Beltway Buzz, November 19, 2021

House Builds Back Better. After months of starts, restarts, delays, and negotiations, the U.S. House of Representatives finally passed the Build Back Better Act on November 19, 2021, by a vote of 220–213. The bill would invest approximately $1.7 trillion, primarily in climate and domestic social programs, and add $367 billion to the federal deficit between 2022 and 2031. In the labor and employment law space, the bill would add a new four-week federal paid leave program, as well as new penalties—and dramatic increases to existing statutory amounts—for employer violations of various federal labor laws that the Buzz described in our October 29, 2021, issue. The bill now heads to the U.S. Senate where it will be the subject of further debate and negotiation, as well as rulings by the Senate parliamentarian about what provisions can and cannot be included pursuant to the budgetary reconciliation process. This process is expected to unfold in the Senate during the last few weeks of the year.

OSHA Vaccination ETS Challenges Land in Sixth Circuit. For all its rules, process, and precedent, our legal system sometimes quite literally comes down to the flip of a coin or the bounce of a Ping-Pong ball. This week, the U.S. Judicial Panel on Multidistrict Litigation randomly selected “from a drum” the Sixth Circuit Court of Appeals to hear the consolidated legal challenges to the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). More than 30 legal challenges to the ETS have been filed in a dozen different federal circuit courts of appeals. In the meantime, the Fifth Circuit Court of Appeals’ stay of the ETS remains in place, and OSHA has updated its ETS website to note that it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

FTC to Examine Noncompetes? Agencies that are not normally associated with labor and employment law policy seem to be growing increasingly interested in the topic. The Buzz recently noted the U.S. Securities and Exchange Commission’s (SEC) “human capital disclosure” efforts. This week, the Federal Trade Commission (FTC) released for public comment its draft Strategic Plan for fiscal years 2022 to 2026. Among the proposals are the following worker-related items:

• “Reach out to workers: Provide workers and those looking for work, including those in marginalized communities, with practical, user-friendly educational resources and information to help them identify and report market power abuses and consumer protection violations in the marketplace.”
• “Focus on workers: Study and investigate the impact on worker wages and benefits from merger and nonmerger conduct, as well as non-compete and other potentially unfair contractual terms resulting from power asymmetries between workers and employers.”

In July 2021, President Biden issued an executive order recommending, among other things, that the FTC examine covenants not to compete. Comments on the FTC’s proposed strategic plan are due by November 30, 2021.

EEOC Adds Retaliation Information to COVID-19 Guidance. In conjunction with its new joint anti-retaliation initiative with the U.S. Department of Labor (DOL) and National Labor Relations Board (NLRB), the U.S. Equal Employment Opportunity Commission (EEOC) this week updated its COVID-19 guidance with new information relating to unlawful retaliation in the workplace. The new guidance includes the following:

• Requesting an accommodation for a disability or a religious belief is protected activity. The EEOC clarified that “the EEO laws prohibit an employer from retaliating against an employee for requesting continued telework as a disability accommodation after a workplace reopens.”
• Such requests for accommodation are protected from retaliation “even if the individual is not legally entitled to accommodation, such as where the employee’s medical condition is not ultimately deemed a disability under the [Americans with Disabilities Act (ADA)], or where accommodation would pose an undue hardship.”
• Employees engaging in protected activity may still be disciplined for legitimate, nondiscriminatory reasons. For example, “an employer may take non-retaliatory, non-discriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity (e.g., an accommodation request).”
• “Under the ADA, employers may not coerce, intimidate, threaten, or otherwise interfere with the exercise of ADA rights by job applicants or current or former employees.”

Anti-Arbitration Bills on the Move. This week, the U.S. House Committee on the Judiciary advanced the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445), just a couple of weeks after a companion bill (S. 2342) was approved by the U.S. Senate Committee on the Judiciary. The bill would prohibit any “predispute arbitration agreement or predispute joint-action waiver” relating to a “sexual assault dispute” or “sexual harassment dispute.”

DOL Moves to Rescind Trump-Era Apprenticeship Rule. On November 15, 2021, the DOL’s Employment and Training Administration issued a notice of proposed rulemaking (NPRM) to rescind the Trump administration’s Industry-Recognized Apprenticeship Programs (IRAP) rule that was finalized in March 2020. In the NPRM, the DOL reasons that “the IRAP rule does not provide adequate focus on worker needs and protections, does not ensure adequate program quality standards, does not provide sufficient equal employment opportunity protections for apprentices, and does not provide a proven pathway to family-sustaining jobs.” Comments on the proposal are due on or before January 14, 2022.

A Very Interesting Story. This week in 1811, President James Madison nominated Joseph Story to the Supreme Court of the United States. Story was only 32 years old at the time, and he remains the youngest person to serve on the Court, where he served until his death in 1845. Story famously penned the Court’s opinion in Martin v. Hunter’s Lessee, an 1816 case that established the Court’s authority over state courts with regard to federal law. Story also wrote the opinion in United States v. Schooner Amistad, an 1841 case that represented an important step forward in the abolitionist movement, and which was the subject of the 1997 film. Story was portrayed in the film by retired Supreme Court Justice Harry Blackmun—likely the only time that a Supreme Court justice portrayed another justice on film.

The Buzz will be on hiatus on November 26, 2021, but will return on December 3, 2021.