Congress This Week
Congress is preoccupied with the following this week, not leaving their limited capacity for much else:
- President Trump’s taxes
- Barrett Nomination to the Supreme Court
- Passing a Continuing Resolution to keep the federal government open past September 30th
- The first Trump-Biden debate Tuesday night
- Passing another COVID-19 relief bill, with the House releasing its $2.2 trillion package on Monday night. This is $1 trillion less than the House passed in May but is $1.2 trillion higher than the Senate tried to pass two weeks ago. Not much time or oxygen left for this to pass.
- Two iron-age civilizations shooting at each other with Turkey and Russia behind the curtain
- The continuing COVID-19 toll
Beltway Buzz – Ogletree & Deakins
Battle for SCOTUS.
With Justice Ginsburg’s passing comes another fight over control of the Supreme Court. While there was initially much speculation about the Republicans’ ability and willingness to fill Justice Ginsburg’s seat, that speculation quickly ceased. The question now is not “if” Republicans will fill the seat, but rather “when.” President Trump is expected to name a nominee on September 26, 2020, and Republican leaders in the U.S. Senate have indicated that they would like a confirmation vote prior to the November 3, 2020, elections. As a result, at least some Democratic Senators are already threatening to end the filibuster if they gain a majority in the Senate after the elections. Whatever happens, the impact of Justice Ginsburg’s death on jurisprudence, policy, and the law will be felt for years to come.
Executive Order on Contractor Diversity and Inclusion Efforts.
On September 22, 2020, President Trump issued an executive order (EO), titled “Executive Order on Combating Race and Sex Stereotyping.” The EO, which follows on the heels of a similar memorandum from the Office of Management and Budget that applies to federal agencies, prohibits federal contractors from engaging in “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” Other requirements in the EO, such as a posting requirement and prescribed contract language, as well as what this all means for contractors, will be covered in depth by Ogletree Deakins’ Diversity and Inclusion and Affirmative Action/OFCCP practice groups. The requirements of the EO go into effect for contracts entered into on or after November 21, 2020.
Independent Contractor Proposal Drops.
On September 25, 2020, the U.S. Department of Labor’s Wage and Hour Division issued a notice of proposed rulemaking regarding independent contractor status under the Fair Labor Standards Act. The proposal focuses on “economic dependence” as the “ultimate inquiry” when determining whether a worker “is in business for him- or herself” (independent contractor), or is dependent on another entity for work (employee). The proposal also identifies two core factors that are the most probative in determining independent contractor status: (1) “the nature and degree of the individual’s control over the work”; and (2) the individual’s “opportunity for profit or loss.” Comments are due on or before October 26, 2020, as the administration will likely hurry to finalize the regulation before the end of the year.
EEOC Nominees Confirmed. This week, the Senate confirmed Republicans
Keith E. Sonderling and Andrea R. Lucas, as well as Democrat Jocelyn Samuels, to the U.S. Equal Employment Opportunity Commission (EEOC). They join current Republican chair Janet Dhillon and Democrat Commissioner Charlotte A. Burrows to give the EEOC a full complement of commissioners. Because of the commissioners’ staggered terms, Republicans will maintain their majority on the EEOC through June 2022.
Commissioner Victoria A. Lipnic will now step down after serving 10 years on the Commission. Among Lipnic’s accomplishments was her work, along with former commissioner Chai R. Feldblum, on the “EEOC Select Task Force on the Study of Harassment in the Workplace,” which warned of the continuing pervasiveness of sexual harassment in the workplace well before high-profile stories were published in the media.