Beltway Buzz, June 16, 2023

West Coast Ports: Parties Reach Agreement. This week, ocean carriers and terminal operators at the twenty-nine West Coast ports in the United States announced a tentative agreement with the labor union that represents their employees. The ongoing negotiations threatened to disrupt the nation’s supply chain and the economy, in general, similar to the threat posed by the freight rail labor dispute the Buzz chronicled in 2022. As part of the announcement, the employer group noted that “[t]he deal was reached with assistance from Acting U.S. Secretary of Labor Julie Su.” Expect proponents of Su’s nomination to serve as secretary of labor to refer to this development as one of the reasons why she should be confirmed.

NLRB Narrows Test for Finding Independent Contractor Status. In a decision issued on June 13, 2023, the National Labor Relations Board (NLRB) amended its independent contractor standard by rejecting its own 2019 decision in SuperShuttle DFW, Inc., which held that “entrepreneurial opportunity for gain or loss” was a critical factor for determining whether a worker was an employee or independent contractor. In doing so, the Board reverted to an independent contractor standard that downplays this factor—a standard that has been specifically rejected two times by the D.C. Circuit Court of Appeals. Dissenting Member Kaplan agreed that the workers in question—makeup artists, wig artists, and hairstylists who perform work for a regional opera company—are employees, not independent contractors, but noted that this conclusion could be reached via application of the existing SuperShuttle DFW, Inc., test. Kaplan also predicted that the new test will not survive judicial review. Greg Guidry, Eric C. Stuart, and Zachary V. Zagger have the details.

Spring 2023 Regulatory Agenda Released. On June 13, 2023, the administration released its Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions). Theoretically, the agenda provides stakeholders with both a roadmap and timeline of the regulatory actions that the federal government plans to take in the coming months. In practice, the agenda—likely due to the time that it takes to assemble—can be somewhat outdated as soon as it is released. Still, it can be helpful to take a look at the forthcoming regulatory landscape:

U.S. Department of Labor (DOL)

• Overtime. Originally scheduled to issue in April 2022, the DOL’s proposal to amend the Fair Labor Standards Act’s (FLSA) overtime regulations has now been pushed back to August 2023.
• Independent Contractor. On December 13, 2022, the DOL closed the public comment docket on its independent contractor proposal. In the fall regulatory agenda (released in January 2023), the final rule was scheduled to issue in May 2023. Now that date has been moved to August 2023.
• Davis-Bacon Act. By the end of June 2023, the DOL is expected to finalize its proposal “to update and modernize the regulations implementing the Davis-Bacon and Related Acts.”
• Workplace Safety (Occupational Safety and Health Administration (OSHA))
  • Walkaround Representative. OSHA is expected to issue a proposal by the end of June 2023 to codify its 2013 “walkaround” letter.
  • Injury and Illness Reporting. OSHA’s proposal to essentially resuscitate its 2016 injury and illness reporting regulation is scheduled to be finalized in June 2023.
  • COVID-19 Standard for Healthcare Settings. Yes, this is still a thing. A final rule is scheduled to issue in June 2023.
  • Heat Stress and Illness. The Small Business Regulatory Enforcement Fairness Act (SBREFA) process is scheduled to begin in August 2023.
• Office of Federal Contract Compliance Programs (OFCCP)
  • Modernizing Affirmative Action and Nondiscrimination Obligations for Federal Contractors and Subcontractors. This proposal is now scheduled to be released in December 2023.
  • Pre-Enforcement Notice and Conciliation Procedures. OFCCP intends to issue a final rule by June 2023 to amend the 2020 final rule which set guidelines for resolving potential employment discrimination and issuing predetermination notices (PDN) and Notices of Violation (NOV).

National Labor Relations Board

The Board is scheduled to issue its joint employer rule by August 2023. This timing coincides with the expiration of Member Wilcox’s term.

U.S. Citizenship and Immigration Services (USCIS)

• In December 2023, USCIS plans to issue a proposal “to amend its regulations governing adjustment of status to lawful permanent residence in the United States.”
• Also in December 2023, USCIS is expected to release a proposal to “modernize” the H-1B regulations.

Arbitration Agreements: Death by a Thousand Cuts? Following enactment of both the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (enacted in 2022) and the Speak Out Act (also enacted in 2022), lawmakers this week introduced a bill to further chip away at predispute employment agreements. The “Protecting Older Americans Act of 2023”—introduced by Senators Kirsten Gillibrand (D-NY), Lindsey Graham (R-SC), and Dick Durbin (D-IL), as well as Representative Nancy Mace (R-SC)—would prohibit predispute arbitration agreements and predispute class action waivers with regard to a case involving age discrimination under federal, state, or tribal law. The Buzz recently profiled the Ending Forced Arbitration of Race Discrimination Act of 2023, another bill targeting arbitration agreements.

USCIS Issues Guidance on Employment Authorization in Compelling Circumstances. On June 14, 2023, USCIS released new guidance “on the eligibility criteria for initial and renewal applications for employment authorization documents (EADs) in compelling circumstances.” The guidance is likely in response to the job loss situation faced by many high-skilled visa holders. Included is “a non-exhaustive list of situations that could lead to a finding that compelling circumstances exist,” as well as insight into the types of “evidence an applicant could submit to demonstrate one of these compelling circumstances.” The guidance is effective immediately and applies to applications filed on or after June 14, 2023.

Flag Day. Wednesday of this week was Flag Day—the annual celebration commemorating the June 14, 1777, Flag Resolution passed by the Second Continental Congress which states: “Resolved, that the flag of the thirteen United States be thirteen stripes, alternate red and white; that the Union be thirteen stars, white on a blue field, representing a new constellation.” While annual observances of the day started around the country in the mid-1800s, Flag Day wasn’t officially recognized at the federal level until 1916, when President Woodrow Wilson issued a proclamation to establish June 14 as Flag Day. In 1949, President Harry Truman signed into law legislation designating Flag Day as one of several dozen recognized national days of observance, but the day is not one of the eleven federal holidays.

The Buzz wishes everyone a happy Juneteenth holiday.