Close up of American flag.

Congress Returns, Eyes Finish Line. The U.S. Senate reconvened this week following its August recess. Meanwhile, members of the U.S. House of Representatives continued to hit the snooze alarm, as they will return to their work in D.C. the week beginning September 11, 2023. Employers should expect a busy few months leading up to the end of the calendar year as the U.S. Congress tackles government funding, military authorization, and other big-ticket items. Of course, as early as it might seem, underlining every action on Capitol Hill these days is the 2024 election—“only” 423 days away.

Wilcox Confirmed. On September 6, 2023, the U.S. Senate confirmed Gwynne Wilcox to a second term on the National Labor Relations Board. Wilcox’s nomination squeaked by on a vote of 51–48, with Senator Joe Manchin (D-WV) voting “nay” and Senators Lisa Murkowski (R-AK) and Dan Sullivan (R-AK) voting “yea.” With no Republican nominated to fill the empty seat vacated by former member John Ring, Wilcox’s confirmation gives the Board a 3–1 Democratic majority. With Wilcox rejoining the Board, look for the agency to finalize its much-anticipated joint-employer rule in the near future.

Looking further down the road, Wilcox’s confirmation will extend the three-member Democratic majority on the Board until the end of December 2024, when Chair Lauren McFerran’s term expires. Beyond that, if President Biden acts quickly to fill the vacancy left by Chair McFerran’s departure, he could continue a Democratic majority on the Board well into a potential Republican administration that might begin in early 2025.

Top Senate Labor Republican Introduces Bill to Rein in Su. Republicans in Congress are frustrated that the administration seems to be having its cake and eating it, too, with regard to Acting Secretary of Labor Julie Su. Although her nomination to serve as secretary of labor is still pending, it has essentially been rejected by the U.S. Senate. At the same time, she continues to serve—seemingly indefinitely—in the acting secretary role at the U.S. Department of Labor. Consequently, the ranking member of the Senate Committee on Health, Education, Labor and Pensions (HELP), Senator Bill Cassidy (R-LA), recently introduced the Advice and Consent Act, which would prevent a deputy secretary of labor such as Su—nominated to the position of labor secretary—from serving as acting secretary beyond “210 days after the date on which the President [has] submitted such nomination to the Senate.” Meanwhile, in a floor speech delivered earlier this week, Senator Cassidy urged President Biden to “withdraw Ms. Su’s nomination and put forward a nominee who is committed to fair enforcement of our nation’s labor laws.”

Cassidy Issues White Paper on Artificial Intelligence (AI). Senator Cassidy had a busy first week back in Washington, D.C. In addition to introducing the aforementioned Advice and Consent Act, this week Cassidy released a white paper, “Exploring Congress’ Framework for the Future of AI: The Oversight and Legislative Role of Congress Over the Integration of Artificial Intelligence in Health, Education, and Labor.” With regard to federal employment policy, the paper focuses on AI’s promise and perils in three areas: job displacement, working conditions, and discrimination. While the paper does offer some potential legislative solutions, particularly with regard to potential job displacement, it primarily presents the various AI-related issues that might be in store for Congress in this evolving area and notes how challenging the task may be: “Federal lawmakers have shown interest in regulating AI, but significant problems, including the novelty of the technology and the still undecided nature of its impact, remain.”

EEO-1 Collection to Open. The U.S. Equal Employment Opportunity Commission (EEOC) has announced that the 2022 EEO-1 collection will open on October 31, 2023, and close on December 5, 2023. James A. Patton, Jr. and Kiosha H. Dickey have the details. Note, however, that the Office of Management and Budget (OMB) approved the collection form for only one year:

OMB approves this collection of information for 1 year. Before submitting the collection for future approvals, OMB requests that EEOC work closely with OMB to ensure that the collection is preparing to become fully compliant with upcoming revisions to OMB’s Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity and any associated OMB guidance. OMB also recommends that EEOC seek the input of affected stakeholders about any revisions as early as possible, and provide respondents with ample notice before making revisions in order to minimize burdens. Finally, OMB expects EEOC to keep it updated about any possible revisions to this report on a regular basis.

With Kalpana Kotagal now a member of the Commission, this one-year approval leaves the door open for the EEOC to potentially add a pay data and hour-worked component to future data collections.

Associate Justice George Sutherland. One hundred one years ago this week, President Warren G. Harding nominated George Sutherland to serve as an associate justice of the Supreme Court of the United States. A former member of the U.S. House of Representatives and U.S. Senate representing Utah, Sutherland was confirmed by the Senate on the same day he was nominated—a feat that would be very unlikely to happen today. Sutherland served on the Court from 1922 until his retirement in 1938, and he is largely remembered for being one of the “Four Horsemen” who pushed back on President Franklin D. Roosevelt’s New Deal agenda (the other members were Justices Pierce Butler, James Clark McReynolds, and Willis Van Devanter). Sutherland authored several famous majority opinions for the Court, including Village of Euclid v. Ambler Realty Co. (1926) (upholding zoning laws—which were relatively new at the time—as a reasonable extension of the state’s police power); Powell v. Alabama (1932) (applying the Sixth Amendment of the U.S. Constitution’s right to counsel to the states to reverse the convictions of nine Black teenagers who were deprived of counsel; thirty-one years later, Gideon v. Wainwright would expand the right to counsel to apply in all criminal cases); and Adkins v. Children’s Hospital (1923) (striking down a federal law that set minimum wages for women and children in Washington, D.C.). This last case was famously overruled in West Coast Hotel Co. v. Parrish (1937), the case referred to as the “switch in time that saved nine,” which opened the door to FDR’s agenda and put to rest the president’s court-packing plan.


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