The Capitol - Washington DC

Fall 2023 Regulatory Agenda Released. This week, the administration issued its Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions, its semiannual forecast of what the regulated community can expect in the next six months. Generally speaking, with the 2024 elections looming, the administration is trying to finalize current regulatory proposals, rather than start new initiatives from the ground floor. Here is what is happening:

U.S. Department of Labor (DOL)

  • Overtime. Changes to the Fair Labor Standards Act’s overtime regulations are expected to be finalized in April 2024.
  • Independent Contractor. The independent contractor regulation, which is expected to result in more workers being classified as employees rather than independent contractors, was supposed to have been issued in November 2023. Obviously, this means that finalization is imminent.
  • Workplace Safety (Occupational Safety and Health Administration (OSHA))
  • Walkaround Representative. The agenda does not list an expected date for finalization of this proposal that would allow union organizers to accompany OSHA officials during workplace inspections.
  • Heat Stress and Illness. While the agenda indicates that OSHA is reviewing the Small Business Advocacy Review Panel report on this issue, there is no date listed for issuance of a notice of proposed rulemaking. (For more on this, see “Small Business Panel Weighs in on OSHA Heat Plans” below.)
  • Office of Federal Contract Compliance Programs (OFCCP). OFCCP’s proposal, “Modernizing Affirmative Action and Nondiscrimination Obligations for Federal Contractors and Subcontractors,” which “will consider modifications in light of Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” has been pushed back to September 2024.
  • Employment Training Administration (ETA). Consistent with President Biden’s executive order on artificial intelligence, ETA is expected to issue at any moment a request for information to solicit “input on whether Schedule A serves as an effective tool for addressing current labor shortages, and how the Department may create a timely, coherent, and transparent methodology for identifying STEM occupations that are experiencing labor shortages.”

National Labor Relations Board (NLRB)

In March 2024, the Board is expected to finalize its rescission of the 2020 “election protection” rule.

U.S. Equal Employment Opportunity Commission (EEOC)

Consistent with the statutory deadline prescribed by the U.S. Congress, the Commission is scheduled to issue regulations implementing the Pregnant Workers Fairness Act by December 29, 2023.

U.S. Citizenship and Immigration Services (USCIS)

  • H-1B Visa Modernization. The agenda does not provide an update on when H-1B modernization proposal might be finalized or whether certain aspects of the proposal might be separated and finalized before other portions of the proposal.
  • Adjustment of Status to Lawful Permanent Residence and Related Immigration Benefits. In March 2024, USCIS is scheduled to issue proposed amendments to its regulations governing adjustment of status to lawful permanent residence in the United States.
  • Fee Schedule. Final changes to fees charged by USCIS for immigration and naturalization benefit requests are expected to be issued in April 2024.

U.S. Department of State

In February 2024, the U.S. Department of State will launch a “pilot program to resume domestic visa renewal for qualified H-1B nonimmigrant visa applicants who meet certain requirements.”

Small Business Panel Weighs in on OSHA Heat Plans. A Small Business Advocacy Review (SBAR) panel convened by OSHA this summer has issued its report on the small business impacts of a potential indoor/outdoor heat standard. Generally speaking, the report encourages OSHA, if it issues a proposed heat standard, to allow for flexibility with regard to how employers address heat risk in the workplace. The report states that a requirement for employers to develop a written heat injury and illness prevention program should allow “employers the flexibility to tailor their plans to their specific industry, location, and activities” and that “OSHA [should] offer flexibility to allow employers to implement controls that are feasible and appropriate for their workplace and activities.”

Bipartisan Bill Would Amend Discrimination Tests. This week, a bipartisan group of members of the U.S. House of Representatives reintroduced the Protecting Older Workers Against Discrimination Act of 2023. The bill would do more than address discrimination against older workers, as it would amend not only the Age Discrimination in Employment Act of 1967, but also Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973. Specifically, the bill would allow for “mixed motive” causes of action when employees allege that they were discriminated on the basis of their age, disability, or when they allege that they were retaliated against for opposing an unlawful employment practice. The House passed a similar version of the bill in 2020.

Congress Declares War. Today in 1941, one day after the attack on Pearl Harbor, the United States declared war against Japan. The joint resolution passed the U.S. Senate by a vote of 82–0 and the House by a vote of 388–1 (the lone nay vote in the House was cast by Jeannette Rankin of Montana). Article One, Section Eight of the U.S. Constitution provides that “Congress shall have Power … To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Including the declaration of war against Japan, Congress has exercised this authority eleven times. The first declaration of war was issued in June 1812 against “the United Kingdom of Great Britain and Ireland and the dependencies thereof.” The last time Congress formally declared war was on June 5, 1942, against Bulgaria, Hungary, and Romania over their cooperation with the Axis powers during World War II.

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