Beltway Buzz, June 28, 2024

New Overtime Rule to Take Effect? Pending a ruling in one of three legal challenges filed in federal court in Texas, phase one of the U.S. Department of Labor’s (DOL) changes to the regulations implementing the Fair Labor Standards Act’s (FLSA) overtime requirements is scheduled to go into effect July 1, 2024. That initial change will raise the salary basis threshold to $43,888 per year, meaning that employees earning less than that are automatically eligible for overtime time pay. Beginning on January 1, 2025, the threshold is scheduled to increase to $58,656 per year.

Cassidy to Sanders: Hold Hearing on NLRB Nominees. Like the summer temperatures, the politics regarding the potential confirmation of National Labor Relations Board (NLRB) Chair Lauren McFerran to another term are heating up. Because the U.S. Congress will be spending much of the second half of the year on the campaign trail and wrapping up “must pass” legislation (such as government funding), Senate Majority Leader Chuck Schumer (D-NY) is expected to push for a confirmation vote on McFerran sooner rather than later. Ahead of any vote, Republicans in the U.S. Senate are hoping to get an opportunity to question McFerran about the direction she has taken the Board (as well as to examine the bona fides of Republican nominee Joshua Ditelberg). This week, Senator Bill Cassidy (R-LA), ranking member of the Senate Committee on Health, Education, Labor and Pensions, sent a letter to the chair of the committee, Senator Bernie Sanders (I-VT), requesting that he schedule a hearing on the two Board nominees. In the letter, Senator Cassidy argues that McFerran has demonstrated a “clear preference for unions, bias against employers, and glaring indifference toward the rights of workers who do not actively want a labor union” and that the “Committee should come together to question Chair McFerran about her tenure on the Board.”

Appropriations Season. It’s appropriations season in the U.S. House of Representatives as lawmakers are looking ahead to the September 30, 2024, deadline for current government funding. In the interim, Congress is scheduled to be out next week for Independence Day, a week in mid-July for the Republican National Convention, and five weeks beginning in early August. This leaves only six weeks during which the House and Senate will be in session in Washington, D.C., prior to the September 30 deadline. In bills released this week by House subcommittees in charge of appropriating funds to federal labor and employment agencies, Republican lawmakers are proposing to use their power of the purse to limit the DOL, NLRB, and the U.S. Equal Employment Opportunity Commission from implementing and enforcing various workplace-related regulations and policies. For example, a bill debated during a markup hearing on Thursday would prohibit the DOL from implementing or enforcing its independent contractor, overtime, and walkaround regulations. The NLRB would also be prohibited from implementing and enforcing its joint employer regulation, and from using any funds “to issue any new administrative directive or regulation that would provide employees any means of voting through any electronic means in an election to determine a representative for the purposes of collective bargaining.” While most of these appropriations riders face an uphill climb in getting enacted into law, the prohibition on electronic voting has been included and maintained in recent funding cycles.

Court Enjoins Davis-Bacon Regulation Provisions. This week a federal court issued a nationwide order enjoining the DOL from implementing and enforcing certain provisions of its changes to the Davis-Bacon Act (DBA) regulations finalized in August 2023. Specifically, the court struck down a provision of the regulation that applied DBA prevailing wage requirements to projects operating under contracts that do not expressly include such requirements, noting that this provision was contrary to the text of the statute, and is “not consistent with basic contract and procedural due process principles.” The court also ruled that by extending DBA to cover trucking operations, the DOL enacted a “fundamental change to the Act by adding ‘transportation’ as a category of work covered by DBA, contrary to the congressional limitations of DBA to covering only mechanics and laborers employed directly on the site of work.” Suffice it to say that the court wasn’t happy with the DOL, writing, “Defendants engaged in egregious violations of Article II, section 3 of the Constitution, because rather than taking care to faithfully execute the DBA, Defendants instead usurped Congress’ law-making power and attempted substantive amendments to the DBA.”

Fed Contractor Affirmative Action Compliance. Covered supply and service federal contractors have until Monday, July 1, 2024, to certify their compliance with their affirmative action requirements. The Office of Federal Contract Compliance Programs’ (OFCCP) requirement, which debuted in 2022, is in response to a 2016 U.S. Government Accountability Office report that recommended that OFCCP “develop a mechanism to monitor AAPs from covered federal contractors on a regular basis.” Contractors can visit the OFCCP’s contractor portal’s Frequently Asked Questions resource for more information.

Equal Time. The debate that took place this past week between President Biden and former president Trump was tightly controlled not just by the two campaigns but also by federal laws and regulations. The Radio Act of 1927, later superseded by the Communications Act of 1934, established the “equal time rule,” which requires radio and television stations to provide political candidates equal access to airtime. This rule has had an impact on presidential debates and campaigns since. In 1959, Congress amended the Communications Act to create exceptions to the equal time rule if the coverage comes in the form of a bona fide newscast, news interview, documentary, or on-the-spot coverage of a news event. Because political debates did not fall within these exceptions, Congress passed a joint resolution to waive the equal time rule in 1960 in order to limit the Kennedy-Nixon debates to those two candidates and exclude third parties. The Federal Communications Commission subsequently modified its rules to include debates within the “news event” exception, as long as those debates are sponsored or put on by a third party, such as the Commission on Presidential Debates, and not the stations themselves. The equal time room has required stations to pull content featuring political candidates—such as Ronald Reagan, Arnold Schwarzenegger, Donald Trump, Mehmet Oz, and Fred Thompson—while they campaigned for office.

The Buzz will be on hiatus next week but will return on July 12, 2024.