Beltway Buzz, July 15, 2022

EEOC Updates COVID-19 Guidance. On July 12, 2022, the U.S. Equal Employment Opportunity Commission updated its COVID-19 guidance as it relates to the testing of employees in the workplace. Since the start of the pandemic, the EEOC has advised that COVID-19 viral testing was generally permissible under the Americans with Disabilities Act. With this week’s update, employers must now be able to demonstrate that mandatory testing is job-related and consistent with business necessity. This standard will require employers to “assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19.” Christine Bestor Townsend and Katy McGarry have the details.

NLRB: Union Election Petitions Increase. Workers around the United States continue to file more union representation petitions. According to the National Labor Relations Board, during the first three quarters of the current fiscal year (October 1, 2021–June 30, 2022), the agency received 1,892 representation petitions. This represents a 58 percent increase from the 1,197 petitions the agency received during the same period last year.

DOL Issues NPRM Relating to Federal Contract Successors. On July 15, 2022, the U.S. Department of Labor’s Wage and Hour Division issued a notice of proposed rulemaking (NPRM) implementing President Biden’s Executive Order 14055, “Nondisplacement of Qualified Workers Under Service Contracts” (November 18, 2021). The NPRM notes that the executive order requires federal contractors, when succeeding federal contracts for the same or similar services, to “offer qualified employees employed under the predecessor contract a right of first refusal of employment under the successor contract.” The proposed rule sets forth parameters for defining which contracts are covered and excluded, guidelines for determining which workers are eligible for job offers, the process for offering and accepting jobs, and recordkeeping requirements. If this all sounds familiar, the concept goes back to at least the Clinton administration, and subsequent administrations have both rescinded and resuscitated the policy. Comments on the NPRM are due on or before August 15, 2022.

House Approves Labor Amendments. This week, the U.S. House of Representatives passed the National Defense Authorization Act for Fiscal Year 2023 (NDAA) (H.R. 7900). To Congress’s credit, the annual legislative effort has never failed: the bill authorizing funding for the military has passed for sixty-one straight years. In the House, more than 1,200 amendments to the bill were filed, and about half that number were considered for debate on the House floor. The following labor-related amendments were approved as part of the House-passed NDAA:

• An amendment to require the Office of Federal Contractor Compliance Programs to establish compliance procedures (filing of complaints, investigations, etc.) relating to the federal prohibition on criminal history inquiries by federal contractors
• An amendment to prohibit the U.S. Department of Defense (DOD) from contracting with any employer found to have committed an unfair labor practice within three years of the contract award
• An amendment to require the DOD to give preference to unionized contractors, enter into neutrality agreements, or promise not to hire striker replacements
• An amendment that would blacklist from federal contract opportunities employers that have committed two or more violations of the Fair Labor Standards Act within the past five years

Of course, time will tell if these amendments make their way into a final bill for President Biden to sign. The U.S. Senate will likely consider the NDAA in September.

Employer Group Warns About Online Voting for Union Representation Elections. Just last week, the Buzz reported on the inclusion of language in the House Committee on Appropriations’ Fiscal Year 2023 Labor, Health and Human Services, Education and Related Agencies Bill that would order the National Labor Relations Board to “develop a system and procedures to conduct union representation elections electronically.” In a very timely response to the committee’s action, the Coalition for a Democratic Workplace this week issued a report titled “Online Voting in Union Representation Elections: The Latest Attempt to Eliminate Workers’ Right to Secret Ballots.” The report argues that online voting for union representation elections is subject to fraud, coercion, and cybersecurity risks and warns that “[t]he NLRB must halt their efforts to implement an online voting system, and Congress should oppose legislation permitting the Board to establish such a system in order to protect the credibility of union representation elections.”

Power of the Purse. The Buzz has recently been discussing federal government spending and appropriations, so it is perhaps appropriate that this week marks the forty-eighth anniversary of the enactment of the Congressional Budget and Impoundment Control Act of 1974. The act was a response to the executive branch’s steady usurpation of Congress’s power of the purse: presidents since the founding had always refused to spend (i.e., impounded) certain funds appropriated by Congress. Congress tolerated this practice for the most part until President Nixon took it to the extreme and refused to spend tens of billions of congressionally appropriated funds on initiatives that he opposed. (President Nixon signed the bill into a law a month prior to his resignation.) The act reasserted Congress’s control over the appropriations process by creating the nonpartisan Congressional Budget Office, as well as the House and Senate budget committees. It also moved the federal government’s fiscal year from July 1 to October 1, to give Congress more time to react to the president’s annual budget message. Perhaps most importantly, Title X of the act put much stricter limits on when and how presidents may impound funds. In that respect, the act could be considered a success. But in terms of delivering a smooth and on-time federal budget process? Not so much.