Beltway Buzz, January 8, 2021

Chaos in the Capitol. The calendar may read 2021, but in Washington, D.C., it sure feels a lot like 2020. The spectacle of rioters laying siege to the U.S. Capitol on January 6, 2021, was horrific. The Buzz sincerely hopes that this moment represents the low point in our current politics, that reckoning and reconciliation can take place, and that our political parties can move forward and work together constructively in 2021 and beyond.

2021 Labor and Employment Policy Forecast. As this is the first Buzz edition of 2021, we invite you to review our 2021 Labor and Employment Forecast for additional policy analysis.

50–50 Senate. Democratic victories in the two U.S. Senate runoff elections that took place in Georgia this week means that the 117th United States Congress will get underway with the U.S. Senate evenly split: 48 Democrats (and the 2 independent senators who caucus with them) and 50 Republicans. Of course, once inaugurated, Vice President Kamala Harris will give Democrats a tiebreaking 51st vote in the Senate. Set forth below are some of the ways that this change could influence federal policy developments in the coming months.

• Legislative agenda. The Senate legislative filibuster means that 60 votes are effectively needed to pass legislation in the Senate. As long as the filibuster remains—and multiple Democratic senators have indicated that they are not keen on scrapping it—bills such as the Protecting the Right to Organize (PRO) Act likely will not become law.
• An opportunity for bipartisanship? Senator Charles Schumer (D-NY) will control the legislative agenda in the Senate and might look to pass legislation that has the support of some Republican senators (i.e., at least 10), but which would not necessarily have been brought to the floor under Republican leadership. This could include bills addressing individual stimulus checks, unemployment insurance extension/expansion, protection for DREAMers, pregnancy accommodation, LGBTQ protections, and multiemployer pension reform.
• Nominations. “Personnel is policy” in Washington, D.C., and who is in charge will greatly impact the regulatory agenda. With 50 (plus 1) votes in the Senate, President-elect Joe Biden may be less likely to compromise on his choices of nominees, and he may be able to get them confirmed more expeditiously.
• CRA: Back in play. The Congressional Review Act (CRA) allows Congress—with simple majority votes in each congressional chamber—to rescind “midnight” agency regulations in certain circumstances. Regulations eligible for CRA treatment include, but are not limited to, the final independent contractor regulation (see “Independent Contractor Rule Finalized” below), the Office of Federal Contract Compliance Programs’ (OFCCP) final TRICARE rule, nondiscrimination procedures and religious exemption regulations, and U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Labor (DOL) rules on H-1B reform and prevailing wages.
• Oversight/Investigations. With Democrats controlling the agenda, Senate oversight of the administration could be minimal, which will allow administrative agencies to regulate with less fear of being called to testify before Senate committees to justify their actions.

Biden Selects Secretary of Labor. President-elect Biden announced this week that he would nominate Boston mayor Martin Walsh to be U.S. secretary of labor. Walsh was a former union president and state representative before becoming mayor. Assuming Walsh is confirmed, his top priority will likely be the development of an emergency temporary standard to protect workplaces from COVID-19 (though such a standard may issue even before he is confirmed). If history serves as a guide, former secretary of labor Hilda Solis was confirmed on February 24, 2009—about one month after President Barack Obama’s inauguration.

Independent Contractor Rule Finalized. On January 6, 2021, the DOL’s Wage and Hour Division finalized its independent contractor rule under the Fair Labor Standards Act. The regulation reaffirms the “economic dependence” test when determining whether a worker is an independent contractor or an employee. Steve Pockrass has the details. The effective date of the rule is March 8, 2021, which will obviously be well into President-elect Biden’s term. The rule is eligible for rescission under the CRA, and if Congress does not act, expect the new administration to delay the regulation before repealing it altogether and advancing its own independent contractor proposal.

Immigration News. On the last day of 2020 and in this, the first full week of 2021, the Trump administration advanced two significant immigration-related initiatives.

• Visa bans. On December 31, 2020, President Donald Trump extended two separate bans on certain nonimmigrant and immigrant visas that he instituted in the spring and summer of 2020. Tina Ho has the details.
• H-1B prioritization rule. On January 8, 2021, USCIS published in the Federal Register its final H-1B wage prioritization rule. The regulation replaces the visa lottery system with a wage-based process that prioritizes the selection of H-1B applicants with the highest promised salaries. USCIS reasoned that “prioritizing registrations based on wage level within each cap will incentivize H-1B employers to offer higher wages, or to petition for positions requiring higher skills and higher-skilled aliens that are commensurate with higher wage levels, to increase the likelihood of selection and eligibility to file an H-1B cap-subject petition.” The rule goes into effect 60 days after its publication in the Federal Register, but it is likely to be tied up and reviewed by the incoming administration.

EEOC Issues Wellness Proposals. The workplace wellness policy debate that picked up steam in 2014 took another turn this week. On January 7, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced proposed regulations implementing the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act to address “voluntariness” concerns surrounding workplace wellness programs. In 2017, a federal court ruled that the EEOC’s 2016 wellness regulations did not provide a sufficient explanation to justify its 30 percent wellness program participation incentive cap. Accordingly, this time around, EEOC is proposing—with certain exceptions—that only de minimis incentives be permitted to encourage employee participation in workplace wellness programs. Comments will be due 60 days from the date the proposals are published in the Federal Register.

House Rules. On January 3, 2021, Congresswoman Nancy Pelosi (D-CA) was elected to her fourth (and second consecutive) term as Speaker of the U.S. House of Representatives. Pelosi, the only woman to have been elected Speaker of the House, earned 216 votes—two more than the 214 votes she needed to retain the speakership (she needed a majority of the 427 voting members present)—and Congressman Kevin McCarthy (R-CA) received 209 votes. But what if nobody had earned a majority of the votes? Well, then the representatives would have kept voting until someone had received a majority. Multiple balloting to determine the Speaker of the House has happened 14 times, most recently in 1923 when Frederick Gillett (R-MA) finally prevailed with a razor-thin majority on the 9th ballot. But the election of Speaker for the 34th Congress in 1855 holds the record: it took 133 ballots and two months before Nathaniel Banks of Massachusetts was finally elected.