. Senator Bill Cassidy (R-LA), ranking member of the committee, criticized Looman’s work as principal deputy administrator of the WHD, which, he said, “has issued multiple proposed rules that would effectively destroy the independent contracting and franchising industries, revealing an antiquated approach to a twenty-first century workforce.” Separately, the committee voted 12–9 to advance the nomination of Karla Gilbride to be general counsel of the U.S. Equal Employment Opportunity Commission.

WHD Issues Guidance on Breaks While Teleworking. On February 9, 2023, the Wage and Hour Division issued a field assistance bulletin (FAB) on “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act.” The FAB addresses the following issues relating to teleworking employees:

• At-home breaks. The FAB notes that as in the traditional workplace setting, short breaks of twenty minutes or less are compensable, “regardless of whether the employee works from home, the employer’s worksite, or some other location that is not controlled by the employer.” Conversely, breaks that are twenty minutes or more during which the employee is completely relieved of their duties, as well as bona fide meal breaks of thirty minutes or more, are not counted as hours worked when teleworking.
• Nursing employees. The guidance clarifies that the Fair Labor Standards Act’s (FLSA) requirements that covered employees be provided with a “reasonable break time” and place (other than a bathroom) to express breast milk also applies when the employee is working remotely from home or another location (e.g., a client worksite). The FAB further explains that employers are not required to compensate employees for breaks taken to express milk, unless the employer generally provides compensated breaks.
• Family and Medical Leave Act (FMLA) application. The FAB states, “Employees who telework are eligible for FMLA leave on the same basis as employees who report to any other worksite to perform their job.” The FAB continues, “When an employee works from home or otherwise teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made.”

OFCCP Extends Time for FOIA Objectors. This week brings further news regarding the Office of Federal Contract Compliance Programs (OFCCP) and its potential release of certain federal contractors’ EEO-1 data pursuant to a Freedom of Information Act (FOIA) request. In order to perform “additional quality assurance checks” to ensure that it has an accurate list of contractors that have not objected to the disclosure of this information, OFCCP announced that it is further extending the time for contractors to file their objections from February 17, 2023, until March 3, 2023. According to the announcement, by February 17, 2023, OFCCP will publish an updated list of contractors that have not objected to the release of their EEO-1 data, and “[t]his updated list will remove contractors that [OFCCP has] identified as incorrectly included” or otherwise objected during the beginning of February 2023. OFCCP will publish an updated list of nonobjectors by March 10, 2023, and provide one final opportunity to object by March 17, 2023. OFCCP’s actions follow a February 10, 2023, letter from House Committee on Education and the Workforce Chairwoman Virginia Foxx (R-NC) that expressed her concern that “OFCCP has not taken the necessary steps to notify federal contractors, especially smaller employers, that the non-objector list may have errors or that employers were required to submit objections previously to prevent their sensitive data from being released.”

EEOC Receives Comments on Draft Enforcement Plan. Late last week was the deadline for the regulated community to submit comments on the U.S. Equal Employment Opportunity Commission’s (EEOC) proposed Strategic Enforcement Plan for 2023–2027. Groups representing employers urged the Commission to refrain from supporting calls for the creation of new causes of action and burdens of proof relating to employers’ use of artificial intelligence and also cautioned the EEOC against targeting lawful arbitration agreements. These same commenters urged the Commission to issue guidance or regulations to clarify terms in the recently enacted Pregnant Workers Fairness Act. Comments from civil rights groups recommend “us[ing] the full force of the EEOC’s powers to proactively investigate discrimination in the use of hiring technologies” and encourage the EEOC to target industries that partner with independent contractors.

Stateside Visa Renewals on the Way? Christina M. Kelley has the scoop on the U.S. Department of State’s plans to launch a pilot program that will allow certain H and L visa holders to renew their visas within the United States, rather than having to travel abroad to do so at a U.S. embassy or consulate. While details of the plan are unavailable, it is intended to ease the current visa backlog resulting from COVID-19 disruptions, and it is expected to launch sometime this year.

OSHA Update. The Occupational Safety and Health Administration (OSHA) remains quite busy. For example:

• OSHA to AZ: If you like your plan, you can keep your plan. OSHA announced this week that it is rescinding its proposal to revoke Arizona’s state workplace safety plan, and that the plan will therefore stay in place. According to OSHA, Arizona has satisfactorily taken steps to adopt federal standards and penalty levels, among other actions.
• Immigration status for certain workers. On February 13, 2023, the DOL announced that, effective March 30, 2023, OSHA will have the authority to issue certifications in support of applications for U Nonimmigrant Status and T Nonimmigrant Status visas. These visas provide immigration status to noncitizens who assist law enforcement in investigating and prosecuting certain crimes, including human trafficking. The move piggybacks on the U.S. Department of Homeland Security’s recently streamlined process for workers seeking deferred action when they cooperate with labor violation investigations.
• Investigations in the absence of a complaint or accident. Finally, check out John D. Surma’s and David B. Walston’s explainer on OSHA’s update to its Site-Specific Targeting program. According to the update, the program is intended to direct OSHA’s “enforcement resources to those workplaces with the highest rates of injuries and illnesses.”

RIP, Ron Meisburg. Former National Labor Relations Board (NLRB) member and general counsel, Ronald E. Meisburg, passed away on February 3, 2023. Since the Board’s creation in 1935, Meisburg is one of only four people to serve as both a member and general counsel at the Board (the others are Richard F. Griffin Jr., John E. Higgins Jr., and Wilford W. Johansen, who served as acting general counsel for a little over five months in 1984). As such, Meisburg played an outsized role in the development of labor law policy over the last several decades. A brilliant labor lawyer, Meisburg had an uncanny ability to distill complicated legal matters into easy-to-understand terms. And as fantastic an attorney as Meisburg was, he was an even better person and friend. He will be missed.