Beltway Buzz – Ogletree & Deakins
RIP, Richard Trumka. AFL-CIO President Richard Trumka died unexpectedly this week at the age of 72. A former coal miner, Trumka became president of the United Mine Workers of America in 1982. He was just 33 years old at the time. Trumka was elected AFL-CIO secretary-treasurer in 1995 and then AFL-CIO president in 2009. Senate Majority Leader Chuck Schumer (D-NY) broke the sad news on the floor of the U.S. Senate. National Labor Relations Board (NLRB) Chair Lauren McFerran described Trumka as “a steadfast defender of the rights protected by the [National Labor Relations Act] and importance of the work of the Board.” Speaker Pelosi has already discussed renaming the Protecting the Right to Organize (PRO) Act after the late labor leader.
It’s Infrastructure Week! The U.S. Senate this week began debating the Infrastructure Investment and Jobs Act (H.R. 3684), the 2,700-page infrastructure bill that has been the subject of heated negotiations over the last several weeks. (As a point of reference, the first published edition of Leo Tolstoy’s War and Peace was merely 1,225 pages long.) Here are a few things to note about the bill and the process going forward.
Hard infrastructure. The bill provides $1.2 trillion in funding for the building and repair of roads, bridges, ports, airports, public transit, broadband, power grid modernization, and other projects. The bill also takes steps to address climate change (it provides funding related to electric vehicles, alternative fuels, and carbon capture, for example), shrink red tape associated with major construction projects, and reduce pollution.
No PRO Act. Importantly, the bill does not contain provisions of the PRO Act, and it does not address paid leave, child care, Medicare expansion, unemployment insurance reforms, or other “social infrastructure” matters. Congressional Democrats plan to address these and other issues in subsequent legislation using the reconciliation process, which would allow them to pass such a bill with a simple majority vote.
ERTC shortened. Employers may want to note that the employee retention tax credit (ERTC), which was established by the CARES Act and extended in the American Rescue Plan Act of 2021, will terminate early under the bill. Currently, employers can claim the retention credit through the end of 2021, but this date would be pushed forward to October 1, 2021 (though certain small businesses that began operations in 2020 may claim the credit for the remainder of 2021). The provision is included as a funding mechanism for the bill.
Bipartisan push. The bill has significant bipartisan support, as 17 Senate Republicans voted with all Democrats to begin debate on the bill. In addition, the bill enjoys support from groups such as the National Association of Manufacturers and the U.S. Chamber of Commerce, as well as from the AFL-CIO.
What comes next? As for timing (always hard to predict), Senate Majority Leader Chuck Schumer has indicated that he would like to wrap up the amendment process quickly, which means that final passage of the legislation could take place sometime next week or sooner. Assuming the bill passes the Senate, the U.S. House of Representatives will then have an opportunity to address it. Speaker of the House Nancy Pelosi has promised that she would not address the bill until the second “social infrastructure” bill passes the Senate. This all means that we could be continuing this discussion about both bills into the fall.
Pregnancy Accommodation Bill—One Step Closer to Law? On August 3, 2021, the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) advanced the Pregnant Workers Fairness Act (PWFA) (H.R. 1065). The lopsided 19–2 committee vote on approval perhaps portends a favorable outcome for the bill on the Senate floor. The PWFA—which would require employers to make reasonable accommodation for pregnant workers (such as by providing more frequent bathroom breaks or easing lifting requirements)—has been on the Buzz’s radar for a while now. With this action this week, the bill moves one step closer to President Joe Biden’s desk.
Weil Nomination Slowed. In other Senate HELP Committee news, the committee voted 11–11 on David Weil’s nomination to be administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division. This means that Weil’s nomination (similar to the nomination of NLRB General Counsel Jennifer Abruzzo) will need an additional vote from the full Senate in order to be discharged from the committee. Weil has the numbers on his side (ever so slightly), and he, like Abruzzo, will likely be confirmed in due course.
As the Buzz has previously discussed, Weil is known for his views on the “fissured workplace,” as well as a narrow interpretation of what it means to be an “independent contractor” and an expansive interpretation of “joint employer.”
Fed. Contractor Minimum Wage Reg. Deadline (Slightly) Extended. The DOL extended the deadline for stakeholders to submit comments in response to the proposed regulations implementing an increase in the minimum wage for certain employees of federal contractors. Interested parties probably should not think about booking a late-summer vacation, though: the period has only been extended from the original date of August 23, 2021, to August 27, 2021.
Congress Continues to Target Arbitration. House Democrats have reintroduced the Restoring Justice for Workers Act, which would “prohibit predispute arbitration agreements that require arbitration of work disputes.” The bill represents yet another front in the political battle over arbitration agreements. As the Buzz noted recently, another bill in the 117th Congress—the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (H.R. 4445/S. 2342)—proposes to limit the enforceability of certain arbitration agreements.