Beltway Buzz - January 2023

The 118th Congress Is Here. Sort of. As required by the U.S. Constitution, the 118th Congress gaveled in on January 3, 2023. If there was any hope that a new year would bring new competence and cooperation within the U.S. Congress, that hope ended quickly, as the election for Speaker of the U.S. House of Representatives abruptly spiraled into an intraparty imbroglio for House Republicans. As of this writing, there is no Speaker of the House, which means that members of the House haven’t been sworn in and the House of Representatives is unable to conduct business. Assuming a Speaker will soon be elected, here is a glimpse of what the Buzz will be watching for in Congress in 2023:

• Chairman Bernie. In the U.S. Senate, Vermont Senator Bernie Sanders is in line to grab the gavel for the U.S. Senate Committee on Health, Education, Labor and Pensions. Expect him to focus on healthcare, union organizing, and workplace safety (particularly in the warehouse, transportation, and logistics industries).
• Republican Investigations. In the House, Republicans are likely to use their oversight authority to shine light on the regulatory agendas of agencies such as the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB). These two agencies in particular will be the subjects of multiple information requests, congressional inquiries, and hearings.
• Legislative Gridlock. A divided Congress—with a slim and embattled Republican majority in the House—likely means that our representatives will struggle to pass even the most innocuous legislation, much less major legislative vehicles such as immigration reform or the Protecting the Right to Organize (PRO) Act. This also signals the end (for the next two years) of large reconciliation-driven packages such as the American Rescue Plan Act and the Inflation Reduction Act.

2023 Omnibus Catch-up. Before diving into predictions for 2023, a quick review of the last two weeks is warranted. Our legislators are motivated by deadlines, and the end of the calendar year, the end of the 117th Congress, and a potential government shutdown all combined to push Congress to pass a $1.7 trillion omnibus spending package that included multiple provisions that will impact the workplace. Below is a brief description of the labor and employment policy provisions enacted in H.R. 2617, the “Consolidated Appropriations Act, 2023,” which will fund the federal government through September 2023.

• Pregnant Workers Fairness Act. For a while, prospects of passage of the Pregnant Workers Fairness Act (PWFA) looked bleak, but the bill eventually passed as an amendment to the omnibus. The Buzz has been tracking the PWFA for some time. The new legislation, which will be enforced by the U.S. Equal Employment Opportunity Commission (EEOC), requires employers to provide reasonable accommodation—such as more frequent bathroom breaks or an easing of lifting requirements—to pregnant workers.
• PUMP Act. The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act passed the House of Representatives in October 2021 by a vote of 276–149, with fifty-nine Republicans voting for passage. The bill then sat on Senator Charles Schumer’s desk until the end of December 2022 when the political winds blew favorably and the bill was included—like the PWFA—as an amendment to the omnibus. The new law extends current protections for nursing workers to salaried employees and includes an enforcement mechanism.
• Retirement. Also included in the omnibus package were a handful of retirement-related bills referred to as SECURE 2.0, which aim to encourage individuals’ retirement savings by, among other things, increasing the minimum distribution age and requiring automatic enrollment in retirement plans.
• Immigration Provisions. Although the Equal Access to Green Cards for Legal Employment (EAGLE) Act of 2022 did not make it across the finish line, the omnibus included several immigration-related provisions. The legislation extended the E-Verify program, the special program for nonministerial religious workers, and the Conrad 30 waiver program for doctors practicing in underserved areas. The legislation also authorized the U.S. Department of Homeland Security and the DOL to provide additional H-2B visas beyond the statutory limitation.
• Agency Funding. Of course, the funding bill also accomplished what it was primarily intended to do: fund federal agencies. Here is how the relevant workplace agencies fared:
• • For the first time since 2014, the NLRB received increased funding. The Board will add an additional $25 million to its bottom line, bringing its budget to just a bit over $299 million. Importantly, the prohibition on electronic voting remains.
  • The EEOC received a $35 million increase to $455 million. The explanatory statement accompanying the bill directed the EEOC to report to Congress within thirty days of the bill’s enactment “on the actions the Commission intends to take in response to the data and recommendations” contained in the National Academies of Sciences, Engineering, and Medicine report on the EEOC’s flawed pay data collection. The statement also encouraged the EEOC to resuscitate the National Equal Pay Enforcement Task Force.
  • The DOL’s Wage and Hour Division received a $9 million increase to $260 million.
  • The Occupational Safety and Health Administration (OSHA) received a $20 million increase to a little over $632 million.

FTC Proposes Ban on Noncompete Agreements. Christine Bestor Townsend, Tobias E. Schlueter, and Collin K. Brodrick have everything you need to know about the Federal Trade Commission’s (FTC) notice of proposed rulemaking to ban the use of noncompete agreements. While the timing of the proposal was a surprise (it never appeared on any of the three previous regulatory agendas released since the Biden administration came into office), the regulated community knew that something was coming. On the campaign trail, then-candidate Joe Biden promised to “eliminate all noncompete agreements.” President Biden took steps to follow through with this promise by installing Lina Khan as chair of the FTC and issuing the highly controversial antitrust executive order. As the Buzz has documented, there is also the memorandum of understanding between the NLRB and the FTC that specifically targets noncompetes, as well as the U.S. Department of the Treasury’s report on alleged uncompetitive practices. A lot of political capital is behind FTC’s effort this week. The U.S. Chamber of Commerce has already blasted the proposal as “blatantly unlawful.”

Fall 2022 Regulatory Agenda Finally Unveiled. The administration released its Fall 2022 regulatory agenda … on January 4, 2023. Here is what the regulatory roadmap looks like for the DOL:

• Wage and Hour Division
  • Overtime. A proposal to amend the Fair Labor Standards Act’s (FLSA) overtime regulations is scheduled for May 2023.
  • Independent Contractor. Comments on the proposal to amend the FLSA independent contractor regulations closed on December 13, 2022. A final rule is expected to be issued in May 2023.
  • Davis-Bacon Act. A final rule amending the Davis-Bacon Act’s implementing regulations is slated for February 2023.

• OSHA
  • “Walkaround Representative.” This proposal, which is scheduled to issue in May of 2023, would codify OSHA’s controversial 2013 “walkaround” letter.
  • COVID-19 in Healthcare Settings. The Office of Information and Regulatory Affairs completed its review of the final rule. A final rule was scheduled to be issued in December 2022, so it can happen at any point now. (John D. Surma and Savannah M. Selvaggio have the details.)
  • Injury and Illness Recordkeeping. A final rule is expected in March 2023.
  • Heat Stress and Illness. The Small Business Regulatory Enforcement Fairness Act (SBREFA) process is scheduled to begin in January 2023.
  • Workplace Violence in Health Care and Social Assistance. A SBREFA panel was scheduled to begin in late December 2022 or early this year.

• OFCCP
  • Modernization. In April 2023, the Office of Federal Contract Compliance Programs (OFCCP) intends to issue a proposal to “modernize” its obligations for federal contractors and subcontractors.
  • Pre-enforcement Notice and Conciliation Procedures. In March 2023, OFCCP is expected to finalize a rule amending its procedures for conducting investigations of federal contractors and subcontractors.
  • Subcontractor Disclosure. In March 2023, OFCCP is expected to issue a proposal “requiring contractors to provide notice to OFCCP when they award supply and service subcontracts.” The purpose of the proposal is to make it easier for “the agency to schedule supply and service subcontractors for compliance evaluations.”
  • Religious Exemption Rule. More than one year in the making, a final rule rescinding OFCCP’s 2020 rule regarding the religious exemption contained in Executive Order 11246 was scheduled to be issued in December 2022.

Employment-Based Immigration Fees to Skyrocket. On January 4, 2023, U.S. Citizenship and Immigration Services (USCIS) proposed changes to its fee schedule. Based on the proposal, it appears that USCIS is trying to make up for funding shortages that have plagued the agency over recent years. Some of the proposed employment based increases include the following:

• H-1B petitions would increase from $460 to $780 (a 70 percent increase).
• H-1B Pre-Registration program fee would increase from $10 to $215 (a 2,050 percent increase).
• L-1 petitions would rise from $460 to $1,385 (a 201 percent increase).
• O-1 petitions would increase from $460 to $1,055 (a 129 percent increase).

According to the proposal, the increases are necessary “due to expanded humanitarian programs, higher demand, increased processing times, and a need for more USCIS employees.” Of course, increasing the fees is unlikely to resolve ongoing processing delays at USCIS. Comments are due by March 6, 2023.

133rd Time’s the Charm. If Representative Kevin McCarthy (R-CA) and his fellow Republicans are feeling down about their current predicament, they are nowhere close to breaking the record for longest Speaker vote. In 1856, the Democrats controlled the Senate, but no party controlled the House as the Democrats, Know Nothings, and newly formed Republicans all vied for power. With a civil war brewing, the vote for Speaker became a proxy for the broader nationwide debate around slavery. After two months and 133 rounds of voting, Nathaniel Banks of Massachusetts, backed by an antislavery coalition, prevailed. The current vote for Speaker is only the third time since the 1856 vote that multiple ballots have been necessary to elect the Speaker.