September 27, 2021

Volume XI, Number 270

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September 24, 2021

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Beltway Buzz, June 4, 2021

Workforce Update. The U.S. Department of Labor’s (DOL) Bureau of Labor Statistics released its May 2021 jobs report on June 4, 2021. According to the report, American employers added 559,000 jobs in the previous month. The number is an improvement over April’s lackluster report, but still short of what economists and employers had hoped for. Of course, politicians and policymakers on both sides of the aisle will claim that the report demonstrates why their particular policy preferences should be implemented. Political bluster aside, there is still concern within the employer community that too many jobs are going unfilled. Accordingly, on June 1, 2021, the U.S. Chamber of Commerce launched its America Works program “to swiftly address America’s deepening worker shortage crisis.” The America Works agenda calls for increased investment in training and education, reduced barriers to employment (through expanded access to childcare, policies that increase “second chance” hiring, and occupational licensing reform), and immigration reform (including doubling the annual quota on the issuance of H-1B and H-2B visas).

Déjà Vu All Over Again. President Joe Biden will nominate David Weil to reprise his role as administrator of the DOL’s Wage and Hour Division. Weil served in that position from 2014 through 2017, during which time he spearheaded the DOL’s 2016 changes to its overtime regulations (which were struck down in federal court). Weil is also known for his “fissured workplace” theory, which posits that nearly all workers are employees, and which informed his issuance of “Administrator’s Interpretations” on the legal tests for joint-employer and independent contractor status.

President Biden Proposes His First Budget. Though a bit late, President Biden released his budget for the 2022 fiscal year (FY) on May 28, 2021—his first budget request as president. The budget, which is largely aspirational, as federal funding allocations rest squarely with Congress, provides insight into the administration’s policy preferences. For example:

  • Overall, the budget request seeks $14.2 billion for the DOL. The request represents an almost 7 percent increase over the FY 2021 enacted amount.

  • More specifically, the DOL budget request calls for $30.5 million for the Wage and Hour Division “to restore enforcement staff, thereby strengthening enforcement strategies serving communities most vulnerable to economic exploitation,” and to “expand enforcement efforts in industries where evidence suggests workers are at risk of misclassification as independent contractors.”

  • The Occupational Safety and Health Administration (OSHA) would receive $73 million more than was enacted in 2021. Nearly $20 million would be dedicated to “rebuild[ing] and strengthen[ing] OSHA’s enforcement program.”

  • The National Labor Relations Board would receive nearly $302 million, a more than 10 percent increase over the 2021 enacted amount.

  • The S. Equal Employment Opportunity Commission would receive $446 million, a more than 10 percent increase over the 2021 enacted amount.

The Buzz will have more on the federal budget and appropriations process as we head through the summer and approach the end of the current fiscal year on September 30, 2021.

OSHA ETS Still in Limbo. Another week has passed, and OSHA’s COVID-19 emergency temporary standard (ETS) is still under review by the Office of Information and Regulatory Affairs (OIRA). Two more stakeholder meetings have been calendared for next week, including a meeting scheduled for June 9, 2021. After that meeting, 45 days will have passed since the DOL sent the draft ETS to OIRA on April 26, 2021, and OIRA will have held 50 different stakeholder meetings.

Where EAGLEs Dare. On June 2, 2021, U.S. representatives Zoe Lofgren (D-CA) and John Curtis (R-UT) introduced the Equal Access to Green cards for Legal Employment (EAGLE) Act of 2021 (H.R. 3648). The bill would gradually phase out the 7 percent per-country cap for employment-based visas and raise from 7 percent to 15 percent the per-country cap on family-based visas. It also would make changes to the H-1B visa program, such as

  • requiring employers to provide to the DOL documentation of the prevailing wage methodology used for a potential H-1B employee;

  • requiring new employer attestations as part of the labor condition application (LCA);

  • eliminating the “B-1 in lieu of H” policy that allows B-1 business visitors to perform short-term H-1B work or services pursuant to an H-3 trainee visa in the United States for a limited time while remaining employed abroad; and

  • allowing for increased audits, investigations, and penalties associated with LCAs.

The bill is a revamped Fairness for High-Skilled Immigrants Act of 2020, different versions of which passed the U.S. Senate and U.S. House of Representatives during the 116th Congress, which adjourned before differences between the bills could be reconciled.

State Department Expands National Interest Exception Criteria. In other immigration-related news, late last week, the U.S. Department of State broadened its eligibility criteria for business travelers seeking national interest exceptions from restrictions contained in COVID-19–related travel bans. Pursuant to the new determination, travelers coming from Brazil, China, India, Iran, Ireland, the Schengen Area, South Africa, and the United Kingdom “who are seeking to provide vital support or executive direction for critical infrastructure” or “those traveling to provide vital support or executive direction for significant economic activity in the United States” may qualify for a national interest exception.

Supreme Court Firsts. June 1, 2021, marked the 105th anniversary of the Senate’s confirmation of the nomination of attorney Louis Brandeis to the Supreme Court of the United States. Brandeis’s appointment to the high court is noteworthy for several reasons. Brandeis’s Jewish heritage in a time of virulent anti-Semitism in the United States, combined with his relationship with President Woodrow Wilson (who nominated Brandeis) and his reputation as a “radical reformer,” made his nomination controversial. It was so controversial, in fact, that the Senate Committee on the Judiciary held its first-ever public hearing to consider a nomination to the Supreme Court. Previous Supreme Court nominations had simply gone straight to the Senate floor for a vote. The Judiciary Committee eventually approved Brandeis’s nomination, and he was confirmed by a 47–22 vote of the full Senate. Brandeis became the first Jewish justice to serve on the Supreme Court.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 155
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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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