Beltway Buzz – Ogletree Deakins
Debt Ceiling Debate Deadlock. Over the years, the Buzz has bemoaned our elected officials’ penchant for brinksmanship, but the current situation is getting ridiculous. Once again, negotiations over raising the debt ceiling took center stage in Washington, D.C., this week. Like most disputes in life, it all comes down to money, with Republicans seeking less spending in the coming fiscal year, while Democrats insist on a “clean” bill to raise the debt ceiling. A deal remains elusive, and it is probably not great that the U.S. House of Representatives is scheduled to be out next week (though members will be instructed to return to D.C. within twenty-four hours if needed). According to the latest update from Treasury Secretary Janet Yellen, “it is highly likely that Treasury will no longer be able to satisfy all of the government’s obligations if Congress has not acted to raise or suspend the debt limit by early June, and potentially as early as June 1.”
EEOC Issues More Guidance on Use of Artificial Intelligence. Last week, the Buzz discussed the U.S. Congress’s nascent role in setting parameters for the use of artificial intelligence (AI) technology. Not to be outdone by Congress, late last week, the U.S. Equal Employment Opportunity Commission—which has already acknowledged such technology’s potential impact on discrimination law—issued a second guidance document on the subject. Specifically, the guidance document addresses how the use of “algorithmic decision-making tools” can have a disparate impact on applicants in a way that violates federal anti-discrimination law. EEOC cautions employers that they may be held responsible if their algorithmic tools discriminate against job candidates, even if the tools are designed or administered by outside vendors. Jennifer G. Betts, Danielle Ochs, and Zachary V. Zagger have the details. One thing to keep in mind as our regulators attempt to address the proliferation of AI in the workplace: Title VII of the Civil Rights Act of 1964 does not grant EEOC substantive rulemaking authority.
DOL Issues PUMP Act Guidance. On May 17, 2023, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued a field assistance bulletin (FAB) providing guidance for agency officials who are enforcing the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The memo clarifies the following issues:
- Break time. DOL emphasizes that the “frequency, duration, and timing of breaks” to pump breast milk will vary depending on the employee and child, and that while a break schedule may be agreed to, the employer can’t implement a fixed schedule that does not work for the employee. Further, this “may need to be adjusted” as the employee’s needs change.
- Compensation. Unless otherwise required by law, employers are not required to compensate nonexempt employees who break to pump breast milk, but “[s]hort breaks, usually 20 minutes or less, provided by the employer must be counted as hours worked.” If the employee is not completely relieved of her duties while pumping, the time must be compensated.
- Space requirements. The PUMP Act requires employers to providing pumping employees with a non-bathroom space that is shielded from view and free from intrusion. DOL suggests a sign or lock for the space and notes that “[t]he location must be functional as a space for pumping.” This means the space must contain a chair and a table or counter, and ideally should have access to electricity and a sink nearby.
The memo also details the exemption for crewmembers of air carriers, the exemption for small employers that can demonstrate that compliance requires an undue hardship, the delayed application (beginning December 29, 2025) for rail carriers and motor coach services operators, and encourages employers to post an updated Fair Labor Standards Act (FLSA) poster.
House Committee Shines Light on NLRB Actions. On May 23, 2023, the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, “Protecting Employees’ Rights: Ensuring Fair Elections at the NLRB.” During the hearing, Republicans and their witnesses focused on National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo’s April 2022 memo limiting employer speech, as well as her ongoing efforts to install a card check union representation process. In addressing this later issue, one witness wrote, “The failure to achieve legislative support for card check strongly suggests the Board lacks the power to enact it on its own.” On the other hand, a union lawyer testified in favor of limiting employer’s statutory rights to discuss the pros and cons of unionization with employees, advocated for electronic voting in union representation elections (which has been found to be prone to fraud and coercion), and encouraged Congress to pass the Protecting the Right to Organize (PRO) Act.
Bipartisan Immigration Bill Lands in House. This week, a bipartisan group of House members introduced the “Dignity for Immigrants while Guarding our Nation to Ignite and Deliver the American Dream Act of 2023” (DIGNIDAD (Dignity) Act of 2023) (H.R. 3599). The ambitious bill would overhaul the entire immigration system. Among other changes, the bill would:
- institute mandatory E-verify;
- only count the applicant (not spouse or children) toward the high-skilled visa cap;
- provide work authorization to H-1B spouses;
- staple an O visa to the diplomas of science, technology, engineering, and mathematics (STEM) Ph.D. graduates to allow them to work in the United States;
- provide funding to improve visa processing at U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of State, and the Office of Foreign Labor Certification at DOL;
- codify the Flores settlement agreement regarding standards for the detention, treatment, and release of unaccompanied minors;
- establish five humanitarian campuses along the U.S. southern border and an additional five campuses in Latin America where asylum seekers will reside while their case is decided, ending “catch and release”;
- provide Dreamers and Deferred Action for Childhood Arrivals (DACA) recipients “with conditional permanent resident status for 10 years” and “an earned pathway to adjust to lawful permanent resident status”;
- provide a conditional program for undocumented immigrants to earn legal status through a series of background checks, restitution, payment of back taxes, etc.; and
- modernize the H-2A guest worker program by providing a year-round agricultural workforce and simplifying the wage and petition processes.
Of course, with a bill this sweeping, there are provisions that some groups are going to like and provisions that some groups aren’t going to like. The solution, of course, would be some type of legislative compromise, which is a tall order in our current political climate.