Washington D.C. End of Year Labor and Employment Review

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.

Congress: Home for the Holidays. The U.S. Congress is wrapping up for the year, and—we know you are going to find this hard to believe—Congress didn’t make much legislative progress during the three-week post-Thanksgiving work period (though the members did manage to pass the fiscal year (FY) 2024 National Defense Authorization Act, a bill that has passed for sixty-three straight years). Our lawmakers continue to spin their wheels on federal government funding, an issue the Buzz has been monitoring for months. Congress will reconvene in the second week of January 2024. Lawmakers will then have just eleven days—including the Martin Luther King, Jr., holiday—before the first funding deadline of January 19, 2024. It appears that government shutdown drama will continue in 2024.

Senate Finally Departs. Though officially scheduled to be home with their families and constituents, members of the U.S. Senate remained in Washington, D.C., this week to work on national security issues. When nothing materialized, Majority Leader Charles Schumer (D-NY) announced that the next roll call vote in the Senate would be scheduled for January 8, 2024. This effectively puts a bow on congressional activity for the remainder of 2023.

New Union Election Process Becomes Effective Next Week. Employers are reminded that the National Labor Relations Board’s (NLRB) latest changes to its union election regulations become effective on December 26, 2023. The NLRB general counsel released a memorandum on December 8, 2023, that “provides guidance to Agency personnel, parties, practitioners, and other stakeholders about representation case processing once the 2023 Election Rule goes into effect.”

PWFA Final Reg on the Way? Pursuant to the Pregnant Workers Fairness Act (PWFA)—passed nearly one year ago—the U.S. Equal Employment Opportunity Commission (EEOC) must publish final implementing regulations by December 29, 2023. As proposed, the regulations define key terms—such as what it means to be a “qualified” employee—and provide examples of reasonable accommodations that employers might provide to workers covered by the statute.

DOL Seeks Input on Potential Schedule A Changes. The U.S. Department of Labor’s (DOL) Employment and Training Administration issued a request for information (RFI), on December 22, 2023, seeking feedback on potential modernizations to Schedule A of the permanent labor certification process. Schedule A, which hasn’t been updated since 2004, lists occupations for which the “DOL has predetermined there are not sufficient U.S. workers who are able, willing, qualified, and available pursuant to regulation.” Employers interested in hiring to fill a position listed as a Schedule A occupation are not required to conduct a labor market test and can file an application for permanent employment certification directly with U.S. Citizenship and Immigration Services (USCIS). Issued pursuant to President Biden’s executive order on “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” the RFI specifically seeks feedback on whether any science, technology, engineering, and mathematics (STEM) occupations should be added to Schedule A and which jobs should be considered part of a STEM occupation. Comments are due by February 20, 2024.

H-1B Domestic Renewal Pilot Program Moves Forward. The Office of Information and Regulatory Affairs has completed its review of the U.S. Department of State’s pilot program that will reportedly allow 20,000 H-1B visa holders to renew their visas while remaining in the United States. In a notice of pilot program published in the Federal Register on December 21, 2022, the State Department said that “[t]he program will accept applications from January 29 to April 1, 2024.” Whitney Brownlow, Marissa E. Cwik, and Ashley Urquijo have the details.

Administration Finalizes PLA Requirements for Federal Projects. The Department of Defense, General Services Administration, and the National Aeronautics and Space Administration have finalized a rule that will mandate the use of project labor agreements for contractors and subcontractors engaged in construction of federal projects “for which the total estimated cost of the construction contract to the Federal Government is $35 million or more.” The regulations implement President Biden’s February 4, 2022, executive order “Use of Project Labor Agreements for Federal Construction Projects.” According to a White House fact sheet, “It is estimated that the rule will result in the Federal Government requiring PLAs on a majority of large Federal contracts.” The rule becomes effective thirty days after the date of publication in the Federal Register.

DOL Proposes Changes to National Apprenticeship System. The Employment and Training Administration has released a notice of proposed rulemaking (NPRM) to amend the regulations governing registered apprenticeship programs. As Senator Bill Cassidy (R-LA), ranking member of the Senate Committee on Health, Education, Labor and Pensions (HELP), notes, the 779-page NPRM implements the National Apprenticeship Act of 1937, which is a little over one page in length. Among other provisions, the proposal would:

  • “create more safeguards for apprentices to ensure that they have healthy and safe working and learning environments as well as just and equitable opportunities throughout their participation in a registered apprenticeship program”;
  • allow government “Registration Agencies”—according to Senator Cassidy—to take over the role of the National Labor Relations Board by empowering them to dissolve apprenticeship programs when any program sponsor or participating employer is merely alleged to have interfered with workers’ Section 7 rights; and
  • aim to make “quality improvements throughout the system to improve the protection, safety, and welfare of apprentices, such as proposed prohibitions on non-compete and non-disclosure provisions in apprenticeship agreements between sponsors and apprentices and enhanced protections against unreasonable participation costs for apprentices.”

Comments are due sixty days after publication in the Federal Register.

Senate Targets Bureaucratic Waste. Who says Congress doesn’t accomplish anything constructive? Well, on December 20, 2023, the U.S. Senate took a step—albeit a small one—to reduce federal government waste by passing the Eliminate Useless Reports Act of 2023 (S. 2073). The bipartisan bill instructs heads of federal agencies to identify recurring plans or reports that it submits to Congress that are “outdated or duplicative,” along with “a recommendation on whether to sunset, modify, consolidate, or reduce the frequency of the submission of the recurring plan or report.” This all sounds good to the Buzz—assuming the U.S. House of Representatives passes the bill—just so long as Congress doesn’t subsequently establish a standing committee to evaluate and report on the impacts of the legislation.

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