Beltway Buzz, September 13, 2024

Countdown to Elections. The presidential debate this week between Vice President Kamala Harris and former president Donald Trump kicked off the sprint to the 2024 elections, which will be held fifty-three days from now. Ahead of the debate, and in advance of the election, Harris debuted her policy positions on her campaign website this week. Like most campaign materials, the information is light on details. But with regard to labor and employment, Harris states that she will “fight for unions” and “sign landmark pro-union legislation, including the [Protecting the Right to Organize] PRO Act.” She also states that she will “raise the minimum wage, end sub-minimum wages for tipped workers and people with disabilities, establish paid family and medical leave, and eliminate taxes on tips for service and hospitality workers.” As for immigration, Harris notes “our immigration system is broken and needs comprehensive reform that includes strong border security and an earned pathway to citizenship.”

Congress Returns. Lawmakers returned to Washington, D.C., this week after their annual August recess (arriving for the first time is Democratic Senator George Helmy from New Jersey, who was appointed to replace Senator Bob Menendez, who resigned amidst a bribery scandal). Up first on the to-do list is federal government funding, which expires in eighteen days. This week Republican leaders in the House kicked off the funding debate by backing a continuing resolution (CR) that would fund the government through March 28, 2025. The bill also includes the Safeguard American Voter Eligibility (SAVE) Act, a House-passed measure that requires proof of citizenship to register to vote in federal elections. As of this writing, this concept hasn’t moved forward at all, perhaps because it would be dead on arrival in the Democratic-controlled U.S. Senate. (The White House has already come out against it, characterizing the effort as brinksmanship.) A “clean” CR to extend the funding deadline beyond Election Day seems to be a good bet.

POTUS Issues EO on Labor Contracting Standards. On September 6, 2024, President Biden issued an Executive Order (EO) on Investing in America and Investing in American Workers. Echoing previous efforts by the Clinton and Obama administrations to leverage the federal government’s procurement power to assist organized labor, the EO states that the administration’s policy is “to promote the creation of equitable workforce development pathways for workers to obtain good jobs that pay family-sustaining wages, provide critical benefits, prevent workplace discrimination, ensure worker safety, and allow workers a free and fair chance to join a union.” The EO encourages federal agencies to implement the following criteria for federally funded or supported projects (which include grants, loans, and rebates):

• “[P]roject labor agreements, community benefits agreements, collective bargaining agreements, agreements intended to ensure the uninterrupted delivery of services, agreements designed to facilitate first collective bargaining agreements, voluntary union recognition, and neutrality by the employer with respect to union organizing.”
• Prevailing wages and “policies to promote equal pay and eliminate discriminatory pay practices, such as transparency measures.”
• Give preference to contractors “that promote economic security for workers, such as paid leave (including paid sick, family, and medical leave); health care; retirement benefits; and child, dependent, and elder care.”
• Give preference to contractors with “workforce plans that contain strategies for recruiting, hiring, and retaining workers from underserved and local communities.”
• The EO also encourages agencies to refer “alleged violations of law to other executive departments and agencies for a determination of whether circumstances warrant the issuance of financial penalties or collection of relief for workers harmed, withholding further Federal financial assistance pending correction of a deficiency, recovery of some or all Federal funds, or debarment.”

With roughly four months left in his term, the EO is further evidence that President Joe Biden is still taking actions to solidify his self-proclaimed legacy as the most pro-union president in history.

Court of Appeals Upholds DOL “Salary Basis” Authority. This week, the Fifth Circuit Court of Appeals upheld the U.S. Department of Labor’s (DOL) 2019 overtime rule, which established a $35,568 annual salary threshold below which workers would be eligible for overtime. In upholding the DOL’s authority to use a salary basis as a proxy for determining employees’ eligibility for overtime, the court warned that “[i]f the proxy characteristic frequently yields different results than the characteristic Congress initially chose, then use of the proxy is not so much defining and delimiting the original statutory terms as replacing them.” The case underscores a central argument in the current legal challenges to the Biden administration’s overtime rule, which will set a salary basis of $58,656 per year beginning in 2025: does the new salary threshold “replace” the duties test that the U.S. Congress set forth in the Fair Labor Standards Act? Keith E. Kopplin and Zachary V. Zagger have the details.

EEOC: Both High-Tech Sector and Workforce Lack Diversity. On September 11, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued a report entitled, “High Tech, Low Inclusion: Diversity in the High Tech Workforce and Sector 2014 – 2022.” The report examines sex and race/ethnic diversity in both the high-tech workforce (consisting of workers in STEM occupations regardless of industry) and the high-tech sector (industries with at least 20 percent of high-tech workers) in 2022. The EEOC found:

Our findings detailed in this report show the continued underrepresentation of Black, Hispanic, and female workers in both the high tech workforce and the high tech sector in 2022. Women and all workers of color are also underrepresented as high tech managers in the high tech workforce and as executives and management in the high tech sector.

The report also found that discrimination claims relating to age, pay, and genetic information are more frequent in the high-tech sector (though retaliation is the most common charge filed, as it is across all industries). With regard to enforcement, the report concludes, “The EEOC will continue working to address discrimination in high tech by investigating and resolving charges of discrimination and, when necessary, pursuing litigation.”

Political Violence. On September 13, 1859, David Broderick, a Democratic senator from California, became the only U.S. senator to be killed in a duel. A member of the Democratic party’s anti-slavery wing, Broderick’s political positions led to a schism in his friendship with the chief justice of the Supreme Court of California, David Terry, also a Democrat. In 1859, Terry lost his reelection to the court, and he blamed Broderick for arranging for him to be replaced with an anti-slavery candidate. The two exchanged insults and agreed to a duel at Lake Merced, just south of San Francisco. After Broderick’s pistol discharged prematurely, Terry took his time and shot Broderick in the chest. The senator died three days later. The incident is a reminder, as the Buzz has noted previously, that as bad as our politics are today, they have always been marred by offensive discourse and even violence.

Terry was acquitted of the murder of Broderick, but he did not leave behind his penchant for political violence. He fought for the Confederacy during the Civil War, and in 1888 was jailed after erupting in a violent courtroom outburst following an adverse ruling by Justice Stephen Johnson Field of the Supreme Court of the United States, who had been temporarily assisting the federal circuit court in California. Terry would encounter Justice Field again nearly a year later, attempt to kill him, and ultimately meet his own end at the hands of Field’s bodyguard, U.S. Marshal David B. Neagle, who shot and killed him.