Beltway Buzz – Ogletree & Deakins
Congressional Drama. There was drama this week on Capitol Hill, as Congress juggled four major issues: funding for the federal government, a bipartisan bill to rebuild our nation’s infrastructure, a $3.5 “human infrastructure” bill, and the looming debt limit crisis. Here is what happened:
- On September 30, 2021, Congress passed a short-term appropriations bill to narrowly avoid a federal government shutdown after the Democrats agreed to remove a provision that would have increased the debt limit. The bill continues funding only through December 3, 2021, so the shutdown threat will resume in just a few weeks. Federal contractors should be wary.
- Democrats continued to rethink their strategy on the “human infrastructure” bill (which includes federal paid leave, adds unfair labor practices and penalties to the National Labor Relations Act, and increases fines under the Fair Labor Standards Act and the Occupational Safety and Health Act) after it was revealed that Senator Joe Manchin (D-WV) would not agree to spend more than $1.5 trillion. As the Buzz wrote previously about the bill, “one Democratic defector could scuttle the whole thing.”
- Also, on September 30, 2021, Speaker Nancy Pelosi (D-CA) delayed a vote in the U.S. House of Representatives on the bipartisan infrastructure bill after members of the Congressional Progressive Caucus threatened to tank the bill in light of the uncertainty surrounding the human infrastructure bill. The House is scheduled to reconsider the bipartisan infrastructure bill today, October 1, 2021.
- Absent congressional action, the United States will default on its nearly $29 trillion national debt obligations by October 18, 2021. Congress made no tangible progress on this issue this week and—shockingly!—kicked this can down the road.
Guidance on Federal Contractor Vax Mandate. On September 24, 2021, just after the Buzz was published last week, the Safer Federal Workforce Task Force issued guidance implementing President Biden’s Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” Highlights of the guidance include the following:
- Covered federal contractor employees must be vaccinated against COVID-19 by December 8, 2021. (Unlike the Occupational Safety and Health Administration’s [OSHA] pending COVID-19 emergency temporary standard [ETS], there is not a testing alternative.) Accommodations may be available for employees with disabilities or sincerely held religious beliefs.
- The guidance covers “service contracts and contract-like instruments” valued at more than $250,000, but does not cover “subcontracts solely for the provision of products.” Requirements of the guidance flow down to lower-tier subcontracts.
- The vaccination requirement covers employees “working on or in connection with a covered contract or working at a covered contractor workplace.” This includes some remote employees and employees who might not even be working on or in connection with a covered contract.
- The guidance states that covered contractors subject to OSHA’s forthcoming COVID-19 ETS or “other workplace safety standards” must still comply with the COVID-19 protocols set forth in the guidance.
NLRB GC: College Athletes Are Employees. On September 29, 2021, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to regional officers stating that “certain Players at Academic Institutions are employees under the Act and are entitled to be protected from retaliation when exercising their Section 7 rights.” There are some other noteworthy points in the memorandum:
- Misclassification as a ULP. The general counsel states, “[B]ecause those Players at Academic Institutions are employees under the Act, … I will pursue an independent violation of Section 8(a)(1) of the Act where an employer misclassifies Players at Academic Institutions as student-athletes.”
- Social Activism is PCA. “Activism concerning … racial justice issues, including openly supporting the Black Lives Matter movement, directly concerns terms and conditions of employment, and is protected concerted activity.”
- Joint Employer. The memorandum also notes that the general counsel may pursue joint-employer theories of liability and “will consider pursuing charges against an athletic conference or association even if some member schools are state institutions.”
USCIS Proposes DACA Reg. On September 28, 2021, U.S. Citizenship and Immigration Services (USCIS) proposed a rule to reinstate and reaffirm the Deferred Action for Childhood Arrivals (DACA) program after it was enjoined by a federal court in July 2021. The eligibility requirements in the proposed regulation are very similar to the requirements of the program created in a June 2012 memorandum from then-secretary of homeland security Janet Napolitano. By going through the rulemaking process and seeking public comment, USCIS seeks to reestablish important antecedent procedural steps for establishing DACA that the federal court found were lacking.
COVID-19 Tax Credit Program Expires. September 30, 2021, was the last day of the federal program that allowed employers to receive tax credits for costs associated with voluntarily instituting COVID-19–related emergency paid sick leave and family leave policies. At this time, Congress does not appear to be interested in renewing the program.
Remembering Romualdo Pacheco. In honor of National Hispanic Heritage month, the Buzz shines the spotlight on José Antonio Romualdo Pacheco. Born in 1831 to a prominent family in California while the territory was still part of Mexico, Pacheco became a politician, statesman, and diplomat in the mid to late 1800s. Pacheco’s political career began in 1853 at age 22, when he became a judge in San Luis Obispo County. This position helped springboard Pacheco to higher office as California’s treasurer, and later, as the state’s lieutenant governor. In 1875, Pacheco became governor of California. He was elected to the U.S. House of Representatives three times in the late 1870s and early 1880s. Pacheco is the first and only Hispanic person to be governor of California, and he was the first Hispanic person to serve in the U.S. Congress.