September 27, 2021

Volume XI, Number 270

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September 24, 2021

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Beltway Buzz, April 2, 2021

Administration Debuts Infrastructure Package

Just weeks after enacting the $1.9 trillion American Rescue Plan Act, the Biden administration this week unveiled the American Jobs Plan—its $2.3 trillion infrastructure package. The broad outline released by the White House (there is, of course, no actual bill yet) proposes investing in U.S. roads and bridges, the electrical grid, high-speed broadband, and the like. It also goes further, pledging to delve into the “care economy,” supply chains, climate science, “small business incubators and innovation hubs,” “domestic workers,” and, of course, labor and employment. Though this is all theoretical at this point, here is what the administration says it hopes is included in the legislation:

  • PRO Act. The proposal is peppered with language supporting “union jobs” and collective bargaining on the grounds that “increased unionization can also impact … economic growth overall by improving worker productivity.” The proposal explicitly endorses the Protecting the Right to Organize (PRO) Act, though without legislative text, we don’t know what this endorsement means, exactly. But it is possible that the PRO Act might be crammed into the eventual American Jobs Plan bill.

  • Increased enforcement. The summary of the proposal states, “The President’s plan includes funding to strengthen the capacity of our labor enforcement agencies to protect against discrimination, protect wages and benefits, enforce health and safety safeguards, strengthen health care and pensions plans, and promote union organizing and collective bargaining.”

  • Increased penalties for employers. The summary states, “In addition to a $10 billion investment in enforcement as part of the plan’s workforce proposals, the President is calling for increased penalties when employers violate workplace safety and health rules.”

  • Paycheck Fairness Act? The summary fact sheet states that the infrastructure plan “tackles pay inequities based on gender.” Again, there are no details, but the Paycheck Fairness Act is a top priority for Democrats.

  • Contractor blacklisting and union neutrality. The proposal also seems to include some version of the rescinded contractor blacklisting scheme, as well as union neutrality requirements, as it states, “The President’s plan demands that employers benefitting from these investments follow strong labor standards and remain neutral when their employees seek to organize a union and bargain collectively.”

  • Federally funded projects. The proposal appears to double down on Davis-Bacon Act prevailing wages and project labor agreements.

So far, Republicans are not too keen on the spending plan, the tax increases that will be necessary to pay for it (one proposal would raise the corporate tax rate to 28 percent from 21 percent), or the plan’s potential inclusion of the PRO Act. Whether Democrats work to reach a compromise with Republicans or attempt to move this package unilaterally through the budgetary reconciliation process, there is a long way to go before anything crosses the finish line, if at all.

Trump-Era Nonimmigrant Ban Expires

 The Trump administration’s Proclamation 10052, which banned individuals from entering the United States on certain nonimmigrant visas (such as H-1B and L-1), expired on March 31, 2021. This is obviously a good development for those individuals directly impacted by the ban, as well as employers that supplement their workforces with highly skilled foreign workers. However, the fact that President Joe Biden let the proclamation lapse on its own, rather than repeal it outright as he did with the ban on immigrant visas, is perhaps indicative of the administration’s skepticism of nonimmigrant, high-skilled visa programs.

DOL Seeks Immigration-Related Prevailing Wage Data

Speaking of immigration policy, on April 2, 2021, the U.S. Department of Labor’s (DOL) Employment and Training Administration published in the Federal Register request for information inviting “interested parties to provide information on the sources of data and methodologies for determining prevailing wage levels covering employment opportunities that United States (U.S.) employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H–1B, H–1B1, E–3 nonimmigrant visas.” The information received is intended to inform the DOL’s review of the Trump-era prevailing wage rule that the DOL is proposing to delay until November 14, 2022.

EEOC Announces EEO-1 Collection Dates

The U.S. Equal Employment Opportunity Commission (EEOC) announced that the collection period for 2019 and 2020 EEO-1 Component 1 data would run from April 26, 2021, through July 19, 2021. The submission of both 2019 and 2020 data is necessary because the collection of 2019 data was postponed last year due to the COVID-19 pandemic.

Biden Announces Nominee for DOL’s Top Attorney

President Biden announced his intent to nominate Seema Nanda as solicitor of labor. Most recently, Nanda was chief executive officer of the Democratic National Committee. She previously served as chief of staff, deputy chief of staff, and deputy solicitor at the DOL in the Obama administration. While perhaps not as public-facing as other positions within the DOL, the solicitor plays a massive role in enforcing federal employment statutes, developing policy initiatives and regulations, and “providing legal opinions and advice concerning all the Department’s activities.”

NLRB Extends Deadline for Briefs on Employer Investigations

The National Labor Relations Board (NLRB) is extending the deadline for stakeholders to submit amicus briefs in a case concerning the proper standard to apply to situations where employers interview employees as part of their efforts to defend themselves in unfair labor practice proceedings. Briefs were originally due on or before April 5, 2021, but they will now be due on or before April 19, 2021.

Play Ball!

The 2021 big league baseball season started on April 1, 2021. Of course, there is a long and durable connection between our national pastime and our political institutions. For example, in 1910, President William Taft threw out the ceremonial first pitch on opening day and established a tradition that was followed by every subsequent president, with the exception of President Donald Trump. (President Jimmy Carter did not throw out an opening day pitch while president, but he did throw out the first pitch of Game 7 of the 1979 World Series, and he threw an opening day pitch in 2004, after his presidency.) President Biden—who threw an opening day first pitch in 2009 as vice president—did not restart the tradition this week, though the White House has promised that baseball fans will hear from him soon.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 92
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About this Author

James J Plunkett Government Relations Counsel in the Washington, D.C. office of Ogletree Deakins
Senior Government Relations Counsel

James J. Plunkett works as a Senior Government Relations Counsel in the Governmental Affairs practice of Ogletree Deakins.   

Jim was previously the Director for Labor Law Policy at the U.S. Chamber of Commerce where he focused on legislation, regulations, and policy decisions that impact the workplace.  This included activity concerning the National Labor Relations Board, the Department of Labor, the Equal Employment Opportunity Commission, as well as international labor issues.

Prior to joining the Chamber, Jim was an associate at a national law firm...

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