Beltway Buzz, June 9, 2023

Debt Limit Done. Now What? With the Fiscal Responsibility Act of 2023 in the rearview mirror, this week the U.S. Congress turned to other matters. The U.S. Senate spent the week focusing on nominations to federal agencies. In the U.S. House of Representatives, however, legislative progress was short-lived. Roughly one dozen Republicans frustrated action on the House floor this week in order to exact political concessions from Speaker Kevin McCarthy over what they considered his mishandling of the debt ceiling crisis. Looking ahead, the next major legislative hurdle will be funding the federal government beyond September 30, 2023. Actions on the House floor this week perhaps indicate that this won’t be an easy lift.

SCOTUS Cements Ruling on Property Destruction During Labor Disputes. On June 1, 2023, the Supreme Court of the United States issued an 8–1 decision holding that the National Labor Relations Act does not preempt an employer’s property damages claim against a labor union for actions it took during a labor dispute. The employer, a concrete company, sought damages after the union representing its employees initiated a work stoppage while concrete was being delivered to customers. The concrete went undelivered, hardened, and became useless. Justice Amy Coney Barrett wrote:

Indeed, far from taking reasonable precautions to mitigate foreseeable danger to [the employer’s] property, the Union executed the strike in a manner designed to compromise the safety of [the employer’s] trucks and destroy its concrete. Such conduct is not “arguably protected” by the NLRA; on the contrary, it goes well beyond the NLRA’s protections.

Eric C. Stuart, Daniel A. Adlong, and Zachary V. Zagger have the details.

Acting Secretary Su in the Hot Seat. On June 7, 2023, the House Committee on Education and the Workforce held a hearing entitled, “Examining the Policies and Priorities of the Department of Labor,” which featured one witness: Acting Secretary of Labor Julie Su. While ostensibly about the U.S. Department of Labor’s (DOL) fiscal year (FY) 2024 budget request, Su’s nomination to be the permanent secretary of labor served as an underlying theme of the hearing. As such, the hearing covered a wide variety of labor and employment policy topics, including independent contractors, the pending changes to the overtime regulations, apprenticeship programs, project labor agreements, national contract negotiations, unemployment insurance, child labor, and the DOL’s environmental, social, and governance (ESG) investing rule. Clearly, House Republicans are prepared to push back on any final DOL independent contractor regulation or overtime proposal.

NLRB Member to Get Another Term? President Biden has renominated Gwynne A. Wilcox to serve a second term as a member of the National Labor Relations Board (NLRB). Wilcox began her tenure on the Board on August 4, 2021, and her term is scheduled to end on August 27, 2023. Democrats currently enjoy a 3–1majority on the Board. If confirmed, Wilcox will serve through mid-2028—potentially two-and-a-half years into a Republican administration. At this time, there is no word on whether President Biden might also nominate a Republican to fill the seat vacated by John F. Ring in December 2022.

EEOC Religious Discrimination Claims Skyrocket. After being pressed by Republican House members to “post data on the types of discrimination charges filed with the agency,” the U.S. Equal Employment Opportunity Commission (EEOC) recently posted its charge data for FY 2022 (October 2021 through September 2022). The most noteworthy development was the rise of religious discrimination claims, which increased from 2,111 in FY 2021 to 13,814 in FY 2022—a 554 percent increase. Charges based on religious discrimination claims represented 18.8 percent of the total charges filed with the EEOC in 2022. This increase was likely due to regulations and policies addressing COVID-19 vaccines. The rise of religious discrimination claims in the workplace is particularly noteworthy (query whether the trend will continue), given that the Supreme Court is soon expected to issue a ruling that could change the standard for determining whether a religious accommodation request creates an “undue hardship” for an employer.

Congress Moving to Address AI? As the Buzz has been tracking over recent weeks, Congress and our federal regulators appear to be taking preliminary steps to address various facets and applications of artificial intelligence and algorithmic learning. Senate Majority Leader Chuck Schumer (D-NY) announced this week that he would be convening “three bipartisan Senators-only briefings” to “take the time to learn from the leading minds in AI, across sectors, and consider both the benefits and risks of this technology.” Leader Schumer promises the three hearings will address the following questions:

• “Where is AI today?”
• “What is the frontier of AI and how do we maintain American leadership?”
• “How do the Department of Defense and Intelligence Community use AI today and what do we know about how our adversaries are using AI[?]”

According to Majority Leader Schumer’s announcement, “AI is already changing our world, and experts have repeatedly told us that it will have a profound impact on everything from our national security to our classrooms to our workforce, including potentially significant job displacement.”

Seersucker Thursday. On Thursday, June 7, 2023, the U.S. Senate agreed to S. Res. 240—sponsored by Senator Bill Cassidy (R-LA)—designating June 8, 2023, as “National Seersucker Day.” The resolution further declares every subsequent Thursday through the end of August 2023 as “Seersucker Thursday,” and June 2023 as “Seersucker Appreciation Month.” “Seersucker Thursday” is an annual Senate tradition first started by then-senator Trent Lott (R-MS) in 1996. The tradition was paused in 2012 during a period of increased acrimony on Capitol Hill, and then resurrected in 2015 by Senator Cassidy, whose home state of Louisiana is reputed to have created the United States’ first seersucker suits in the nineteenth century. Of course, seersucker isn’t just reserved for our legislators. As Atticus Finch demonstrated, lawyers can wear seersucker, too.