Beltway Buzz, March 24, 2023

POTUS Issues First Veto. On March 20, 2023, after more than two years in office, President Biden issued his first legislative veto. As expected, President Biden rejected the bipartisan Congressional Review Act resolution that rescinded the U.S. Department of Labor’s rule (DOL) that allows retirement plan fiduciaries to consider environmental, social, or governance (ESG) factors when making investment decisions. The White House said in a statement that the DOL rule “allows retirement plan fiduciaries to make fully informed investment decisions by considering all relevant factors that might impact a prospective investment, while ensuring that investment decisions made by retirement plan fiduciaries maximize financial returns for retirees.” As the Buzz has mentioned, the DOL investor rule is one front in the broader war that congressional Republicans will wage against “ESG” investing.

The NLRB’s Busy Week. This week, the National Labor Relations Board’s (NLRB) general counsel (GC), Jennifer Abruzzo, issued two memos, a Board official received a subpoena from the chair of the House Committee on Education and the Workforce, and the GC was sued in federal court over a memo she issued last year regarding “captive audience” meetings.

• GC provides guidance on severance agreements. Roberto R. Agraz and Zachary V. Zagger have the scoop on the March 22, 2023, memo issued by General Counsel Abruzzo that provides follow-up guidance on the implementation of the Board’s recent decision limiting severance agreements. Among other important points, the memo explains that the Board’s ruling applies to agreements that have already been agreed to, and could potentially apply to supervisors. The memo also notes that narrowly tailored confidentiality clauses that “restrict the dissemination of proprietary or trade secret information for a period of time based on legitimate business justifications may be considered lawful.”
• GC provides updates on priorities. On March 20, 2023, General Counsel Abruzzo sent a memo to regional directors updating the status of her top priorities that she outlined in August 2021. Those priorities include, but are not limited to cases involving: successor employers, financial disclosures to union nonmembers, employer obligations after the expiration of a collective bargaining agreement, intermittent strikes, compensatory damages in refusal to bargain cases, arbitration agreements, as well as “cases involving electronic surveillance or algorithmic management that interferes with the exercise of Section 7 rights.”
• House Republican subpoenas NLRB. At the start of the 118th Congress, the Buzz predicted that Republicans in the U.S. House of Representatives would use their oversight authority to investigate activities of the NLRB, among other agencies. Well, chair of the House Committee on Education and the Workforce, Virginia Foxx (R-NC), is definitely taking her oversight powers very seriously. This week Foxx issued a subpoena to the NLRB seeking documents related to alleged “misconduct by NLRB employees in representation and unfair labor practice cases.” The subpoena involves allegations—echoed recently by Senator Bill Cassidy (R-LA)—that in certain instances Board officials have provided improper aid to union officials and pro-union employees during union representation elections.
• NLRB GC sued over employer speech memo. Late last week, General Counsel Abruzzo was sued in federal court by a state trade group over her April 2022 memorandum in which she announced that she would “ask the Board to find mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory rights, including captive audience meetings, a violation of the National Labor Relations Act.” The lawsuit alleges that the memorandum chills employers’ statutory speech rights and violates the First Amendment of the U.S. Constitution. The plaintiffs asked the court to order Abruzzo to rescind the memorandum and refrain from threatening to prosecute employers that speak to employees in certain situations.

OFCCP Contractor Portal Opens. This week the Office of Federal Contract Compliance Programs (OFCCP) announced that its Contractor Portal will be open from March 31 to June 29, 2023. This is the second year that contractors will have to use the portal to “certify, on an annual basis, whether they are meeting their requirement to develop and maintain annual AAPs [affirmative action plans].” Federal contractors that fail to certify compliance with their affirmative action requirements via the portal risk being included on the agency’s Corporate Scheduling Announcement List (CSAL). Leigh M. Nason and Zachary V. Zagger have all the details.

H-1B Update.

• Grace period extension? The President’s Advisory Commission on Asian Americans, Native Hawaiians, and Pacific Islanders has recommended to increase from sixty to 180 days the grace period by which H-1B visa holders who have been discharged by their employers must find a new employer sponsor. While this is good news for those visa holders, USCIS Director Ur Jaddou noted in a January 25, 2023, letter that, “Because the 60-day grace period is codified at 8 CFR 214.1(l)(2), it would require a regulatory change which would take considerable time to complete given the generally lengthy regulatory process under the Administrative Procedure Act.” The Buzz will be curious to see if such a regulatory proposal appears in the Spring Regulatory Agenda.
• Registration extension. As a result of a technical issue that occurred late last week, USCIS extended the H-1B registration window from March 17 to March 20, 2023. Katie W. Desmond has the scoop.

Happy Birthday, 26th Amendment. This week in 1971, the U.S. Congress approved the Twenty-Sixth Amendment to lower the voting age from twenty-one to eighteen. The push to lower the voting age started in the 1960s and picked up momentum with the military draft during the Vietnam War. As a result, in 1970, President Nixon signed into law an extension of the Voting Rights Act of 1965 that contained a provision requiring the minimum voting age in all federal, state, and local elections to be eighteen years of age. Later that year, in Oregon v. Mitchell, the Supreme Court of the United States ruled that while Congress could set the voting age for federal elections, it lacked authority to set the age in state and local elections. Recognizing the cost and impracticality of each state maintaining separate federal and local voting rolls, Congress quickly proposed an amendment to the Constitution on March 23, 1971, which was ratified on July 5, 1971. The applicable provision of the Twenty-Sixth Amendment states: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”