United States: Labor Secretary Hearing (Beltway Buzz, September 20, 2019)

Last Updated: September 25 2019
Article by James J. Plunkett

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.


Labor Secretary Hearing. Eugene Scalia's nomination to be secretary of labor took a step forward this week, as the U.S. Senate Committee on Health, Education, Labor and Pensions held his confirmation hearing on September 19, 2019. Among the topics discussed were joint employment, workplace safety (including violence in the workplace), apprenticeship and pathways to work, multi-employer pension funds, wage and hour enforcement, sub-minimum wages under Section 14(c) of the Fair Labor Standards Act, and association health plans. The committee, which consists of 12 Republicans and 11 Democrats, will vote on Scalia's nomination on September 24, 2019, and he is expected to be approved.

Overtime Reg Moves Forward. The much-anticipated update to the U.S. Department of Labor's part 541 overtime provisions is one step closer to finalization. Late last week, the Office of Information and Regulatory Affairs concluded its review of the rule, which means that it may become final at any time now. So how soon might these changes go into effect upon finalization? For sake of comparison, the 2004 changes had a four-month period between final publication and the effective date, while the 2016 changes would have taken effect approximately six months after the final rule issued.

EEOC/OFCCP Hearing. On September 19, 2019, the U.S. House of Representatives Education and Labor Subcommittee on Civil Rights and Human Services held a hearing titled "Examining the Policies and Priorities of the EEOC and the OFCCP." Janet Dhillon, chair of the Equal Employment Opportunity Commission (EEOC), and Craig Leen, director of the Office of Federal Contract Compliance Programs (OFCCP), were featured witnesses. Members of the committee and the witnesses discussed EEO-1 reporting and pay data collection and the OFCCP religious exemption regulation (see below), among other topics.

Immigration Bill Fails in the Senate. The Buzz has been tracking the Fairness for High-Skilled Immigrants Act of 2019, which easily passed the House in July 2019. The bill would eliminate the per-country caps for employment-based immigrants. Because the bill enjoys bipartisan support, on September 19, 2019, proponents of the bill in the Senate sought to pass the measure via unanimous consent (UC) but failed. Senator David Perdue Jr. (R-GA) objected, reportedly due to substantive concerns, which means that if the bill could be tweaked to his liking, proponents might try the UC process again.

H-4 EAD. Several months ago, the Buzz discussed U.S. Citizenship and Immigration Services' entry in the spring regulatory agenda, noting that by June of this year, it would issue a proposal to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization. Obviously, that deadline has come and gone without a proposal being issued. But in a September 16, 2019, court filing in a case challenging the 2015 H-4 rule, the public got a bit of clue as to when the proposal might drop. The filing states, "At this point, DHS has informed counsel that it believes the earliest possible publication date for that rule would be in spring 2020." Even if USCIS meets this date—and the filing notes that it is "aspirational"—a final rule rescinding work authorization for H-4 spouses likely won't appear until late 2020 or early 2021.

OFCCP Religious Exemption Proposal Moves Forward. September 16, 2019, was the deadline for the public to submit comments on OFCCP's proposed religious exemption rule for federal contractors. Over 109,000 comments were submitted. After the comments are reviewed and any changes are made, the next step will be the issuance of a final rule.

Architect of the ADA. With Hispanic Heritage Month running from September 15 through October 15, 2019, there is no better time for the Buzz to profile former congressman Tony Coelho, a Democratic representative from California's 15th district (currently represented by Democrat Eric Swalwell) who served six terms in Congress from 1979 to 1989. In 1986, Coelho was elected as the House majority whip, or chief vote counter. As such, he became the first Hispanic person to hold a position of leadership in the House. The Buzz also remembers Coelho—who suffers from epilepsy—as the chief architect of the Americans with Disabilities Act (ADA), which was signed into law after he retired from Congress. These days, Coelho continues his advocacy on behalf of individuals with disabilities as chairman of the board of directors of disability-related charitable organizations.

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