Beltway Buzz, February 18, 2022

Government Avoids Shutdown. Perhaps already missing professional football, the U.S. Congress this week punted on federal government funding. Funding for the government was set to expire at 11:59 p.m. on February 18, 2022, but Congress agreed to a three-week continuing resolution through March 11, 2022, averting a government shutdown. With the extension, the federal government continues to operate pursuant to a funding deal agreed to at the end of 2020. This means that President Biden and congressional Democrats have yet to put their imprimatur on federal government funding, which obviously impacts the regulatory and enforcement agendas at agencies such as the U.S. Department of Labor (DOL).

Senators Seek Return of COVID-19 Paid Leave. The three-week continuing resolution provides Congress with more time to stitch together the various appropriations bills that will set new government funding levels for fiscal year (FY) 2022. As part of this process, a group of fifteen members of the Senate Democratic Caucus is hopeful that COVID-19–related paid leave requirements can be included in such legislation. They wrote to President Biden, as well as Republican and Democratic leaders in the U.S. Senate and the U.S. House of Representatives, urging them “to reinstate and expand guaranteed emergency paid sick and family caregiving leave in the FY 2022 funding bill or in any separate COVID relief package Congress considers.” Unlike the leave program they helped to enact as part of the Families First Coronavirus Response Act (FFCRA), the senators want any new program to apply to all employers:

Any new law should ensure that guaranteed leave is accompanied by tax credits for businesses with fewer than 500 workers to reimburse them for the costs of providing the paid leave; should apply to workers in business of all sizes; and must provide, at a minimum, 10 days of paid sick and family caregiving leave, including leave to receive—or take a loved one to receive—a vaccination, and to address school or child care closures.

Of course, the return of this program is still a long shot due to the continuing turbulent labor market, as well as the legislative filibuster in the Senate. Still, the push for inclusion of the program in the spending bill is another sign that paid leave debates will continue to unfold in Washington, D.C.

Arbitration Carveout Bill Waiting for POTUS. Employers with alternative dispute resolution programs should be aware that President Biden still has not signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. This is important because the prohibitions in the bill “shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of [the] Act.”

NLRB to Coordinate With IRS, DOJ, and FTC. On February 10, 2022, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum to regional offices outlining the Board’s continuing efforts to cooperate with other federal agencies. The report follows on the release of the report of the White House Task Force on Worker Organizing and Empowerment, which instructs federal agencies “to work more closely together to facilitate worker organizing and collective bargaining.” In addition to noting the NLRB’s recent cooperative agreements with the DOL and the U.S. Equal Employment Opportunity Commission, General Counsel Abruzzo stated that she was “proceeding with efforts to establish partnerships with [the Internal Revenue Service (IRS)], [the U.S. Department of Justice’s (DOJ)] Antitrust Division, and [the Federal Trade Commission (FTC)] to address unfair methods of competition that undermine workers’ rights.” According to the memo, such partnerships are intended to:

• “reduce the incidence of misclassification of employees and ensure that employers properly pay their employees and their employment taxes”;
• share “data about acquisitions, mergers or similar employer organizational actions that may detrimentally affect organizing or bargaining efforts”; and
• “give greater attention to non-disclosure, non-solicitation, and non-compete agreements that harm fair competition and violate employees’ rights under Section 7 of the [National Labor Relations Act].”

OSHA to Update Truck Standard. On February 16, 2022, the Occupational Safety and Health Administration (OSHA) issued a notice of proposed rulemaking to update its powered industrial truck standard. As the standard has not been updated since 1971, the proposal aims to ensure that covered trucks—such as “fork trucks, tractors, platform lift trucks, motorized hand trucks and other specialized industrial trucks”—are designed and manufactured in accordance with the latest American National Standards Institute (ANSI) industrial truck safety criteria. Importantly, under the proposal, “employers would be able to acquire and use powered industrial trucks manufactured before the effective date of the final rule … so long as the employer can demonstrate that their design and construction provide employee protection that is at least equal to” the protection provided in the updated standard. Comments are due on or before May 17, 2022.

Supreme Court Record. Two hundred thirty-two years ago this week, back in 1790, John Rutledge was sworn in as an associate justice of the Supreme Court of the United States. Rutledge played multiple significant roles in the early formation of the United States. Born in South Carolina and trained as a lawyer, Rutledge served in the Continental Congress, as governor of South Carolina during the Revolutionary War, and later as a delegate to the Constitutional Convention in 1787. After a year of serving as an associate justice of the Supreme Court and not hearing a single case, Rutledge resigned (something that would never happen these days) in 1791 to become chief justice of South Carolina’s highest court. In June 1795, Supreme Court Chief Justice John Jay resigned to become governor of New York, and President George Washington gave Rutledge a recess appointment to replace Jay as the second chief justice of the Supreme Court. But when the U.S. Senate returned in December 1795, it rejected Rutledge’s nomination, due in part to Rutledge’s outspoken stance against the Jay Treaty with Great Britain. As a result, Rutledge resigned after having served 138 days as chief justice—the record for shortest tenure in the position.