Beltway Buzz, October 25, 2024

FTC Appeals District Court’s Ruling Blocking Noncompete Reg. Litigation over the Federal Trade Commission’s (FTC) regulation banning noncompete agreements continues to develop. Last week, the Buzz discussed how a plaintiff’s abandonment of a legal challenge to the rule provides some clarity for employers and helps to guard against a possible circuit court ruling in favor of the FTC. Shortly thereafter, the FTC appealed a Texas district court’s ruling that blocked the regulation to the U.S. Court of Appeals for the Fifth Circuit. The FTC has also appealed a Florida case to the U.S. Court of Appeals for the Eleventh Circuit. The current nationwide injunction remains in place as the appeals move forward. Christine Bestor Townsend, Scott R. McLaughlin, and Zachary V. Zagger have the details.

OSHA Issues Expanded Meatpacking Guidance. On October 15, 2024, the Occupational Safety and Health Administration (OSHA) released its Inspection Guidance for Animal Slaughtering and Processing Establishments, which expands previous guidance on the issue by including all animal slaughtering and processing facilities. According to the guidance, “The goal of this initiative is to significantly reduce injuries and illnesses resulting from occupational hazards, through a combination of enforcement, compliance assistance, and outreach.” The guidance focuses on identifying hazards in these industries relating to ergonomics, lock-out/tag-out, personal protection equipment, and recordkeeping, among other things. The guidance instructs inspectors to focus on “second and third-shift operations, such as sanitation services,” as well as “[c]ontractors and temporary workers who provide” such services. The guidance also references OSHA’s controversial “walkaround regulation”—currently being challenged in federal court—by encouraging OSHA inspectors to identify and include “employee representatives in the inspection process.” Finally, the guidance instructs inspectors to make referrals regarding any potential wage and hour, child labor, retaliation, or immigration-related violations.

Congressional Dems Seek Quicker Processing of Employment Authorization Documents (EADs). This week, congressional Democrats sent a letter to U.S. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas and U.S. Citizenship and Immigration Services (USCIS) Director Ur Jaddou, urging DHS “to ramp up … efforts to eliminate the ongoing work permit backlog before the end of President Biden’s term.” The lawmakers claim in the letter that there is a backlog of 1.4 million EADs awaiting processing. Accordingly, the letter encourages DHS to “surge additional resources to EAD processing” that could be used to “ramp up investments in technological improvements to streamline processing” and to hire “additional full-time staff and contractors, detailing staff from other agencies, and approving more overtime.” The letter also urges DHS to finalize and make permanent a rule allowing for an automatic extension period for expired work permits of 540 days, and perhaps make that grace period as long as 730 days.

Foxx Questions Su on IC and “Worker Center” Policies. Representative Virginia Foxx (R-NC), chair of the House Committee on Education and the Workforce, as well as other Republican members on the committee, continue to press Acting Secretary of Labor Julie Su on the U.S. Department of Labor’s (DOL) policy priorities:

• In an October 16, 2024, letter to Su regarding the DOL’s independent contractor regulation, Foxx noted that the agency’s previous response to a subpoena seeking information on the matter was inadequate. Foxx wrote, “DOL’s most recent response amounts to a failure to comply with the subpoena and is another glaring example of the Biden-Harris administration’s hostility to Congress and its duty to conduct oversight.” Specifically, the subpoena—and the follow-up letter—demand data relating to DOL misclassification enforcement efforts.
• In an October 17, 2024, letter to Su, Rep. Foxx and Subcommittee on Health, Employment, Labor, and Pensions Chairman Bob Good (R-VA) take exception with the DOL’s Office of Labor-Management Standards (OLMS) continued treatment of “worker centers.” According to the letter, such groups “may allow labor unions to evade disclosure requirements that are otherwise required for traditional unions, allowing unions to engage in activities that blur the line between traditional organizing and political activism.” The letter notes that the most recent version of the OLMS Interpretive Manual has both changed the definition of “labor organization” under the Labor-Management Reporting and Disclosure Act (LMRDA) (thereby allowing worker centers—labor unions by a different name to avoid their reporting requirements) and specifically “exempted several worker centers from LMRDA disclosure requirements by listing them by name in the text of the manual.” The letter seeks information on how OLMS came to these conclusions.

The letters foreshadow issues that will likely be Republican priorities in 2025, particularly if they gain control of the executive branch.

Republican Senator Seeks Answers From EEOC on Enforcement Efforts Addressing Workplace Antisemitism. This week, U.S. Senator Bill Cassidy (R-LA), ranking member of the Senate Committee on Health, Education, Labor and Pensions (HELP), sent a letter to Charlotte Burrows, chair of the U.S. Equal Employment Opportunity Commission (EEOC), urging her “to address religion-based discrimination charges to protect Jewish and Israeli workers in the face of rising antisemitism.” The letter asks Burrows to provide a more specific breakdown of the religion-based discrimination charges the EEOC has received and pursued since the October 7, 2023, terror attack on Israel.

Bills, Bills, Bills. The U.S. House of Representatives just did something that it hasn’t done in nearly fifty years: introduce a bill—H.R. 10000, the Sexual Assault Nurse Examiner in VA Hospitals Act of 2024—that has a five-digit bill number. The last time the House did this was in the first session of the 95th Congress in 1977. The first twenty H.R. bill numbers are reserved for both the House Speaker and minority leader for priority bills (in early 2025, no matter who is in charge of the House, we are likely to hear a lot of discussion about which bill will be H.R. 1), but those haven’t all been used, so accounting for that, the number of bills introduced in the House so far this session is 10,010. Of course, the high bill tally can be attributed, at least in part, to Representative Andy Biggs (R-AZ), who introduced 521 budget-related bills all on one day in 2023.

The Buzz is on hiatus next week, but we will be back with our 2024 election analysis on November 8, 2024.