Beltway Buzz – Ogletree Deakins
POTUS Nominates Su to Lead DOL. This week, President Biden nominated Julie Su to serve as secretary of the U.S. Department of Labor (DOL) (the current secretary, Marty Walsh, is scheduled to leave his position later this month). In 2021, Su was confirmed as deputy secretary of labor by a party-line vote of 50-47 in the U.S. Senate. Su previously served as secretary of the California Labor and Workforce Development Agency. For the administration, not only is Su familiar with the current policy issues swirling around the Frances Perkins Building, but because she has already been confirmed by the Senate, her nomination also avoids a lengthy vetting and background check process that would have applied to any new, external candidate. Accordingly, the Buzz expects the current regulatory and enforcement agenda at the DOL to continue apace (and perhaps increase), despite the transition at the top.
Congress: ESG Not A-OK, We’ll Use CRA. This week, both the U.S. Senate and U.S. House of Representatives used the Congressional Review Act (CRA) to repeal the Employee Benefits Security Administration regulation entitled, “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights,” which was finalized on December 1, 2022. This regulation rescinds changes made in a 2020 rule that required fiduciaries of private-sector retirement plans governed by the Employee Retirement Income Security Act (ERISA) to “focus solely on the plan’s financial risks and returns and keep the interests of plan participants and beneficiaries in their plan benefits paramount.” In its place, the 2022 rule allows fiduciaries to weigh “the economic effects of climate change and other environmental, social, or governance [ESG] factors on the particular investment or investment course of action.” Of course, President Biden is not going to sign a resolution to scuttle a regulation promulgated by his own DOL. However, this week’s action is a likely harbinger of continued Republican scrutiny of ESG investing practices.
Child Labor in Focus. In the wake of recent high profile child labor violations, regulators and legislators in Washington, D.C., are stepping up efforts to address the issue. This week, DOL and the U.S. Department of Health and Human Services announced the formation of an interagency taskforce that will focus on vulnerable migrant children, and will, in part “jointly conduct education and training initiatives in relevant communities.” Additionally, DOL’s Wage and Hour Division will launch a strategic enforcement initiative on child labor which “will use data-driven, worker-focused strategies to initiate investigations where child-labor violations are most likely to occur.” Finally, it was reported this week that Senator Brian Schatz (D-HI) will soon introduce a bill to increase penalties for child labor violations. Substance of the bill aside, the political optics will definitely favor Senator Schatz and other proponents of the bill.
OFCCP Update. Federal contractors and subcontractors should be aware of the following actions from the Office of Federal Contract Compliance Programs (OFCCP):
- FOIA deadline. After several postponements, today (March 3, 2023) is the deadline for federal contractors to submit to the agency their objections to the agency’s release of their EEO-1 data pursuant to a Freedom of Information Act (FOIA) request.
- Religious clarification rule nixed. On March 1, 2023, OFCCP published a rule rescinding the 2020 rule entitled “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption.” That rule was “intended to correct any misperception that religious organizations are disfavored in government contracting by setting forth appropriate protections for their autonomy to hire employees who will further their religious missions, thereby providing clarity that may expand the eligible pool of federal contractors and subcontractors.” Now, the OFCCP argues that rescission of the 2020 rule is appropriate because it “increased confusion and uncertainty about the religious exemption, largely because it departed from and questioned longstanding Title VII precedents.” The rescission becomes effective on March 31, 2023.
PRO Act Reintroduced. This week, legislators in both the House and Senate introduced the Richard L. Trumka Protecting the Right to Organize (PRO) Act of 2023. The bill won’t get much traction in the Republican-controlled House. However, Democrats in the Senate will likely attempt to attract enough cosponsors to perhaps get a vote on the bill on the Senate floor. At the very least, Senate Democrats are likely to make the PRO Act the subject of hearings and debate, perhaps as early as next week.
H-1B Registration Opens. The initial registration period for the fiscal year 2024 H-1B cap opened on March 1, 2023, and will run through noon on March 17, 2023. U.S. Citizenship and Immigration Services (USCIS) will notify account holders by March 31, 2023, if their registration has been selected.
OSHA Reporting Deadline. Covered employers were required to submit their Form 300A summary data for calendar year 2022 to the Occupational Safety and Health Administration (OSHA) by March 2, 2023. In the meantime, OSHA has indicated that it will issue its final changes to expand this reporting requirement later this month.
Commerce Outlines CHIPS Funding Requirements. This week, the U.S. Department of Commerce’s National Institute of Standards and Technology released its workforce requirements for semiconductor manufacturers looking to apply for a share of $39 billion in incentives provided by the Creating Helpful Incentives to Produce Semiconductors and Science Act of 2022 (CHIPS Act). According to the release, “[a]pplicants are strongly encouraged to use PLAs [project labor agreements] in connection with their construction projects,” and Davis-Bacon Act prevailing wages will apply. Additionally, “applicants requesting Direct Funding over $150 million must submit a plan to