Beltway Buzz, November 22, 2024

Congressional Update. Like many Americans, our nation’s lawmakers are heading home this weekend for Thanksgiving. During these last two weeks—which represent the start of the brief post-election “lame duck” session—the U.S. Senate has confirmed several nominees to lifetime appointments on the federal bench. (Multiple Republicans—including Vice President-elect J.D. Vance—simply didn’t show up for these votes, which helped Democrats get their nominees through.) So when the U.S. Congress returns for the week beginning December 2, 2024, for a scheduled three-week run, the Buzz will be monitoring two major unfinished issues: a potential reconfirmation vote on the nomination of Lauren McFerran for a new term on the National Labor Relations Board (NLRB) and a continuation of government funding, which is currently set to expire on December 20, 2024.

Federal Court Strikes Down Overtime Rule. Late last week, the U.S. District Court for the Eastern District of Texas struck down the overtime regulation that the U.S. Department of Labor (DOL) finalized in April 2024. Just as in 2017, when the same court invalidated a similar overtime regulation finalized by the Obama administration, the court determined that the rule’s dramatic increase to the salary threshold improperly eviscerated Congress’s intent in creating the executive, administrative, and professional (EAP) exemption: “The Department simply does not have the authority to effectively displace the duties test with such a predominant salary-level test.” The court wrote that this analysis also applies to the rule’s increase to the highly compensated employee level. Finally, regarding the automatic increase to the salary level every three years, the court ruled that Congress never authorized the DOL “to use indexing as a means to place on autopilot its obligation to define and delimit the EAP Exemption” and it also “violates the notice-and-comment rulemaking requirements of the [Administrative Procedure Act.]” The court invalidated the rule in its entirety, including the increase to the salary threshold that became effective on July 1, 2024. Keith E. Kopplin and Zachary V. Zagger have the details.

Port Negotiations Stall. As the Buzz previously discussed, a pre-holiday season strike at ports along the East Coast and Gulf Coast was avoided when the International Longshoremen’s Association (ILA) and an employer group agreed to a six-year wage increase while continuing to negotiate for a new contract. Now these negotiations have broken down over disagreements about automation and technology at the ports. The ILA claims that they “embrace technologies that improve safety and efficiency, but only when a human being remains at the helm,” while the employer group has stated that they “are not seeking technology that would eliminate jobs” but instead want to “improve worker safety, increase efficiency in a way that protects and grows jobs, keeps supply chains strong, and increases capacity that will financially benefit American businesses and workers alike.” The existing contract expires on January 15, 2025, at which time the union could go on strike.

House Committee Advances Anti-DEI Act. This week, the House Committee on Oversight and Accountability advanced the Dismantle DEI Act of 2024 (S.4516), which would eliminate diversity, equity, and inclusion (DEI)-related programs throughout the federal government. The bill also would prohibit federal contractors from using federal money to maintain DEI officers and programs, and it would prohibit federal contract performance in locations that are “subject to, or required to comply with, a prohibited diversity, equity or inclusion practice.” Back in June of this year, the Buzz noted that the bill “could receive attention if the Republicans gain control of Congress following the November 2024 elections.” The Buzz stands by this statement and maintains that the bill represents a sign of things to come in 2025. Employers can expect significant scrutiny of their DEI programs, whether from the White House via the federal contracting procurement process, agencies such as the U.S. Equal Employment Opportunity Commission (EEOC) or Office of Federal Contract Compliance Programs (OFCCP) pursuing “reverse discrimination” allegations, or legislation—such as this bill—and investigations in Congress.

OSHA Developments. Two of the Occupational Safety and Health Administration’s (OSHA) regulatory proposals took significant steps forward recently:

• Infectious Diseases. OSHA’s proposed rule “to protect employees from exposure to pathogens that can cause significant infectious disease” has advanced to the Office of Information and Regulatory Affairs (OIRA) for review. This means that a proposal might be issued before the end of the Biden administration, though the incoming Trump administration will obviously determine the proposal’s fate.

• Personal Protective Equipment in Construction. Also at OIRA is OSHA’s final rule relating to personal protective equipment (PPE) in construction. This stage of OIRA review is the last step in the rulemaking process prior to finalization. The final rule is expected to focus on ensuring that PPE fits properly on smaller workers, particularly women. At this point, it is not clear whether any final rule will be promulgated before the end of the current administration or how the new administration may react.

A Round of A-Paws for Congress. This week, the Senate passed the Working Dog Commemorative Coin Act. The bill, which passed the House earlier this year and now heads to President Joe Biden’s desk, honors the contributions of military K-9s and other service dogs. The bill instructs the secretary of the treasury to mint commemorative coins that will be legal tender but sold for a premium, with the “profits” going to a service dog organization. So, while the Buzz often pokes fun at members of Congress for chasing their tails, this week’s effort by members of the Senate demonstrates that bipartisanship is still paws-ible. And even though it has likely been a ruff few weeks for senators who lost reelection, they can be proud that passage of the bill was a mastiff accomplishment.

The Buzz will be on hiatus next week but will return on December 6, 2024.