The Capitol - Washington DC

Congress: House Departs With Funding Deadline on the Horizon. This week, the U.S. Senate passed a $95 billion aid package for Ukraine, Israel, and Taiwan that did not include the immigration-related provisions the Buzz discussed last week. It is unclear at this moment how the U.S. House of Representatives plans to address the bill. It may be a while before we know more, too, as the House is out for its Washington’s Birthday recess and not scheduled to return until February 28, 2024. (The Senate returns two days earlier on February 26.) This leaves little time for legislators to pass legislation to keep the federal government from partially shutting down on March 1, 2024. And funding for the remainder of the federal government—including the U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), U.S. Equal Employment Opportunity Commission (EEOC), and U.S. Department of Homeland Security (DHS)—is set to expire one week later, on March 8, 2024.

OSHA Walkaround Reg. Moves Forward. On February 9, 2024, the Occupational Safety and Health Administration (OSHA) transmitted its final “walkaround” regulation to the Office of Information and Regulatory Affairs for review. This is the final step in the rulemaking process and indicates that publication of the final rule will happen shortly. The Buzz expects one or more employer groups to file a legal challenge to the final rule. In addition to the employer community, the proposal remains controversial among Republicans on Capitol Hill. In a February 12, 2024, letter to Acting Secretary of Labor Julie Su, Representative Virginia Foxx (R-NC), chair of the House Committee on Education and the Workforce, wrote the following:

The proposed walkaround rule puts politics first by promoting Big Labor’s interests, interferes in labor-management relations, increases costs, puts union bosses ahead of workers, and overturns longstanding regulations. DOL should stop putting its political goal of promoting unionization at all costs ahead of keeping workers safe.

Top Senate HELP Committee Republican Wants Hearing for Su. Senate Republicans continue to express concerns that President Biden’s renomination of Julie Su to be secretary of labor circumvents their advice and consent function. This week, Senator Bill Cassidy (R-LA) requested that Senator Bernie Sanders (I-VT), the chair of the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), hold a hearing on Su’s renomination:

Therefore, I respectfully request that you hold a hearing for Ms. Su’s renomination so that Senators may question her record, and that you hold a public mark-up on her nomination. Any other act will circumvent this Committee’s constitutionally mandated advice and consent role for Presidentially-appointed, Senate-confirmed (PAS) positions.

Senator Cassidy maintains that a hearing is necessary because “Ms. Su’s tenure as Acting Secretary has been plagued by ill-advised policy decisions and consistent mismanagement.” According to Senator Cassidy’s letter, examples of these missteps include delayed H-2B visa approvals, “missed red flags of exploitative child labor practices,” a $127 million overpayment to the Teamsters pension fund, the aforementioned walkaround regulation, Davis-Bacon prevailing wage regulations, and the DOL’s new independent contractor rule and overtime proposal.

DOL Extends Comment Period for Schedule A Listed Occupations. On February 15, 2024, the DOL’s Employment and Training Administration (ETA) published a notice extending the comment period for its request for information (RFI) regarding potential changes to its Schedule A list of occupations for the permanent labor certification process. The original comment period was scheduled to close on February 20, 2024 (sixty days after publication of the RFI), but that period has been extended to May 13, 2024. According to the notice, ETA is extending the comment period because it “has received a very limited number of comments, many of which do not provide the information requested or address the questions raised in the RFI.” Additionally, the notice states that the AFL-CIO requested an extension.

Democratic AGs Petition OSHA for Heat Rule. As the administration works to advance its regulatory agenda ahead of the November elections, late last week a group of Democratic attorneys general petitioned OSHA “to issue an emergency temporary standard for occupational heat exposure for farmworkers and construction workers, at minimum, beginning May 1, 2024.” (Many of the same attorneys general petitioned OSHA last year with the same request for an occupational heat ETS for agricultural and construction workers.) Readers who remember OSHA’s failed “vax-or-test” COVID-19 emergency temporary standard likely recall that to issue such a standard—which would not require prior input from stakeholders—OSHA must demonstrate that heat presents a “grave danger” to employees and that an emergency temporary standard (ETS) is necessary to protect employees (and the ETS would expire after six months). The petition maintains that “extreme heat poses a disproportionately grave danger to farmworkers and construction workers, especially during the summer months, and an emergency temporary standard is necessary to protect these workers from such danger.” While OSHA has completed its required Small Business Advocacy Review (SBAR) panel, the most recent regulatory agenda does not set a target date for issuance of a heat stress notice of proposed rulemaking.

House Committee Examines Wage and Hour Issues. On February 14, 2024, the House Committee on Education and the Workforce’s Subcommittee on Workforce Protections held a hearing entitled “Examining the Policies and Priorities of the Wage and Hour Division.” The sole witness at the hearing was the DOL’s Wage and Hour Division (WHD) administrator, Jessica Looman. Republican members focused on many of the same issues raised in Senator Cassidy’s letter but with an obvious focus on WHD matters, such as the independent contractor, overtime, and Davis-Bacon Act regulations, as well as child labor issues, particularly when they’ve involve immigrant minors. The hearing will likely help to lay the groundwork for the introduction of Congressional Review Act resolutions.

Political Reality Check. While the current political acrimony on Capitol Hill appears to be at an all-time high, it can be helpful to remember that our national politics have always been rancorous (there was a Civil War, after all) and at times have devolved into physical altercations. There was, of course, Representative Preston Brooks’s brutal attack on Senator Charles Sumner in 1856. And even prior to that, there was an unfortunate altercation that occurred this week in 1798 in the U.S. House of Representatives. The incident arose when, during deliberations surrounding the impeachment of Senator William Blount, Representative Matthew Lyon of Vermont loudly insulted the Connecticut delegation on the House floor. Connecticut Representative Roger Griswold responded by alleging that Lyon’s military service during the Revolutionary War was less than admirable, to which Lyon responded by spitting tobacco juice in Griswold’s face. When a subsequent vote to expel Lyon for “disorderly behavior” failed, Griswold took matters into his own hands and attacked Lyon with a cane on the morning of February 15, 1798, and a brawl ensued. Amazingly, both Lyon and Griswold were allowed to keep their seats in the House. Later that year, Lyon was imprisoned for violation of the Alien and Sedition Acts (for writings critical of President John Adams) but still managed to win reelection—the only member of Congress to ever win an election while in jail.

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