Beltway Buzz, October 2, 2020

HEROES Act Passes the House. Again. On October 1, 2020, the U.S. House of Representatives narrowly passed a (somewhat) slimmed-down version of the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act—House Democrats’ vision for the next economic stimulus package. The bill will die in the U.S. Senate, of course, as a relief agreement with Republicans does not yet exist. (No Republican voted in favor of the bill in the House.) Thus, it still seems highly unlikely that Congress will enact any pandemic relief package prior to the elections.

SCOTUS Battle Heats Up. On September 29, 2020, President Donald Trump formally nominated Amy Coney Barrett, a judge on the Seventh Circuit Court of Appeals, to fill the vacancy on the Supreme Court of the United States created by the death of Justice Ruth Bader Ginsburg. Senator Lindsey Graham (R-SC), chairman of the Senate Committee on the Judiciary, has stated that he plans to hold a confirmation hearing for Judge Barrett during the week beginning October 12, 2020, and a floor vote before Election Day (November 3, 2020). This is a very tight timeline, but not unprecedented. The Senate took 19 days to advance John Paul Stevens from nomination to confirmation in 1975, and 33 days to advance Sandra Day O’Connor from nomination to confirmation in 1981.

Premium Processing Changes. On October 1, 2020, President Trump signed a continuing resolution spending bill to keep the federal government funded through December 11, 2020. The legislation includes the Emergency Stopgap USCIS Stabilization Act, which addresses the funding shortfall at U.S. Citizenship and Immigration Services (USCIS) by increasing premium processing revenue streams.

USCIS Fee Increase Blocked. Speaking of USCIS funding, on September 29, 2020, Judge Jeffrey S. White of the U.S. District Court for the Northern District of California enjoined USCIS’s recent increases to its fee schedule. The case is unrelated to the funding legislation discussed above, but the fee increases were finalized, at least in part, to address the funding issues at USCIS, so it will be interesting to see how USCIS responds to the ruling. As Melina V. Villalobos discusses in further detail, Acting Secretary of Homeland Security Chad F. Wolf’s uncertain appointment status was a factor in the decision.

Visa Ban Blocked. It was a busy week for federal judge Jeffrey White, who not only blocked the aforementioned USCIS fee increases, but also blocked President Trump’s June 22, 2020, proclamation banning H-1B, H-2B, J-1, and L-1 visa holders from entry into the United States. Judge White ruled that “[t]he proclamation completely disregards both economic reality and the pre-existing statutory framework.” (Other than that, how was the play, Mrs. Lincoln?) Importantly, the injunction applies only to the plaintiff associations and their members who brought the case.

High-Skilled Proposals Withdrawn? Not so Fast. On September 30, 2020, USCIS formally withdrew its H-1B reform proposal from the Office of Information and Regulatory Affairs (OIRA). On the same day, the U.S. Department of Labor (DOL) also withdrew its proposal on prevailing wage rates from OIRA. These were definitely odd developments that had many immigration policy watchers initially scratching their heads. However, it later became evident that OIRA had waived its review of the proposals and indicated its action with a “withdrawn” designation. This means that the proposals are back in the hands of USCIS and the DOL and could issue at any time.

Major Employment Reform Legislation Introduced. In likely response to the recent proposal of the DOL’s Wage and Hour Division concerning independent contractors under the Fair Labor Standards Act (FLSA), Senators Patty Murray (D-WA) and Sherrod Brown (D-OH), along with Representative Rosa DeLauro (D-CT), introduced the Worker Flexibility and Small Business Protection Act of 2020, which specifically addresses independent contractors and temporary workers. The bill would make numerous sweeping changes to federal employment laws. Notably, it would:

• codify California’s “ABC test” for independent contractors as part of most federal labor and employment laws;
• greatly expand joint-employer tests throughout labor and employment laws, and extend liability to certain owners, officers, and shareholders;
• create a “standalone violation” for incorrectly classifying a worker as an independent contractor, rather than an employee;
• set unique wage and hour standards for certain “transportation and network dispatching workers”;
• require temporary employees to be paid the same as “direct” employees and require that temporary employees be converted to “direct” employees after one year of service;
• amend the FLSA to include a “private attorneys general” provision;
• require an employer with 100 or more employees to file with the DOL a “supply chain responsibility plan” describing its processes for ensuring that its suppliers and vendors do not violate labor and employment laws in the United States and abroad; and
• require an employer to publicly post on its website and main entryways its labor and employment law compliance record and “rating” over the last three years, including through the use of—we’re not joking—emojis.

Of course, the bill is unlikely to move forward in the current Congress, but the situation could change dramatically if Democrats control the Senate in 2021. The bill would provide quite a one-two punch along with the Protecting the Right to Organize (PRO) Act of 2019, another major piece of labor legislation that congressional Democrats have proposed.

DOL Releases Union Financial Transparency Proposal. On September 30, 2020, the DOL’s Office of Labor-Management Standards released a proposed rule that would expand labor unions’ financial disclosure requirements under the Labor-Management Reporting and Disclosure Act of 1959. The proposal revisits some changes that were finalized in a 2009 rule but which were subsequently rescinded by the Obama administration. Comments will be due 60 days after publication in the Federal Register.

Pupil Becomes the Master. If confirmed, Judge Amy Coney Barrett will become the ninth Supreme Court justice to have previously clerked for a justice of the Supreme Court. Judge Barrett clerked for Justice Antonin Scalia from 1998 to 1999. Other justices who have served double duty are:

• Byron White, who clerked for Chief Justice Fred M. Vinson;
• William Rehnquist, who clerked for Justice Robert Jackson;
• John Paul Stevens, who clerked for Justice Wiley Rutledge;
• Stephen Breyer, who clerked for Justice Arthur Goldberg;
• John Roberts, who clerked for [then-Associate Justice] William Rehnquist;
• Elena Kagan, who clerked for Justice Thurgood Marshall;
• Neil Gorsuch, who clerked for both Justice Byron White and Justice Anthony Kennedy, and became the first justice to serve on the Court alongside his former boss; and
• Brett Kavanaugh, who clerked for Justice Kennedy.

Judge Barrett would also be the only member of the current Supreme Court to have graduated from a law school other than Harvard or Yale.