Beltway Buzz – Ogletree Deakins
He’s Running. President Joe Biden announced this week that he will run for reelection in 2024. President Biden has stated that he is the most pro-union president in history, so the Buzz will not be surprised if labor and employment issues such as joint employment, independent contractor status, and overtime feature prominently during the 2024 campaign. Indeed, the president’s first stop upon announcing his reelection bid was a speech at a national labor union conference, perhaps foreshadowing what is to come in the coming months.
Senate Committee Advances Su’s Nomination. Julie Su’s nomination to be U.S. secretary of labor was approved this week by the U.S. Senate Committee on Health, Education, Labor and Pensions. The 11–10 vote was strictly on a party-line basis, with potential “on the fence” Republican senators Lisa Murkowski (R-AK) and Susan Collins (R-ME) both voting against Su’s nomination. In voting “no” on the nomination, Ranking Member Bill Cassidy (R-LA) stated, “Julie Su has a decades-long record of partisan activism and promoting policies that undermine workers to the benefit of politically connected labor unions.” The Senate is in the middle of a five-week work period, and the Buzz will be watching to see if Majority Leader Chuck Schumer (D-NY) pushes for a floor vote on Su’s nomination during this time. Of course, Senator Dianne Feinstein (D-CA) is still absent from the Senate as she recovers at home from shingles, so more than one Democratic defection could derail the nomination.
NLRB Continues to Push Boundaries of Available Remedies. A little less than two years ago, the Buzz discussed National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo’s instruction to regional directors to “request from the Board the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices.” At the end of 2022, the Board took the hint and issued a decision that expanded the types of damages that the Board may include in a “make-whole” remedy. Late last week, the Board issued a decision detailing “the potential remedies the Board will consider in cases involving respondents who have shown a proclivity to violate the Act or who have engaged in egregious or widespread misconduct.” Eric C. Stuart and Zachary V. Zagger have the details.
Civil penalties for labor violations are included in the Richard L. Trumka Protecting the Right to Organize (PRO) Act of 2023 legislation (H.R. 20), currently pending in the U.S. House of Representatives, as well as early iterations of the Build Back Better Act (which eventually resulted in the Inflation Reduction Act of 2022). As legislative efforts have been unable to make it through Congress, the Board appears to be trying to use its authority to enact stricter penalties on employers.
Federal Agencies Issue Joint Statement on Artificial Intelligence. This week, agency and division heads of the U.S. Department of Justice, U.S. Equal Employment Opportunity Commission, Consumer Financial Protection Bureau, and Federal Trade Commission issued a joint statement clarifying that “[e]xisting legal authorities apply to the use of automated systems and innovative new technologies just as they apply to other practices.” The joint statement warns that although artificial intelligence and algorithmic processes “offer the promise of advancement, their use also has the potential to perpetuate unlawful bias, automate unlawful discrimination, and produce other harmful outcomes.” While there are no substantive action steps set forth in the statement, the agency leaders conclude, “We also pledge to vigorously use our collective authorities to protect individuals’ rights regardless of whether legal violations occur through traditional means or advanced technologies.”
Republicans Introduce Joint Employer Bill. This week, Republicans in both the U.S. Senate and the U.S. House of Representatives introduced the Save Local Business Act. The legislation is intended to head off potential joint-employer regulatory changes being advanced by the administration by amending both the National Labor Relations Act and Fair Labor Standards Act to clarify that an entity is a joint employer only if it “directly, actually, and immediately, exercises significant control over the essential terms and conditions of employment of the employees of the other employer.” The House passed a previous version of the bill in 2017.
OSHRC Grinds to a Halt. Amanda Wood Laihow’s term as commissioner of the three-member U.S. Occupational Safety and Health Review Commission (OSHRC) expired on April 27, 2023. Laihow’s departure leaves OSHRC with only one member—Chair Cynthia Attwood—and therefore without a quorum to decide cases. In this scenario, employers seeking to appeal Occupational Safety and Health Administration (OSHA) citations to the commission will be left in the lurch. At this time, President Biden has not nominated anyone to replace Laihow.