Last week, in part one of our two-part Summer Forecast of labor and employment–related legislative and agency developments, the Buzz took a look at the U.S. Congress and what our legislators might have in store for employers during the next six months. This week, we examine the federal labor and employment regulatory landscape.
Regulatory policy in Washington, D.C., is, of course, driven by the folks in charge, as politically appointed leaders set each agency’s regulatory and enforcement priorities. Though the administration has generally succeeded in appointing officials to key agency positions during these first eighteen months since President Biden took office, some key vacancies remain.
- S. Equal Employment Opportunity Commission (EEOC)
- On June 7, 2022, President Biden nominated Karla Ann Gilbride to be general counsel of the EEOC. Gilbride is currently codirector of the Access to Justice Project at Public Justice, a nonprofit legal organization. The general counsel position at the Commission has been vacant since President Biden dismissed former general counsel Sharon Fast Gustafson on March 5, 2021.
- Kalpana Kotagal’s nomination to the EEOC is currently stalled in the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP). If all Senate Democrats and Senator Bernie Sanders (I-VT), who caucuses with the Democrats, support Kotagal’s nomination, she will eventually be confirmed and tip the balance of power on the Commission in favor of the Democrats.
- Wage and Hour Division (WHD). The nomination of David Weil to be administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division was rejected by the U.S. Senate in March 2022. As a result, Acting Administrator Jessica Looman continues to run the WHD, as she has done since January 2021. Time will tell what impact—if any—the tanking of Weil’s nomination will have on the WHD’s regulatory and enforcement agendas. The administration may be content to stick with Looman at the helm (recall that then-President Obama did not have a confirmed wage and hour administrator until his second term).
- Employee Benefits Security Administration (EBSA). On June 8, 2022, the U.S. Senate failed to confirm President Biden’s nominee to run the DOL’s Employee Benefits Security Administration, Lisa Gomez, by a vote of 49–51. In a procedural move, Majority Leader Chuck Schumer (D-NY) switched his vote to “nay” in order to preserve the option of bringing Gomez up for another vote in the future (Gomez has the votes in the Senate to be confirmed, but Vice President Harris was unavailable this week to cast the tie-breaking vote). EBSA continues to be led by Acting Assistant Secretary Ali Khawar.
- Occupational Safety and Health Review Commission (OSHRC). With the withdrawal of President Biden’s nominee for the OSHRC, Susan Harthill, the agency continues to operate with only two commissioners. At this time, there is no word on whether the president will nominate another candidate.
- Office of Information and Regulatory Affairs (OIRA). As acting OIRA administrator, Sharon Block served as President Biden’s de facto regulatory czar until her departure from the agency in February 2022. Since then, the position has remained vacant. If Republicans control the U.S. House of Representatives and/or U.S. Senate in 2023, the administration will increasingly look toward the regulatory arena to achieve its policy goals. In this event, the OIRA administrator position will become even more significant.
U.S. Department of Labor
- Wage and Hour Division
- Overtime. The WHD is convening listening sessions with stakeholder groups in advance of issuing a proposal to amend the regulations implementing the Fair Labor Standards Act’s (FLSA) overtime provisions. These sessions will continue throughout June 2022, and the proposal is expected to issue sometime thereafter. Many WHD watchers anticipate that the agency will propose increasing the salary basis threshold and also potentially amend the duties test. Even if the WHD releases such a proposal by the end of this year, the ensuing debate (as well as likely litigation) is likely to continue well beyond 2022.
- Independent Contractor. While the administration has appealed the federal district court ruling reinstating the Trump-era FLSA independent contractor rule, stakeholders should expect the DOL to issue also issue a proposed regulation on the topic. On June 3, 2022, Acting Administrator Looman wrote in a blog post that the DOL “plans to engage in rulemaking on determining employee or independent contractor status under the FLSA.” According to the blog post, the DOL will hold two stakeholder listening sessions in late June, in advance of issuing a proposal. This means that a proposal could issue sometime in late summer or early fall.
- Joint Employer. The DOL rescinded the Trump-era FLSA joint employer rule a little less than one year ago. The agency is expected to follow this action with joint employer guidance of its own. The forthcoming Spring 2022 Unified Agenda of Federal Regulatory and Deregulatory Actions will likely provide some insight as to whether the WHD will address the issue via an administrator’s interpretation (as it did in 2016) or whether it will engage in rulemaking.
- The DOL is expected to issue final amendments to its Davis-Bacon Act implementing regulations, as well as a proposal to implement President Biden’s executive order requiring project labor agreements on federal construction projects valued at $35 million or more.
- Occupational Safety and Health Administration (OSHA)
- COVID-19. Regarding OSHA’s withdrawn COVID-19 vaccinate-or-test rule, as the Buzz recently discussed, Assistant Secretary Doug Parker told Congress during a hearing that the agency does not plan to resuscitate the rule. However, at that same hearing, Parker stated that the agency hopes to have a permanent COVID-19 standard applicable to the healthcare industry in place by the fall of this year. OSHA is currently in the process of reviewing public comments on the healthcare proposal. Finally, a proposal to address infectious diseases (which would presumably include not just COVID-19, but also tuberculosis, chicken pox, and the like), was scheduled to issue in April 2022, so could be made public at any time.
- Injury and Illness Reporting. June 30, 2022, is the deadline for the public to submit comments in response to OSHA’s proposal to basically revert back to its 2016 rule that required covered employers to electronically submit workplace injury and illness data to OSHA. A final rule could issue by the end of the year.
- OSHA is in the early stages of developing a heat illness prevention standard for indoor and outdoor workplace settings. In the meantime, employers may want to remain diligent in keeping their workplaces safe from dangerous heat.
National Labor Relations Board
The National Labor Relations Board and its general counsel, Jennifer Abruzzo, have wasted little time setting the table for major policy reversals. During the second half of the year, it is possible that the Board could issue decisions relating to fractured bargaining units, independent contractor analysis, the balance between workplace rules and protected concerted activity, arbitration, and the expansion of damages available under the National Labor Relations Act. The Board will also likely engage in rulemaking to rescind or amend its current joint employer regulation. Finally, the Board may attempt to revive a long-dormant doctrine that would allow for card check organizing.
U.S. Equal Employment Opportunity Commission
Assuming the Democrats take over the majority of the EEOC this summer/fall, they will look to unlock a regulatory agenda that has been stalled since January 2021. In the second half of the year, the Commission is expected to ramp up efforts relating to sexual harassment guidance, the delegation of authority to the general counsel, wage and hour data reporting, and workplace wellness.
Federal Contractor Blacklisting
A policy concept as significant as federal contractor blacklisting deserves its own heading. It also potentially transcends multiple regulatory agencies and schemes. The Buzz is watching two potential regulatory blacklisting efforts. First, the U.S. Department of Agriculture is proposing to require federal contractors to certify that they (and their subcontractors) are in compliance with fifteen federal labor laws and executive orders, as well as equivalent state laws. Sounds familiar, doesn’t it? Second, the Buzz has been tracking Senator Sanders’s efforts to reinstitute a government-wide federal contractor blacklisting scheme. Any federal contractor blacklisting scheme will face significant legal hurdles but will still bear watching.
Remembering Maude Kee. Maude Kee, West Virginia’s first female representative in Congress, was born this week (June 7) in 1895. Kee jump-started her political career by serving as executive secretary for her husband, John Kee, who represented West Virginia’s Fifth Congressional District from 1933 until his death in 1951 (as part of her duties as executive secretary, Kee authored a weekly column entitled “Washington Tidbits,” which ran in West Virginia newspapers—a precursor to the Buzz!). Just months after her husband’s death, Kee won a hotly contested election to take over his seat, and held onto the seat until her retirement in 1965. During her career in Congress, Kee was a champion for veterans (she served on the Veterans’ Affairs Committee) and coal miners. Upon her retirement, Kee’s son James won election to her seat, making Kee the first female member of Congress to be directly succeeded by her son.
The Buzz will not publish on June 17, 2022. We will be back on June 24, 2022.