Beltway Buzz – Ogletree & Deakins
- PFA Passes House. On April 15, 2021, the U.S. House of Representatives passed the Paycheck Fairness Act by a vote of 217–210 (one Republican voted “yea”). The bill will face an uphill climb in the U.S. Senate due to the legislative filibuster.
- Workplace Violence Bill Passes House. On April 16, 2021, the Workplace Violence Prevention for Health Care and Social Service Workers Act passed the House by a vote of 254–166 (38 Republicans voted “yea”).
- Liquidated Damages Return to DOL. The U.S. Department of Labor’s (DOL) Wage and Hour Division announced that effective April 9, 2021, it had “return[ed] to pursuing pre-litigation liquidated damages” in lieu of litigation. The previous administration stopped the practice in order to encourage economic recovery during the pandemic.
- California Safety Regulator to Be Nominated to Run OSHA. The White House announced that President Joe Biden will nominate Douglas L. Parker to be assistant secretary of labor for the Occupational Safety and Health Administration (OSHA). Parker currently serves as chief of California’s Division of Occupational Safety and Health, which is often referred to as Cal/OSHA.
- USCIS Vet to Be Nominated for Top Role. President Biden will nominate Ur Jaddou to be director of U.S. Citizenship and Immigration Services (USCIS). An attorney with experience on Capitol Hill and in the U.S. Department of State, Jaddou previously served as USCIS chief counsel. USCIS has not had a director confirmed by the Senate since May 2019.
PRO Act Update: Manchin Supports; ABA Opposes Persuader Provision. Senator Joe Manchin (D-WV) made waves this week by signing on as a co-sponsor to the Protecting the Right to Organize (PRO) Act. The sweeping labor bill, which passed the House on March 9, 2021, now has 47 cosponsors in the U.S. Senate—all Democrats. Labor unions will now focus their lobbying efforts on the remaining three holdout Democrats: Senators Kyrsten Sinema (AZ), Mark Kelly (AZ), and Mark Warner (VA). Majority Leader Chuck Schumer (D-NY) has promised to bring the bill to the Senate floor for a vote if the bill gets 50 cosponsors. As a reminder, the legislative filibuster essentially means that 60 votes will be needed to pass the bill.
Furthermore, this week the American Bar Association (ABA) sent a letter to Majority Leader Schumer, Minority Leader Mitch McConnell (R-KY), and Republican and Democratic leaders of the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) objecting to the “persuader” provisions of the PRO Act as “deeply flawed.” In the letter, the ABA states that it opposes the provision because, among other reasons, it “would seriously undermine both the confidential attorney-client relationship and employers’ fundamental right to legal counsel.”
OSHA Issues New Guidance on COVID-19 Vaccines. If an employee has an adverse reaction to a COVID-19 vaccine, is the employer required to record this in its workplace illness logs? Does it matter if the employer requires employees to be vaccinated as a condition of employment? How about if the employer merely recommends vaccination? OSHA answered these questions this week, and Melissa A. Bailey and J. Davis Jenkins have the details.
NLRB Retains Contract Bar Doctrine. On April 21, 2021, the National Labor Relations Board (NLRB) issued a bipartisan decision retaining its contract bar doctrine, which bars union elections during the term of a collective bargaining agreement for up to three years. Much of the decision focused on the underlying facts of the case—particularly whether the relevant union security clause was unlawful—rather than the policy merits of the contract bar doctrine.
DOL Nominee Advances. On April 21, 2021, the Senate HELP Committee advanced the nomination of Julie Su to be deputy secretary of labor. The mainly party-line vote perhaps portends a similar breakdown for Su’s vote on the Senate floor. Readers may recall that Su serves as secretary of the California Labor and Workforce Development Agency. If Su and the prospective OSHA assistant secretary Doug Parker (mentioned above) are confirmed, the DOL could advance a policy agenda that has a decidedly California feel.
DHS to Make More H-2B Visas Available. On April 20, 2021, the U.S. Department of Homeland Security (DHS) announced that it would make available an additional 22,000 H-2B visas “in the coming months.” According to DHS, “[t]he supplemental increase will require businesses seeking H-2B workers to engage in additional recruitment efforts for U.S. workers.” DHS stated that it would publish an interim final rule in the Federal Register that “will allow employers to immediately hire H-2B workers who are already present in the United States.”