Beltway Buzz – Ogletree Deakins
I Didn’t Get a Harrumph Outta That Guy. President Joe Biden delivered his first State of the Union Address this week. Though it was easy to miss in the speech, workplace policy observers may have noticed that the president briefly pushed for passage of the Paycheck Fairness Act, the Equality Act, paid leave, an increased minimum wage, the Protecting the Right to Organize (PRO) Act, and immigration reform. With so many significant issues swirling in Washington, D.C., as well as the looming midterm elections, these bills remain legislative long shots, though they provide a sense of the administration’s priorities.
POTUS Announces SCOTUS Pick. Late last week, President Biden nominated Ketanji Brown Jackson, currently a judge on the United States Court of Appeals for the District of Columbia Circuit, to fill Justice Stephen Breyer’s seat on the Supreme Court of the United States at the end of this term. Although confirmation hearings for Supreme Court justice nominees are always great political theater, many are expecting Judge Jackson to receive confirmation. (Several Republican senators voted to confirm her nomination to her current position.) Judge Jackson is already on the charm offensive, meeting with senators this week, and Senator Dick Durbin (D-IL)—who chairs the Senate Committee on the Judiciary—announced that Jackson’s confirmation hearings would begin on March 21, 2022, and conclude on March 24, 2022.
As for Judge Jackson’s judicial record on labor and employment issues, she authored a 2020 opinion invaliding certain provisions of the National Labor Relations Board’s 2019 election rule changes. Judge Jackson found that these provisions were not about the Board’s internal organization, procedure, or practice, and therefore should have been issued pursuant to the notice-and-comment rulemaking process.
Arbitration Carveout in Effect. On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. According to its terms, the new law “shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act.”
High-Skilled Immigration Reform Bill Reintroduced. This week, a bipartisan group of senators reintroduced the H-1B and L-1 Visa Reform Act of 2022, which is designed to “reduce fraud and abuse, provide protections for American workers and visa holders, and require more transparency in the recruitment of foreign workers.” Versions of the bill have been introduced in the U.S. Congress over the last fifteen years. The bill would make the following changes to immigration law:
- Require certain job-search requirements for all employers prior to filing labor condition applications
- Prohibit employers from replacing “a United States worker with 1 or more H–1B nonimmigrants”
- Prohibit the placement or outsourcing of H-1B nonimmigrants with another employer, absent a waiver
- Prohibit employers with fifty or more employees from hiring H-1B or L-1 visa holders if more than half of their workforces are H-1B or L-1 visa holders
- Establish an H-1B allocation process that prioritizes applicants’ skills and education, as well as the salaries they will earn and the petitioning employer’s immigration compliance record
- Amend the definition of “specialty occupation” to require the “attainment of a bachelor’s or higher degree in the specific specialty directly related to the occupation”
- Prohibit “B-1 visas in lieu of H-1B visas”
In addition to lead drafters, senators Chuck Grassley (R-IA) and Dick Durbin (D-IL), original cosponsors include senators Tommy Tuberville (R-AL) and Bernie Sanders (I-VT). Immigration politics certainly make for some unusual alliances.
House Vote on Antidiscrimination Bill Fails. A bill to make it unlawful for employers and other entities to discriminate against individuals on the basis of hair texture or style failed to pass the U.S. House of Representatives this week. The “Creating a Respectful and Open World for Natural Hair Act of 2021” or the “CROWN Act of 2021” (H.R. 2116) contains the following language applicable to the workplace:
It shall be an unlawful employment practice for an employer, employment agency, labor organization, … to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against an individual, based on the individual’s hair texture or hairstyle, if that hair texture or that hairstyle is commonly associated with a particular race or national origin (including a hairstyle in which hair is tightly coiled or tightly curled, locs, cornrows, twists, braids, Bantu knots, and Afros).
The vote was conducted via the suspension of the rules process, which allows for expedited consideration of proposed legislation, but also requires a supermajority of two-thirds of those voting in order to pass. The final vote tally was 235–188 (fifteen Republicans voted “yea”), suggesting that the bill will pass if proponents bring it up again under regular order (e.g., majority vote).
Legislation Would Restore Employee Retention Tax Credit. Bipartisan bills moving in both the U.S. Senate and U.S. House of Representatives would restore the COVID-19–related Employee Retention Tax Credit (ERTC) for the entirety of 2021. Established by the Coronavirus Aid, Relief, and Economic Security (CARES) Act in 2020, the ERTC was set to expire on January 1, 2022, allowing employers to receive tax credits for eligible wages paid throughout 2021. However, the Infrastructure Investment and Jobs Act, signed into law on November 15, 2021, retroactively cut short the period for eligible wages paid after September 30, 2021. The Employee Retention Tax Credit Reinstatement Act (S. 3625) would allow covered employers to receive an employment tax credit for qualifying wages and health plan expenses paid for all of 2021.