Beltway Buzz, August 9, 2024

Congress: Gone ’Til September. The U.S. Senate wrapped up business last week and has joined the U.S. House of Representatives on August recess. The U.S. Congress isn’t scheduled to return to Washington, D.C., until September 9, 2024. Congress is scheduled to be in session for three weeks in September before members hit their respective campaign trails, and then won’t return until after the November elections.

Writing’s on the Walz. Vice President Kamala Harris has selected Minnesota Governor Tim Walz as her running mate in the upcoming presidential election. A former teacher and member of the Army National Guard, Walz represented Minnesota’s First District in the U.S. House of Representatives from 2007 to 2019 before becoming governor. Upon the announcement of Walz’s selection, the AFL-CIO announced its support, describing Walz as “an ally to the labor movement, but also our union brother with a deep commitment to a pro-worker agenda.” As governor, Walz signed legislation banning noncompetes, providing for paid sick leave, and instituting workplace safety measures in the warehouse industry. Walz also signed legislation providing for paid family and medical leave and also limiting employers’ ability to speak with employees about the pros and cons of unionization. A Harris-Walz administration would likely carry on—and push forward—the Biden labor and employment agenda.

NLRB Nominees Poised for Senate Vote. Late last week, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted to approve the nominations of Lauren McFerran and Joshua Ditelberg to the National Labor Relations Board (NLRB). The votes, which were held behind closed doors and without the benefit of a hearing, tee up the nominees for a floor vote by the full Senate (those potential votes have not been scheduled). McFerran squeaked by on an 11–10 party-line vote, with all Republicans voting against her, including Alaska Senator Lisa Murkowski and Maine Senator Susan Collins, both of whom voted in favor of McFerran’s nomination on the Senate floor in 2020. Other current Republicans who voted for McFerran in 2020 included John Cornyn (TX), Steve Daines (MT), Lindsey Graham (SC), and Dan Sullivan (AK). If all of these Republicans vote against McFerran this time around, and Senator Manchin sticks to his vow not to support partisan nominees, a confirmation vote on McFerran could be very, very close.

NLRB GC Issues Memo on Disclosure and Privacy Requirements for Higher Ed. On August 6, 2024, NLRB General Counsel Jennifer Abruzzo issued a memo, entitled, “Clarifying Universities’ and Colleges’ Disclosure Obligations under the National Labor Relations Act and the Family Educational Rights and Privacy Act.” The memo addresses the impact of the Family Educational Rights and Privacy Act of 1974 (FERPA)—which protects the privacy of student education records—on certain educational institutions’ obligations under the National Labor Relations Act (NLRA) to provide labor unions with particular information in certain situations. According to the memo, if a union “seeks information protected by FERPA, the institution must offer a reasonable accommodation in a timely manner and bargain in good faith with the union toward a resolution of the matter.” The memo also includes a voluntary FERPA consent template that student-employees can sign at the start of their employment. According to Abruzzo, this form will “reduce delay and obviate the need to seek students’ consent at the time a union seeks to represent employees or submits an information request to carry out its representative functions.” The memo tracks with the current Board’s predilection for categorizing college students and athletes as employees.

House Bill Creates New Penalties, Increases Existing Penalties, for Employers. Democrats in the U.S. House of Representatives introduced the “Labor Enforcement to Securely (LET’S) Protect Workers Act” (H.R. 9137), which would increase penalties on employers that violate federal labor and employment laws. For example, the bill would:

• increase the statutory maximum civil money penalty for wage and hour violations from $1,100 (currently adjusted for inflation to $2,451) to $25,000 for each violation;
• increase the maximum penalty for a serious violation under the Occupational Safety and Health Act would increase from $7,000 (currently adjusted for inflation to $16,131) to $80,000 per violation;
• create a new penalty for employers committing unfair labor practices under the NLRA of $50,000 for each violation; and
• resuscitate OSHA’s so-called “Volks” rule, which extended the period during which OSHA could issue citations for recordkeeping violations and which was rescinded by Congress in 2017.

For now, the bill doesn’t stand a chance in the Republican-controlled House, but could be something to watch in 2025, depending on the results of the November elections.

Come to Your Census. Late last week (August 2) in 1790, the first U.S. census began. Article I, Section 2 of the United States Constitution requires that an “Enumeration” of the people shall be conducted every ten years to determine the proper allotment of the House of Representatives. Since that first census, an additional twenty-three censuses have been conducted. The census was originally conducted by the U.S. Marshals Service, but the enactment of the Census Act of 1840 gradually shifted these duties to a centralized office that is now the Census Bureau, housed within the U.S. Department of Commerce. The next census will take place in 2030, and even though that seems like a long time from now, you might want to mark your calendar: failure to respond can result in a $5,000 penalty.