Beltway Buzz, April 19, 2024

SCOTUS: “Significant” Harm Not Necessary to Advance Title VII Claims. On April 17, 2024, the Supreme Court of the United States issued a decision that could increase plaintiffs’ abilities to bring discrimination claims under Title VII of the Civil Rights Act of 1964. In Muldrow v. City of St. Louis, the plaintiff police officer alleged that she was discriminated against when she was forced to transfer to a new position with less desirable responsibilities, a different schedule, and fewer perks. The City of St. Louis argued—and the U.S. Court of Appeals for the Eighth Circuit held—that the forced job transfer was not discriminatory because the plaintiff retained her rank, salary, and benefits. The Supreme Court reversed, holding that “the transferee does not have to show … that the harm incurred was ‘significant,’ … [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” Tiffany Cox Stacy, Morgan Pike Epperson, and Zachary V. Zagger have the details on what the case means for employers.

EEOC Issues Final Pregnancy Accommodation Regulations. On April 19, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published regulations implementing the Pregnant Workers Fairness Act (PWFA). The PWFA, which was passed by the U.S. Congress in late 2022 and has been in effect since June 2023, “[r]equires a covered entity to make reasonable accommodation to the known limitations of a qualified employee related to pregnancy, childbirth, or related medical conditions, absent undue hardship.” The final regulations largely track with the Commission’s proposal by provide specific definitions to these specific words, terms, and phrases (such as who is a “qualified employee” and what is a “related medical condition”). The regulations also provide examples of the types of accommodations, including but not limited to, allowing for more frequent breaks and standing/sitting, light duty, leave, and “temporarily suspending one or more essential functions of the position.” The final regulation includes “interpretive guidance” that is incorporated into the rule. The guidance includes more than seventy-five examples of hypothetical situations involving how the PWFA and EEOC’s implementing regulations might apply in the workplace. Charles L. Thompson, IV, Christine Bestor Townsend, Stacy M. Bunck, Tiffany Cox Stacy, Tina M. Bengs, and Zachary V. Zagger have authored a comprehensive article on the EEOC’s final rule and interpretive guidance.

Noncompete Ban Coming Soon? The Federal Trade Commission (FTC) announced this week that on Tuesday, April 23, 2024, at 2:00 p.m. (EDT), it “will vote on whether to issue a proposed final rule that would prevent most employers from enforcing noncompetes against workers.” The press release describes the FTC’s unique meeting and regulatory process as follows:

At the start of the meeting, the Commission will vote on whether to authorize public disclosure of the proposed final rule that is under consideration. Then, Chair Khan will offer brief remarks. Next, if the Commission votes to authorize public disclosure of the final rule under consideration, the Office of Policy Planning will give a staff presentation on the final noncompete rule under consideration. Finally, the Commission will vote on whether to issue the final rule.

This will obviously be a significant rulemaking, and readers can refresh their recollections of the details of the proposal here. The final rule is likely to be the subject of legal challenges. Christine Bestor Townsend, Scott R. McLaughlin, and Tobias E. Schlueter have provided additional analysis.

MSHA Finalizes Respirable Crystalline Silica Rule. On April 18, 2024, the U.S. Department of Labor’s (DOL) Mine Safety and Health Administration (MSHA) finalized its regulation, “Lowering Miners’ Exposure to Respirable Crystalline Silica and Improving Respiratory Protection.” The final rule establishes a “permissible exposure limit (PEL) of respirable crystalline silica at 50 micrograms per cubic meter of air (µg/m3) for a full-shift exposure, calculated as an 8-hour time-weighted average (TWA) for all mines.” The final rule also requires mine operators to (1) conduct sampling for respirable crystalline silica; (2) install, use, and maintain feasible engineering controls as the primary means of controlling respirable crystalline silica; and (3) immediately report to MSHA and take corrective action to lower the concentration of respirable crystalline silica when an overexposure is identified. The regulation has phased in effective dates, depending on the provision and whether the operator is a coal mine or mental and nonmetal mine.

Su on the Hill. Believe it or not, it is already fiscal year (FY) 2025 spending season, and leaders of various federal agencies made their way to Capitol Hill this week to justify their budget requests before Congress. On April 17, 2024, it was Acting Secretary of Labor Julie Su’s turn, as she advocated for the DOL’s FY 2025 budget request before the House Subcommittee on Labor, Health and Human Services, and Education. Republicans on the committee expressed concerns over DOL’s latest apprenticeship proposal, the Office of Federal Contract Compliance Program’s rescission of the 2020 religious exemption rule, child labor matters, the H-2B visa system, and the DOL’s independent contractor rule, among other topics. With a divided Congress, the FY2 025 government funding negotiations are likely to remain contentious, particularly in an election year.

Something to Crow About. This week, lawmakers flocked to the U.S. Senate floor to pass the Migratory Birds of the Americas Conservation Enhancements Act of 2023 (H.R. 4389). The bill establishes a nest egg of federal grants to protect migratory birds. We will sparrow you all the details of how this bill took flight. However, after the U.S. House of Representatives passed the bill earlier this month, this week senators effectively stated, “toucan play at that game,” by taking their tern to pass the bill. There is no roll call tally of the votes in the Senate, as legislators just winged it by passing the bill via unanimous consent. It was a starling performance.