Beltway Buzz, April 8, 2022

KBJ Makes History. On April 7, 2022, the U.S. Senate confirmed Judge Ketanji Brown Jackson to be an associate justice of the Supreme Court of the United States. Judge Jackson was confirmed by a vote of 53–47, with Republicans Susan Collins (Maine), Lisa Murkowski (Alaska), and Mitt Romney (Utah) all voting for confirmation. Judge Jackson will be the first female African-American justice on the Court— a momentous occasion in U.S. judicial history. Of course, Judge Jackson will have to wait a few weeks until Justice Stephen Breyer officially steps down, at which time she can be appointed to fill the vacancy.

NLRB GC to Target Employer Speech. On April 7, 2022, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum to regional offices on “The Right to Refrain from Captive Audience and other Mandatory Meetings.” In the memo, Abruzzo writes “when employees are (1) forced to convene on paid time or (2) cornered by management while performing their job duties” they are “deprived of their statutory right to refrain, and instead are compelled to listen by threat of discipline, discharge, or other reprisal—a threat that employees will reasonably perceive even if it is not stated explicitly.” General Counsel Abruzzo states that she will be submitting to the Board a brief in which she will recommend that “the Board adopt sensible assurances that an employer must convey to employees in order to make clear that their attendance is truly voluntary.”

Board Sees Increase in Both Representation Petitions and ULPs. In other traditional labor news, the Board announced this week that in the last six months (from October 2021 to March 2022, the first half of federal fiscal year 2022), there has been a 57 percent increase in the filing of union representation petitions compared with the same time period last year (1,174 filed petitions compared to 748). The Board also announced that during the same period, there has been a 14 percent uptick in unfair labor practice charges (from 7,255 to 8,254). The Board does not offer reasons for the increases, though the Buzz has some ideas.

POTUS Announces Nominee for EEOC. On April 1, 2022, President Biden announced his intention to nominate plaintiffs’ attorney Kalpana Kotagal to be a commissioner on the U.S. Equal Employment Opportunity Commission (EEOC). If confirmed, Kotagal would replace Commissioner (and former EEOC chair) Janet Dhillon, whose term expires on July 1, 2022. Kotagal’s confirmation would also tilt the EEOC’s majority in favor of Democrats for the first time since late 2018. The current “upside down” makeup of the Commission—a Democratic chair (Charlotte Burrows) who is in the voting minority—has created a bit of a policy logjam. But this logjam will break when the Commission flips to three Democrats and two Republicans, and issues like payroll data collection, regulations on employer wellness programs, and a renewed interest in sexual harassment guidance are likely priorities.

Immigration Legal EAGLEs. On April 6, 2022, the House Committee on the Judiciary passed the Equal Access to Green cards for Legal Employment (EAGLE) Act of 2021 (H.R. 3648). A previous version of the bill, called the Fairness for High-Skilled Immigrants Act of 2020, passed the U.S. House of Representatives (in 2019) and the U.S. Senate (in 2020), but the 116th Congress adjourned before the two bills could be reconciled in conference committee. The Buzz shared some of the details of the bill previously.

Good as Gold.  89 years ago this week, President Franklin D. Roosevelt signed Executive Order 6102 “Requiring Gold Coin, Gold Bullion and Gold Certificates to Be Delivered to the Government.” Issued just weeks after FDR’s inauguration, and in the middle of the Great Depression, the order prohibited “the hoarding of gold coin, gold bullion, and gold certificates within the continental United States by individuals, partnerships, associations and corporations.” The order gave individuals less than one month to turn over all but a small amount of gold to the federal government in exchange for the payment of $20.67 per troy ounce (approximately $450 today). FDR and proponents argued that nationalizing the gold was necessary to allow the federal government to print more money to help stimulate the economy. This restriction on private ownership of gold lasted over 40 years, until it was legalized by federal statute in 1974.

The Buzz will be on hiatus next week but will return on April 22, 2022.