Beltway Buzz – Ogletree & Deakins
Congress and POTUS Act to Avert National Freight Rail Shutdown. The national freight rail dispute that the Buzz had been tracking for months has come to the end of the line. Several holdout labor unions had refused to ratify the tentative agreement brokered between rail companies and workers in September 2022, raising the possibility that a national freight rail strike would occur when the mandated cooling-off period expired on December 9, 2022. To avert a freight rail shutdown that could have cost the U.S. economy an estimated $2 billion per day, Congress and the president of the United States (POTUS) intervened this week to implement a binding labor agreement pursuant to authority conferred by the U.S. Constitution’s commerce clause and the Railway Labor Act of 1926. On November 30, 2022, the U.S. House of Representatives passed a joint resolution (H.J. Res. 100), implementing the parties’ tentative deal:
[T]he most recent tentative agreements, side letters, and local carrier agreements entered into by the covered parties that have not been ratified before the date of enactment of this joint resolution (including tentative agreements, side letters, and local carrier agreements that have failed ratification) shall be binding on such covered parties to such unresolved disputes, and shall have the same effect as though arrived at by agreement of such covered parties under the Railway Labor Act.
The resolution passed by a vote of 290–137, with 79 Republicans joining 211 Democrats in voting in favor of the resolution. On December 1, 2022, the U.S. Senate approved H.J. Res. 100 by a vote of 80–15. And on December 2, 2022, President Biden signed H.J. Res. 100 into law, codifying an agreement that includes a 24 percent wage increase over five years, a $5,000 bonus, increased schedule flexibility, and one additional paid day off.
Additionally, because paid sick time had been a sticking point between the parties, the House passed another resolution (H. Con. Res. 119) that would have added seven days of paid sick leave to the contract. However, that resolution failed in the Senate by a vote of 52–43, with Senator Joe Manchin (D-WV) being the only Democrat to vote no.
117th Congress Wrapping Up. Preventing a national rail shutdown was just one of several items on Congress’s to-do list during the current lame-duck session of the 117th Congress, as federal lawmakers scramble to wrap up legislative business ahead of the pending change in political power in the House in January 2023. Here are a few bills the Buzz is monitoring:
- Government and military funding. Funding for the federal government expires on December 16, 2022, and Congress has yet to pass its annual military funding authorization legislation (which it has passed for sixty-one straight years). The phrase “must-pass legislation” is used quite often in Washington, D.C., but these two bills truly fit that description. Passing these bills will be Congress’s top priority during this period.
- Pregnancy accommodation. Senate Majority Leader Chuck Schumer (D-NY) has been sitting on the Pregnant Workers Fairness Act (H.R. 1065) since April 2021. The bill enjoyed significant bipartisan support when it passed the House (ninety-nine Republicans voted in favor of the bill), is supported by the business community, and would very likely attract at least ten Republican votes in the Senate. If the Senate doesn’t act in the next several weeks, the bill will die and not be acted on in the 118th Congress.
- Marriage protections. On November 29, 2022, the U.S. Senate passed the Respect for Marriage Act (H.R. 8404) by a vote of 61–36. The bill enacts protections for same-sex and interracial marriages into federal law, essentially codifying the Supreme Court of the United States’ 2015 decision in Obergefell v. Hodges. The bill is different from what passed the House in July 2022, so the House will have to pass this new version—likely sometime next week.
- Eliminating country caps. Back in June 2022, the Buzz predicted that the Equal Access to Green cards for Legal Employment (EAGLE) Act of 2021—which would, in part, phase out the per-country cap for employment-based visas—might be addressed during the lame-duck session. While it is possible that the House may vote on the bill, it is unlikely to make it to the Senate floor.
NLRB News. Two recent newsworthy items coming out of the National Labor Relations Board (NLRB) are the following:
- NLRB funding plea. Board Chair Lauren McFerran and General Counsel Jennifer Abruzzo recently sent a letter to top congressional appropriators, warning them, “The Agency’s current funding level is impairing our ability to maintain staff capacity, both in headquarters and across 48 field offices …. [W]e will be forced to reduce our operational capacity, including likely furloughs of the dedicated career employees at the agency, unless Congress provides funding to cover these costs.” The Board has been funded at approximately $274 million since fiscal year (FY) 2014 and is requesting $319.4 million for FY 2023. With Republicans in control of the House and Democrats in control of the Senate, the appropriations debate is not going to get any easier.
- “Free Choice” proposal comment extension. The Board announced this week that it would extend the public comment deadline for its so-called “Fair Choice and Employee Voice” proposed rule. The original deadline was set for January 3, 2023, but interested stakeholders will now have until February 2, 2023, to submit comments. The proposed rule would rescind the Board’s April 2020 “Election Protection Rule” relating to “blocking charges,” employer voluntary recognition, and Section 9(a) recognition in the construction industry.
OFCCP Seeks More Info From Contractors. On November 21, 2022, the Office of Federal Contract Compliance Programs (OFCCP) issued a notice, pursuant to the Paperwork Reduction Act, of proposed changes to its Supply and Service Scheduling Letter and Itemized Listing (Scheduling Letter). The changes include, but are not limited to, the following:
- Contractors with a “campus-like setting” must submit information “for all AAPs [affirmative action programs] developed for campuses, schools, programs, buildings, departments, or other parts of [the] institution, or company” located in a particular city or state.
- A contractor will be required to “provide a list identifying all action-oriented programs designed to correct any problem areas identified” in its affirmative action program. This information is not currently at the preliminary stage, but according to OFCCP, “[a]dding this item to the letter will allow OFCCP to more thoroughly review contractors’ compliance in this important area, as well as enable OFCCP to understand the action-oriented programs that a contractor is undertaking as part of its AAPs at the beginning of a compliance review.”
- Contractors will be required to submit “[d]ocumentation of policies and practices regarding all employment recruiting, screening, and hiring mechanisms, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures.”
- Contractors will be required to provide more disclosure about their promotion and termination activities.
- A contractor will be required to submit both a current compensation snapshot, as well as a compensation snapshot from the previous year. According to OFCCP, “This change will benefit employees who may have been subject to pay discrimination that OFCCP is able to remedy and will provide OFCCP with more information to determine which cases are worth pursuing for further investigation.”
Comments are due by January 20, 2023.
POTUS Labor and Employment Nominees Advance. This week, the U.S. Senate Committee on Health, Education, Labor and Pensions approved the nominations of Jessica Looman to serve as the U.S. Department of Labor’s Wage and Hour administrator and Karla Gilbride to serve as general counsel of the U.S. Equal Employment Opportunity Commission. If they are not confirmed by the end of the current Congress, the candidates will have to be renominated in the 118th Congress, absent an agreement in the Senate.