Beltway Buzz – Ogletree & Deakins
Breyer to Retire. This week, Supreme Court Justice Stephen Breyer notified President Joe Biden of his intention to retire at the end of the Court’s current term. (Here is what Justice Breyer’s colleagues had to say about him.) Interestingly, Justice Breyer indicated that his retirement would perhaps be conditioned on the confirmation of his successor. President Biden stated that he expected to announce a nominee by the end of February 2022, and he also stated the following:
The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court.
While the nomination process will likely be the usual political spectacle that we have come to expect, the president’s nominee should be able to secure the 51 votes needed for confirmation. Appointing a justice to the Supreme Court of the United States will undoubtedly provide President Biden with a political boost, but it also could divert time and energy from his legislative agenda. The Buzz will be monitoring the impact that the nomination process has, if any, on current efforts on Capitol Hill. (For more on Justice Breyer and his role in shaping labor and employment law, please see “Justice Breyer on Labor and Employment Law” below.)
OSHA Withdraws Vax-or-Test ETS. Seeing the writing on the wall after the Supreme Court’s recent ruling on the Occupational Safety and Health Administration’s (OSHA) vaccinate-or-test emergency temporary standard (ETS), the workplace safety agency formally withdrew its ETS this week. But as Michael Oliver Eckard has noted, OSHA’s withdrawal of the ETS, effective January 26, 2022, does not necessarily mean that the agency won’t move forward with rulemaking on a more targeted permanent standard. As for the state of play surrounding other federal COVID-19–related orders, Leigh M. Nason has you covered.
DOL Pushes for “Good Jobs.” Late last week, the U.S. Department of Labor (DOL) launched its “Good Jobs” initiative that is intended to help stakeholders “as they seek to improve job quality, and create access to good union jobs—free from discrimination and harassment—for all workers and job seekers.” In a speech announcing the initiative, Secretary of Labor Marty Walsh stated:
We are going to work across federal agencies to build job quality standards into government contracting and grant making. That means not just minimum wages but prevailing wages, paid leave, registered apprenticeships, and pre-apprenticeships that open up opportunities for women, people of color, and underserved communities.
At the moment, it is hard to know exactly what this means, but reading between the lines, the initiative could forecast more requirements for federal contractors. For example, when Secretary Walsh talks about building “job quality standards into government contracting,” that sounds a lot like former president Barack Obama’s Fair Pay and Safe Workplaces executive order, or a “high road” contracting policy that would favor employers that offer certain levels of pay and benefits. The Buzz will be monitoring this effort as it unfolds.
New Federal Contractor Minimum Wage. Speaking of federal contractors, pursuant to President Biden’s Executive Order 14026, “ Increasing the Minimum Wage for Federal Contractors,” and its implementing regulations, beginning on January 30, 2022, the minimum wage for non-tipped workers performing work on or in connection with covered federal contracts will increase to $15 per hour. Beginning January 1, 2023, and each year thereafter, the minimum wage will increase by an amount determined by the secretary of labor.
OT Reg Battle Coming. This week, a group of 110 business organizations led by the Partnership to Protect Workplace Opportunity sent a letter to Secretary Walsh asking for stakeholder meetings in advance of any proposal to amend regulations implementing the Fair Labor Standards Act’s overtime provisions. As the Buzz previously discussed, the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions indicates that the DOL’s Wage and Hour Division will issue such a proposal this April. As we have seen over the last two administrations, amending the overtime regulations is never an easy lift. Current economic conditions—inflation, hiring and retention issues, increased remote work—lead the Buzz to believe that the process this time around might be even more contentious. Stay tuned.
Justice Breyer on Labor and Employment Law. Nominated by President Bill Clinton, Stephen Breyer was sworn in as an associate justice of the Supreme Court on August 3, 1994, replacing the retired justice Harry Blackmun. Over the decades, Justice Breyer participated in dozens of labor and employment–related cases (both in the majority and in dissent). He authored majority opinions clarifying the scope of Title VII of the Civil Rights Act of 1964’s anti-retaliation provision and holding that paid union organizers are “employees” under the National Labor Relations Act. Justice Breyer also penned a 5–4 decision in 2002, holding that a requested accommodation under the Americans with Disabilities Act that conflicted with a seniority system was not “reasonable.” The case was one of several that paved the way for passage of the Americans with Disabilities Act Amendments Act of 2008. Last but not least, in 2014 Justice Breyer dug deep into the history books to write the opinion of the Court holding that the U.S. Constitution’s Recess Appointments Clause did not permit presidential appointments (in this case, to the National Labor Relations Board) to be made during brief recesses of the U.S. Senate. Justice Breyer’s thoughtful judicial opinions have helped shape our national jurisprudence in these significant employment policy areas.