Beltway Buzz, July 26, 2024

Biden Out, Harris In. On July 21, 2024, President Joe Biden announced that he would not run for a second term. Vice President Kamala Harris is now the presumptive Democratic nominee going into the November elections, which are 102 days away. Here is what we know about Vice President Harris, gleaned mostly from her presidential campaign and 2017-2021 time in office as senator from California.

• Traditional Labor. Labor unions are already lining up behind Harris, and the AFL-CIO has endorsed her, calling her “a true partner in leading the most pro-labor administration in history.” Harris chaired the White House Task Force on Worker Organizing and Empowerment, which was instructed to “identify statutory, regulatory, or other changes that may be necessary to make policies, practices, and programs more effective means of supporting worker organizing and collective bargaining.” Harris also cosponsored the Protecting the Right to Organize Act of 2019 (PRO Act) during her time in the U.S. Senate.
• Equal Pay. In 2019, while running for president, Harris advocated for a plan that would require employers to obtain an “Equal Pay Certification” that would require employers to “demonstrate they have eliminated pay disparities between women and men who are doing work of equal value.” Companies that fail to comply would “be fined 1% of their profits for every 1% wage gap they allow to persist for work of equal value.” Harris would impose this plan on federal contractors via executive order if the U.S. Congress does not pass a bill.
• Paid Leave. Harris was a cosponsor of the Family and Medical Insurance Leave (FAMILY) Act, which is a version of the Family and Medical Leave Act (FMLA) that would provide paid leave.
• Immigration. Harris was a cosponsor of the Development, Relief, and Education for Alien Minors (DREAM) Act, which would provide a path to lawful permanent residency for certain undocumented immigrants who were brought to the United States as children.

NLRB News. It was a busy week for traditional labor-related matters.

• NLRB Finalizes “Fair Choice” Rule. On July 26, 2024, the National Labor Relations Board (NLRB) issued its final “Fair Choice–Employee Voice Final Rule.” The rule rescinds a 2020 NLRB rule and, despite its name, takes away secret ballot elections from employees in certain situations. More specifically:
  • The final rule restores the NLRB’s “blocking charge” policy, which allows unions to delay or postpone elections by making unfair labor practice allegations against employers. This blocking charge policy frustrates employee free choice by delaying or denying employees access to secret ballot elections. Unions use this strategy most effectively in decertification elections to deny employees the opportunity to remove the union as their bargaining representative.
  • The rule also prohibits employees from voting in an NLRB-supervised secret ballot election to determine whether there is majority support in situations in which the employer voluntarily recognizes the union as the exclusive bargaining representative. 
  • The rule undercuts employee free choice in the construction industry by allowing Section 8(f) prehire agreements to be converted to Section 9(a) agreements even without positive evidence of majority employee support. 

The rule becomes effective September 30, 2024. The rule is also potentially eligible for rescission by the 119th Congress pursuant to the Congressional Review Act.

• NLRB Withdraws Joint-Employer Appeal. Late last week, the NLRB withdrew its appeal of the March 8, 2024, decision by the U.S. District Court for the Eastern District of Texas vacating the Board’s 2023 joint-employer rule. This means that the Board’s 2020 joint-employer rule, which requires substantial control over essential employment terms for joint-employment status, remains in place.
• Chair McFerran’s Renomination. The business community continues to keep a watchful eye on a potential hearing and/or confirmation vote on the renomination of NLRB Chair Lauren McFerran. On August 1, 2024, the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) will vote on the nominations of McFerran and Joshua L. Ditelberg to be members of the NLRB (as well as Mark G. Eskenazi to be a member of the Occupational Safety and Health Review Commission). Next week is the Senate’s last week in D.C. before breaking for its scheduled August recess. So if the HELP Committee advances the nominees, a full Senate vote isn’t expected until at least September.

Pennsylvania Court Rejects Motions to Enjoin FTC’s Non-compete Ban. This week, the U.S. District Court for the Eastern District of Pennsylvania rejected a tree service company’s motion to enjoin and stay the effective date of the Federal Trade Commission’s (FTC) rule banning non-compete agreements. The court rejected the plaintiff’s arguments “that the FTC lacks substantive rulemaking authority under its enabling statute, that the FTC exceeded its authority, and that Congress unconstitutionally delegated legislative power to the FTC.” The ruling sets the stage for a potential circuit split, as earlier this month, the U.S. District Court for the Northern District of Texas enjoined the rule as applied to the particular plaintiffs. Justin A. Allen and Jack H. Robinson have the details.

Rep. Wexton Makes History. On July 25, 2024, Virginia Representative Jennifer Wexton (D) made history by being the first member of Congress to deliver remarks on the House floor through an augmentative and alternative communication device that broadcast a cloned version of her voice. Last year Wexton was diagnosed with progressive supranuclear palsy, a rare neurological disease that she refers to as “Parkinson’s on steroids.” The disease has negatively impacted Wexton’s mobility and speech. Based on clips of her previous speeches, Wexton and her staff used an AI-facilitated assistive technology to create a recording that replicates her voice. Wexton spoke in honor of Disability Pride month and the 34th anniversary of the Americans with Disabilities Act. Due to her declining health, Wexton will not seek reelection in November.

The Buzz will be on hiatus next week but will return on August 9, 2024.