Beltway Buzz – Ogletree & Deakins
Congress Is Back. Summer break is over, and like the many children who have recently returned to school, our congressional lawmakers returned to Washington, D.C., this week to kick off a four-week stint before they leave to campaign ahead of the November elections. Democrats in the U.S. House of Representatives and U.S. Senate hope to register some last-minute legislative victories during this period and gather momentum for the campaign trail, recognizing that unified Democratic control of Congress might not carry over into 2023. During the next few weeks, Congress will likely focus on judicial branch confirmations, federal government funding (a likely continuing resolution will extend the deadline to sometime in December), military spending, and prescription drug pricing, among other issues.
Senate to Vote on Respect for Marriage Act? In addition to the aforementioned priorities, Senate Democrats are moving closer to a floor vote on the Respect for Marriage Act (H.R. 8404), which would, among other things, codify protections for same-sex marriage rights. The House passed the bill in July 2022 by a vote of 267–157, with 47 Republicans voting in favor of it. Proponents of the legislation need ten Republican senators to support their effort to defeat the legislative filibuster. If the act does not pass during this session of Congress, it will have to be reintroduced in the 118th Congress, and its proponents will have to start the legislative process from scratch. The Buzz will be monitoring the process as it unfolds.
NLRB Proposes New Joint-Employer Rule. On September 7, 2022, the National Labor Relations Board (NLRB) issued a notice of proposed rulemaking (NPRM) entitled “Standard for Determining Joint-Employer Status.” The proposal is the latest salvo in the nearly decade-long policy battle over the test for determining when multiple employers are “joint employers” of certain employees. In this latest effort, the Board proposes rescinding the 2020 joint employer rule and replacing it with a standard—very similar to 2015’s Browning-Ferris Industries (BFI) test—that would find joint employment “with evidence of indirect and reserved forms of control, so long as those forms of control bear on employees’ essential terms and conditions of employment.” Mark Kisicki has the details.
Members John F. Ring and Marvin E. Kaplan dissented from the majority’s decision to engage in rulemaking, arguing that there was “no valid justification” for overturning the 2020 rule, particularly since it had not been applied in a single case. Their dissent also criticized the proposed rule for its lack of clear guidance, which could create uncertainty for the regulated community. Substantively, Ring and Kaplan argued that the proposed rule “would not merely return the Board to the BFI standard but would implement a standard considerably more extreme than BFI” because it would “make a never-exercised contractual reservation of right to control, or indirect control of or influence over a single term or condition of employment deemed ‘essential,’ determinative of joint-employer status.” (Emphasis in original.) Comments on the proposed rule are due by November 7, 2022, and reply comments are due by November 21, 2022.
NLRB Restricts Workplace Dress Codes. Speaking of the NLRB, last week the Board issued a 3–2 decision that restricts employers’ ability to enforce workplace dress codes. The case involved an area of a car manufacturing facility in which employees were required to wear black company-branded shirts, as well as black cotton pants with no buttons, rivets, or exposed zippers. The purpose of the uniform was to prevent damage to the cars during production and to help distinguish among different groups of employees. While the employer permitted employees to display union insignias on stickers worn on their shirts, it did not allow employees to wear union shirts.
The Board ruled that this practice was unlawful, holding that “when an employer interferes in any way with its employees’ right to display union insignia, the employer must prove special circumstances that justify its interference.” (Emphasis in original.) While dissenting members Ring and Kaplan agreed that “displaying union insignia in the workplace is an important way employees exercise their rights under Section 7 of the National Labor Relations Act,” they argued that the majority decision “effectively nullifies the legitimate interests served by employer dress codes by requiring that employees be permitted to disregard the dress code whenever they wish to substitute an item of union apparel, unless special circumstances are shown.” The dissent continued, “In other words, an employer’s right to maintain a dress code and insist on compliance with it is now the exception, not the rule—and even the exception may prove illusory.”