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Beltway Buzz, March 17, 2023

Walsh Exits. 

March 10, 2023, marked Marty Walsh’s last day as U.S. secretary of labor. The duties of the secretary are now being handled by Acting Secretary of Labor Julie Su, who is waiting on the U.S. Senate to act on her nomination to be the secretary on a permanent basis. During his tenure, Walsh oversaw the U.S. Department of Labor’s (DOL) withdrawal of the 2020 Fair Labor Standards Act joint-employer rule, the promulgation of a new tip credit rule, a potential new independent contractor standard, ramped-up enforcement protocols at the Office of Federal Contract Compliance Programs (OFCCP), and the failed Occupational Safety and Health (OSHA) COVID-19 vaccine-or-test rule.

Michigan Readies Repeal of Right-to-Work Law. 

Elections have consequences: this week, the Michigan Senate approved legislation that would repeal the state’s right-to-work law, which was enacted in 2012. Assuming the legislature is able to iron out differences between the Senate’s bill and the bill already passed by the Michigan House of Representatives, Governor Gretchen Whitmer (D) is expected to sign the legislation into law. Right-to-work laws allow for voluntary unionism by prohibiting the conditioning of employment on joining or paying fees to a labor union. Christopher R. Mikula has the details.

Senators to USCIS: Fee Proposal Hurts Small Biz. 

This week, a bipartisan group of senators wrote to leaders of the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) about their concerns with regard to USCIS’s proposed increased fee schedule. The senators wrote:

We are alarmed, however, that the fee increases will be particularly burdensome for small businesses relying on H-2A and H-2B nonimmigrant visas to meet their workforce needs. As you know, we are at a time when many in our country are suffering from a severe labor shortage and persistent inflation. It is irresponsible to so drastically increase the price to access these essential guest worker programs while doing nothing to increase their availability. As you draft a final rule, we urge you to reconsider the dramatic proposed H-2A and H-2B visa fee hikes and make sure that we are doing everything possible to support small businesses.

Regulators often claim that all comments on regulatory proposals are taken seriously, but the Buzz has a feeling that joint comments from Democratic and Republican senators will be taken juuuuust a bit more seriously. The comment period for the proposal closed on March 13, 2023.

OFCCP FOIA Deadline. 

Today, March 17, 2023, is the last day for federal contractors and subcontractors to notify OFCCP that they do not belong on the Second Updated List (published on March 10, 2023) of entities that have failed to object to the agency’s release of their EEO-1 data pursuant to a media Freedom of Information Act (FOIA) request. After the expiration of today’s deadline, OFCCP will publish the EEO-1 Type 2 data of nonobjecting contractors and subcontractors on its webpage. Importantly, the agency is quick to note that it “has not yet made any determinations regarding the substance or merit of these entities’ responses or objections” but has merely excluded objectors from this initial disclosure.

OFCCP’s Mega Construction Program. 

Speaking of OFCCP, the agency announced this week the launch of its Mega Construction Project Program. The program was created in anticipation of projects arising from the Bipartisan Infrastructure Law and will cover projects valued at $35 million or more that are expected to last at least one year. According to an OFCCP reference sheet, once a project is deemed a “Megaproject,” OFCCP will insert itself at “earliest stages” to “engage[] a wide range of stakeholders in the community to remove hiring barriers and promote consideration of a diverse pool of qualified workers for jobs in the trades.” As the Buzz has previously noted, OFCCP Director Jenny Yang has made the construction industry one of her areas of focus, whether it is through the contract award portal or agency enforcement efforts.

EEOC Sees Increased Numbers of Charges. 

This week, the U.S. Equal Employment Opportunity Commission (EEOC) released its Fiscal Year 2022 Annual Performance Report (APR). The report comes days after President Biden released his fiscal year (FY) 2023 budget request and arrives just in time for government appropriations season. The report highlights that in FY 2022:

  • The Commission received 73,485 new discrimination charges—an uptick of nearly 20 percent compared to the previous fiscal year.
  • The Commission filed 91 lawsuits, “including 53 suits on behalf of individuals, 25 non-systemic suits with multiple victims, and 13 systemic suits involving multiple victims or discriminatory policies.” This number is down from the 116 lawsuits the Commission filed in FY 2021.
  • The Commission filled 352 new positions and ended the year with 2,187 employees (the Commission had 2,110 employees at the end of FY 2021).
  • The Commission had 51,399 pending charges remaining at the end of the fiscal year.

Happy St. Patrick’s Day! 

Today, in what has become a White House St. Patrick’s Day tradition, President Biden will host Leo Varadkar, Taoiseach of Ireland. According to a White House statement, “The leaders will reaffirm the close and historic partnership between the United States and Ireland and the extraordinary bonds between our people.” As this statement implies, Washington, D.C., politics has long been intertwined with many Americans’ shared Irish heritage. Beginning in 1991 and repeated sporadically over the years, the U.S. Congress (or its individual chambers) has declared March to be Irish-American Heritage Month. Sláinte!

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XIII, Number 77

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...