Beltway Buzz – February 2021 | Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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Congress Sees Its Shadow. It was Groundhog Day this previous week, and it certain appears like we have now been residing the identical day time and again with the way in which that the events in Congress can’t agree on an financial stimulus bundle. Democrats are shifting ahead, nonetheless, and this week they started advancing their financial bundle utilizing “price range reconciliation,” a parliamentary course of that avoids a filibuster and requires solely 51 votes within the U.S. Senate to move a measure. (Price range reconciliation might nonetheless show a prolonged ordeal requiring modification of the laws.) Republicans are nonetheless hoping that they’ll have some enter within the course of, and 10 Republican senators met with President Joe Biden on the White Home this week to debate a compromise proposal that that they had drafted. It seems that there’s nonetheless a methods to go on this matter.

PRO Is a Go. On February 4, 2021, Democrats within the U.S. Senate and U.S. Home of Representatives reintroduced the Defending the Proper to Arrange (PRO) Act, sweeping labor laws whose enactment is the AFL-CIO’s high precedence in 2021. The invoice already has 195 cosponsors, together with 2 Republicans. Suffice it to say, we shall be reporting extra on the PRO Act because the 117th Congress unfolds.

Labor Secretary Nominee’s Listening to. On February 4, 2021, the U.S. Senate Committee on Well being, Schooling, Labor and Pensions (HELP) held a affirmation listening to on the nomination of Boston Mayor Marty Walsh to function secretary of labor. Subjects mentioned on the listening to included the federal minimal wage, state right-to-work statutes, unemployment insurance coverage, the rights of people with disabilities, office security, energy-sector jobs, and the David-Bacon Act amongst different federal contracting points. The HELP Committee’s rating member, Senator Richard Burr (R-NC), indicated that he can be inclined to help Walsh’s nomination and would encourage his fellow Republicans to do the identical.

Properly, That Didn’t Take Lengthy. Although he was simply put in final week as performing basic counsel of the Nationwide Labor Relations Board (NLRB), Peter Sung Ohr has already made vital coverage adjustments. On February 1, 2021, Ohr issued a memorandum rescinding 10 basic counsel memoranda that former NLRB basic counsel Peter Robb had issued between 2018 and 2020. Among the many rescinded memos have been directives and steerage addressing handbook guidelines, the authorized commonplace in circumstances alleging union breaches of the obligation of honest illustration, the rights of staff who select to chorus from union membership, and neutrality agreements and “whether or not they present ‘greater than ministerial help’ to the union’s efforts to arrange.”

Trump-Period DOL Rules Paused. This week, the U.S. Division of Labor’s (DOL) Wage and Hour Division (WHD) introduced that it could postpone for 60 days the efficient dates of the impartial contractor and tipped wages rules.

The impartial contractor regulation, printed within the Federal Register on January 7, 2021, reaffirms the “financial dependence commonplace” for figuring out whether or not a employee is an impartial contractor or an worker. The regulation was set to enter impact on March 8, 2021, however the WHD is now proposing a brand new efficient date of Might 7, 2021. Feedback on the proposed delay are due by February 24, 2021.

The tipped-wages regulation went by way of many twists and turns earlier than it was printed within the Federal Register on December 30, 2020. The regulation permits tip pooling for employers that don’t take the tip credit score and permits “back-of-the-house” staff (e.g., cooks, dishwashers, and others) to share in tip swimming pools. The regulation additionally permits employers to take the tip credit score for time that staff, comparable to servers, spend performing facet work that doesn’t generate suggestions (e.g., cleansing and setting tables) however that’s associated to their tip-generating work. The regulation was scheduled to change into efficient on March 1, 2021, however the WHD has now proposed to delay the efficient date till April 30, 2021. Feedback on the proposal are due by February 17, 2021. Charles E. McDonald, III has the main points.

PAID Program Pitched. Talking of the WHD, final week the Buzz mentioned the WHD’s rescission of a number of wage and hour opinion letters and speculated as as to if your entire opinion letter program can be discontinued. The opinion letter program stays in place—for now—however at the least one WHD compliance help program has already been thrown overboard. Late final week, the DOL terminated the Payroll Audit Unbiased Willpower (PAID) program, which was began by the Trump administration in 2018 and inspired employers to voluntarily right sure underpayments to staff.

OSHA Points New COVID-19 Steerage. On January 29, 2021, pursuant to President Biden’s “Govt Order on Defending Employee Well being and Security,” the Occupational Security and Well being Administration issued new steerage referring to COVID-19 and office security. J. Davis Jenkins explains what this implies for employers.

President Biden Points Immigration Order. On February 2, 2021, President Biden issued the “Govt Order on Restoring Religion in Our Authorized Immigration Techniques and Strengthening Integration and Inclusion Efforts for New People.” The order is a primary step towards dismantling Trump-era immigration insurance policies, because it instructs the secretary of state, the lawyer basic, and the secretary of homeland safety to “overview current rules, orders, steerage paperwork, insurance policies, and some other comparable company actions … which may be inconsistent with the coverage set forth in part 1 of [the] order.” Part 1 of the order states that the federal authorities’s immigration coverage ought to, amongst different issues, “promote integration, inclusion, and citizenship, and … embrace the total participation of the most recent People in our democracy.” The chief order particularly instructs these company heads to overview USCIS’s charge enhance adjustments introduced in the summertime of 2020, in addition to the general public cost rule.

H-1B Wage Allocation Rule Postponed. On February 4, 2021, USCIS introduced that it could postpone the efficient date of its H-1B wage allocation choice rule. Printed within the Federal Register on January 8, 2021, the rule was initially scheduled to enter impact on March 9, 2021. USCIS is now proposing to increase the rule’s efficient date to December 31, 2021. The announcement said, “For the upcoming H-1B cap season, USCIS will apply the present rules (random choice) to any registration interval that takes place earlier than Dec. 31, 2021.” The company will obtain feedback on the proposed delay for 30 days after the discover is printed within the Federal Register.

Secretary of Homeland Safety Confirmed. On February 2, 2021, the U.S. Senate confirmed Alejandro Mayorkas as secretary of homeland safety, and he was sworn in later that day. Mayorkas beforehand held the place of deputy secretary of homeland safety from 2013 to 2016. He was additionally director of USCIS from 2009 to 2013.

Senate Voting Milestones. Because the U.S. Senate kicked off its preliminary consideration of President Biden’s financial stimulus plan this week, Senator Patty Murray (D-WA) and Senator Dianne Feinstein (D-CA) every forged her 9,000th roll name vote within the U.S. Senate. This was fairly an accomplishment for the senators, who have been first elected to the U.S. Senate in 1992. Senators Murray and Feinstein have an extended approach to go, nonetheless, if they’re to interrupt the document for many roll name votes within the U.S. Senate, which is held by former senator Robert Byrd (D-WV). Throughout his time representing West Virginia within the U.S. Senate from 1959 to 2010, Senator Byrd forged 18,689 roll name votes.

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