Beltway Buzz, March 15, 2024

Shutdown Clock Continues to Tick. Although the U.S. Congress staved off a partial government shutdown last week and made some progress toward finalizing government appropriations for the 2024 fiscal year, the work is not completely done. Congress has one week—until March 22, 2024—to pass six appropriations bills that will fund agencies such as the National Labor Relations Board (NLRB) and U.S. Department of Labor (DOL). Congress didn’t make much progress toward that goal this week, so it looks like we will be pushing up close to next week’s deadline—something that we have all gotten used to over the last six months.

Federal Judge Vacates NLRB’s Joint-Employer Rule. Just days before the NLRB’s joint-employer rule was scheduled to go into effect, a judge of the U.S. District Court for the Eastern District of Texas vacated the rule due to “the unlawfulness of the rule’s sweep beyond common-law limits.” Judge J. Campbell Barker wrote that the Board had “failed to reasonably address the disruptive impact of the new rule on various industries, … resolve ambiguities in a way making the rule more predictable than common-law adjudication, or explain how the rule does anything other than mandate piece-meal bargaining that will likely promote labor strife rather than peace ….” Elizabeth M. Soveranez, Elizabeth T. Jozsi, and Zachary V. Zagger have the details.

Federal Courts to Limit “Judge Shopping.” Speaking of federal courts striking down rules, this week the Judicial Conference of the United States, which is chaired by Chief Justice John Roberts and makes policy decisions for the federal courts, took steps to strengthen its policy on random case assignment. The new policy is intended to make it more challenging for plaintiffs to engage in “judge shopping.” According to a press release, “The policy addresses all civil actions that seek to bar or mandate state or federal actions, ‘whether by declaratory judgment and/or any form of injunctive relief.’ In such cases, judges would be assigned through a district-wide random selection process.” Interest groups on both sides of the political aisle have tended to engage in so-called “judge shopping,” so the new policy should theoretically have an equal impact (though groups opposing the current administration’s regulatory agenda will likely be impacted most immediately).

EEOC Releases EEO-1 Wage Data. This week, the U.S. Equal Employment Opportunity Commission (EEOC) released aggregated employee pay data, as well as an accompanying dashboard, that it collected from employers’ submissions of 2017 and 2018 EEO-1 Component 2 wage and hours worked data. The information reflects aggregated salary data distributed through twelve pay bands, broken down by race and gender. Importantly, the data lumps dissimilar jobs into these pay bands and does not reflect nondiscriminatory, lawful reasons for disparities in pay. The Buzz takes this release of data—as well as the EEOC’s 2022 hyping of the National Academies of Sciences review of the Component 2 data collection—as a sign that the EEOC is planning to revive the wage data collection. According to a frequently asked questions (FAQ) document accompanying the data release, the EEOC states the following about potential collections of employee pay data in the future: “Any new pay data collection would be preceded by additional and formal opportunities for public input, including public notice and a public hearing, and any such collection would be informed and guided by that public input.”

“Everybody’s Workin’ for the (Three-Day) Weekend.” Senator Bernie Sanders (I-VT), chair of the Senate Committee on Health, Education, Labor, and Pensions (HELP), and Representative Mark Takano (D-CA) will introduce the Thirty-Two Hour Workweek Act, which, as its name indicates, would “[r]educe the standard workweek from 40 to 32 hours over four years by lowering the maximum hours threshold for overtime compensation for non-exempt employees.” Senator Sanders even held a hearing this week to discuss the bill, during which his Republican counterpart, Senator Bill Cassidy (R-LA), noted the following about the bill: “The government mandating a 32-hour workweek while requiring businesses to increase pay at least an extra 25 percent per hour of labor will destroy employers, forcing them to either ship jobs overseas or dramatically increase prices to try and stay afloat.” If this all seems a bit out there, perhaps Senator Sanders—who along with the rest of his Senate colleagues is used to working Tuesday through Thursday—thinks he is adding a day to the traditional workweek.

H-2B Visa Cap Hit for Second Half of FY 2024. U.S. Citizenship and Immigration Services (USCIS) has announced that it “has received enough petitions to meet the congressionally mandated H-2B cap for the second half of FY 2024.” Another 24,000 visas were allocated for this period, which pertains to work starting on or after April 1, 2024, but before October 1, 2024. An additional 64,716 H-2B temporary nonagricultural worker visas were made available pursuant to a November 2023 temporary final rule. Natalie L. McEwan has the details.

FTC Update and Noncompete Proposal. The U.S. Senate has confirmed Republicans Andrew N. Ferguson and Melissa Holyoak to serve as commissioners of the Federal Trade Commission (FTC). When sworn in, Ferguson and Holyoak will join the three Democratic commissioners—Chair Lina M. Khan, Rebecca Kelly Slaughter, and Alvaro Bedoya—to round out the five-member Commission. The Buzz is hopeful that a more politically balanced Commission will result in an evenhanded and sensible final rule on noncompete agreements (a withdrawal of the proposal is unlikely), which is expected to issue in the coming weeks.

The Lend-Lease Act, or An Act to Promote the Defense of the United States. A bill signed into law this week in 1941 changed the course of World War II. Though fascism was on the rise in 1930s Europe, the horrible aftermath of World War I had left most Americans with little appetite to engage in foreign wars. Congress responded to this sentiment by passing three Neutrality Acts—in 1935, 1936, and 1937, respectively. These acts prohibited the sale or transport of American arms and other military equipment to nations at war. After Germany invaded Poland in 1939, a fourth Neutrality Act was passed, permitting the sale of arms and other matériel to France and Britain as long as they paid cash and transported the matériel on their own ships (“cash-and-carry”). But by 1941, France was under German control and the United Kingdom was running out of time and money. “Cash-and-carry,” in other words, would no longer be effective in the fight against Nazi Germany. The Lend-Lease Act was soon proposed in Congress, and President Franklin D. Roosevelt signed the bill into law on March 11, 1941. The legislation allowed the president to order any federal agency to “manufacture in arsenals, factories, and shipyards under their jurisdiction, or otherwise procure … any defense article for the government of any country whose defense the President deem[ed] vital to the defense of the United States.” The matériel was provided to U.S. allies for free, for use until they were no longer needed and returned, or were otherwise destroyed. Between 1941 and 1945, the Lend-Lease program distributed more than $50 billion worth of military equipment to U.S. allies (about $30 billion of which went to the United Kingdom), which is almost $900 billion today, when accounting for inflation.