Beltway Buzz, May 22, 2020

Congressional Coronavirus Update. On May 20, 2020, Speaker of the United States House of Representatives Nancy Pelosi (D-CA), evoked the proxy voting provision of House Resolution 965. The Speaker’s action will trigger a “covered period” of 45 days during which House members can vote remotely (through use of a proxy House member who will be physically present) and participate in committee meetings. One of the first uses of the proxy voting system might occur next week, as Democrats plan to bring to the House floor a bipartisan bill that would tweak the Paycheck Protection Program of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The bill would provide borrowers with more flexibility in how they can use the loans, and extend the period during which they must use the loan proceeds from 8 to 24 weeks (a similar, but different, effort is making its way through the Senate).

OSHA Coronavirus Update. This week, the U.S. Occupational Safety and Health Administration (OSHA) revised two policy pronouncements issued in April 2020, relating to its enforcement protocols and the recording of COVID-19 transmissions in the workplace:

• The Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) replaces OSHA’s April 13 policy that prioritized fatalities, imminent danger situations, and high-risk categories for inspection and investigation. Notably, according to the updated guidance, the agency “will return to the inspection planning policy that OSHA relied on prior to the start of the COVID-19 health crises,” in geographic areas where community spread of the virus has decreased significantly.
• Furthermore, in its revised guidance relating to recordkeeping of coronavirus transmissions in the workplace, OSHA will require employers to determine whether a case of COVID-19 in the workplace is work-related as defined by OSHA regulations. Jaslyn W. Johnson and John F. Martin have the details.

Both sets of revisions will take effect on May 26, 2020.

Wage and Hour Regs Finalized. It was a busy week for the U.S. Department of Labor’s Wage and Hour Division (WHD), as it finalized two new rules.

• First, effective May 19, 2020, the WHD repealed the lists of businesses, which it had introduced in 1961, that “lack a retail concept” and “may be recognized as retail” for purposes of determining the applicability of the Fair Labor Standards Act’s (FLSA) Section 7(i) exemption for certain commissioned employees. According to the WHD, rescission was necessary because the lists were static and outdated and could not keep up with modernization of the workplace. The WHD will now apply one consistent analysis when determining the applicability of the exemption. Lisa Stephanian Burton and Charles E. McDonald, III have the details.
• Second, on May 20, 2020, the WHD finalized its fluctuating workweek regulation. The rule permits the payment of additional remuneration (bonuses, commissions, premium pay, hazard pay, etc.) to employees who are compensated under the fluctuating workweek method.

NLRB Outreach. This week, the National Labor Relations Board (NLRB) announced multiple initiatives to assist stakeholders in understanding the changes to the Board’s representation rules that become effective on May 31, 2020. First, the Board’s Region 8 office will hold a virtual training session on the morning of May 28, 2020. Second, the Board announced that its regional offices will be “conducting explanatory sessions, by teleconference, in order to answer questions and discuss the new modifications to the Agency’s representation case procedures.” The Board’s announcement does not include dates or times for these sessions.

Regulatory Flexibility Encouraged in New Executive Order. On May 19, 2020, President Trump issued an executive order (EO) that is intended to ease the federal regulatory burden on employers as the economy begins to reopen. Among its provisions, the EO requires agencies to consider taking action to temporarily or permanently rescind, modify, or waive regulations that may inhibit economic growth. The EO also instructs agencies, in enforcement proceedings, to consider the regulated entities’ reasonable good faith efforts to comply with existing guidance and regulations.

EEOC Proposes New Process for Issuing Guidance. Speaking of executive orders, the Buzz reported several months ago on President Trump’s dual executive orders intended to discourage agencies’ use of guidance materials as a vehicle for policymaking, instead of going through the Administrative Procedure Act process. In response to those EOs, this week the Equal Employment Opportunity Commission issued a proposed rule that outlines the process that the Commission will follow when issuing guidance documents. For example, if certain criteria are met, guidance that is deemed “significant” will be made available to the public for comment prior to finalization.

A Dreadful Anniversary in the Senate. On this day back in 1856, on the floor of the U.S. Senate, Representative Preston Brooks of South Carolina nearly beat to death with a cane U.S. Senator Charles Sumner of Massachusetts. A few days earlier Sumner, an abolitionist, made a speech on the Senate floor criticizing slaveholders, and specifically ridiculed Senator Andrew Butler of South Carolina, Brooks’s cousin. The comments infuriated Brooks, who responded by attacking Sumner while the Senator sat at his desk on the Senate floor. The beating was so brutal, it shattered Brooks’s cane, pieces of which were later turned into rings that southern lawmakers brandished in support of the pro-slavery congressman. Sumner was left bleeding and unconscious, spent years convalescing, and did not return to the Senate until 1859. For his part, Brooks was eventually arrested and fined, but never went to prison. He voluntarily resigned from the House to give his constituents an opportunity to judge his actions in a special election, and they quickly returned him to Congress. While the state of our current political discourse is unfortunate, Sumner’s caning serves as a useful reminder that politics has always had its share of ugly moments.