Beltway Buzz, December 6, 2024

The Race to Wrap Up the 118th Congress. The U.S. Congress is back in Washington, D.C., this week after legislators spent last week at home on Thanksgiving break. Legislators are scheduled to remain in town until December 20, 2024, but that date can be moved up or pushed back, depending on how quickly they address their outstanding issues. So what is in store for Congress during this three-week sprint? As the Buzz has mentioned over these recent weeks, funding for the federal government expires in fourteen days (on December 20). There is also the national defense authorization bill, the farm bill, and disaster relief. Finally, of particular significance for the Buzz, the U.S. Senate has made it through another week without acting on the nomination of Lauren McFerran to remain on the National Labor Relations Board (NLRB). However, Senator Charles Schumer (D-NY) has stated publicly that confirming McFerran is one of his “highest priorities.”

DOL Appeals Decision Striking OT Regulations. The U.S. Department of Labor (DOL) has appealed the November 2024 decision of the U.S. District Court for the Eastern District of Texas to strike down the April 2024 overtime rule in its entirety. While nothing is guaranteed, many are expecting the incoming administration to drop the appeal. Keith E. Kopplin, Charles E. McDonald, III, and Zachary V. Zagger have the details.

DOL Proposes Eliminating Subminimum Wage for Individuals With Disabilities. On December 4, 2024, the DOL issued a notice of proposed rulemaking entitled, “Employment of Workers With Disabilities Under Section 14(c) of the Fair Labor Standards Act.” The regulation would eliminate “14(c) certificates” that allow employers to pay subminimum wages to workers with disabilities. When Congress enacted the Fair Labor Standards Act in 1938, this provision was included to ensure that individuals with disabilities could secure employment opportunities. Now, through this proposal, DOL maintains that the certificates are no longer necessary because, “Although it is widely acknowledged that individuals with disabilities continue to face challenges in obtaining equal opportunity and treatment, the extent of legal protections opportunities, resources, training, technological advancements, and supports has dramatically expanded since 1989, when the DOL’s regulation was last substantively updated, to assist individuals with disabilities both in obtaining and maintaining employment at or above the full minimum wage.” Comments are due by January 17, 2025, so the fate of the proposal will ultimately be determined by the incoming administration. Charles E. McDonald, III, and Leah J. Shepherd have the details.

More DOL Regulatory Activity. While the DOL’s Wage and Hour Division appeals its overtime regulations and seeks to eliminate 14(c) certificates, other DOL sub-agencies are pulling back on rulemaking efforts. Here is what is happening:

• Employer “Split Income” Reporting. The DOL’s Office of Labor-Management Standards has officially withdrawn its forecasted “split income” employer reporting regulation. The proposal, which was never made public and appeared on the administration’s regulatory agenda for the first time in July 2024, would have required employers to report their “supervisors’ income on a split basis, that is, the pro rata share of the supervisor’s wages that were spent undertaking the reportable activity.”

• DOL Withdraws Apprenticeship Rule. The DOL’s Employment and Training Administration has officially withdrawn its proposed changes to regulations implementing government-registered apprenticeship programs. The proposal, which was introduced in early 2024, was criticized by many in the business community as being overly burdensome and biased in favor of organized labor.

OSHA Extends Deadline to Submit Comments on Heat Proposal. The Occupational Safety and Health Administration (OSHA) has extended the deadline for stakeholders to submit comments to its proposed standard, “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.” The comment docket was scheduled to close on December 30, 2024, but will now close on January 14, 2025. While the brief extension likely has some commenters breathing a sigh of relief, the new deadline will ensure that the docket will close prior to the arrival of the new Trump administration. What the new administration will do with the proposal is unclear at this time, but it assuredly will not be finalized as originally proposed.

Romney Says Goodbye. Senator Mitt Romney (R-UT) delivered farewell remarks in the Senate this week, as he retires after serving one term in the Senate. The former governor of Massachusetts and 2012 Republican presidential candidate was a strong advocate for employers during his time in public service. As senator, he cosponsored the Employee Rights Act of 2022, and as a presidential candidate, Romney criticized the Employee Free Choice Act, project labor agreements, and the Davis Bacon Act, while touting the benefits of right-to-work laws. Romney will be succeeded in the Senate by Republican John Curtis.

The Buzz will be on hiatus next week but will return the following week.