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If Current Polling Holds, Expect Additional Executive
Action In 2023 And 2024. This newsletter has often had
occasion to discuss the Office of Information and
Regulatory Affairs (OIRA) in the context of addressing rules issued
by federal agencies. This little known, but very important, federal
agency has been acting without an administrator for months. In the
likely event the GOP takes control of the House of Representatives
in November, executive action will play a prominent role in the
second half of this administration’s term, and OIRA will be
central to that effort.
OIRA serves as a gatekeeper for rulemaking government-wide,
coordinating, vetting and approving hundreds of federal regulations
from myriad federal agencies each year, with the final say over
which agency priorities get fast-tracked and which get
extinguished. OIRA will play a direct role in implementing major
elements of the
Inflation Reduction Act. The administration has announced that
it is close to nominating an administrator of the agency, but has
not provided any details. Politics will come into play here, as the
administration must select a nominee palatable to moderate
democrats while also satisfying calls from more progressive lawmakers to
nominate someone further to the left than during the Obama
administration.
Looming in the shadows of a potential presidential agenda based
on executive action and agency rulemaking is a
conservative-majority supreme court that, with its recent decision
in EPA v. West Virginia, has already begun chipping away at the so-called administrative state. Indeed, SCOTUS recently
granted certiorari in Axon Enter., Inc. v. FTC, a case
challenging the constitutionality of the FTC’s administrative
review system. Additionally, more than a dozen restaurants in and
around Austin, Texas have filed a lawsuit against the Department of Labor,
challenging its authority to set salary requirements that must be
met for managerial employees to be considered exempt from hourly
pay, including overtime, under the FLSA’s executive,
administrative, or professional exemption, found at 29 C.F.R.
§ 541.600. This case could eventually reach SCOTUS, providing
an additional opportunity to diminish agency rule-making authority,
this time in a space very relevant to the employer community.
If SCOTUS continues to chip away at the authority of federal
agencies, it will be exceedingly difficult for the administration
to continue to press its agenda through agency action, making the
administrator position at OIRA even more relevant.
Speaking Of Administrative Action…
- The Department of Defense, General Services Administration, and
National Aeronautics and Space Administration, have issued a proposed rule that would amend the Federal
Acquisition Regulation to implement President Biden’s February
4, 2022, Executive Order (E.O.) 14063 on the use
project labor agreements (PLAs) in federal construction projects
costing $35 million or more. We reported on EO 14063 this spring. Comments on
the proposed rule must be submitted to the Regulatory Secretariat
Division by October 18, 2022; information about submitting comments
is detailed in the proposed rule notice. - In March, the OFCCP issued Directive 2022-01: Pay Equity Audits, intended
to increase contractor compliance with 41 CFR §60-2.17(b),
which requires a federal contractor to perform in-depth analyses of
its total employment processes to determine whether and where
impediments to equal employment opportunity exist, such as
compensation system(s) to determine whether there are gender-,
race-, or ethnicity-based disparities. The March directive caused
an inordinate amount of confusion. As such, as Seyfarth noted here, due the confusion, the OFCCP issued an
additional directive clarifying explicitly that 2022-01 does not
require contractors to produce privileged pay analyses as proof of
their compliance with 41 CFR §60-2.17(b)(3). OFCCP Director
Jenny R. Yang also noted in a blog post that, although the original
directive used the phrase “pay equity audit,” the revised
directive instead uses the term “compensation analysis”
to avoid any confusion about the nature of a contractor’s
obligations. - The Department of Homeland Security, after receiving more than
16,000 comments in response to a draft rule
released in September, has issued a final rule intended to fortify the so-called
DACA program. The DHS’s final regulation maintains existing
criteria for DACA status and the process for seeking work
authorization. The rule will apply only to DACA renewal requests,
not to new applications, while a federal court order remains in
place barring DHS from granting new requests for status. An appeal
of that order was heard in July before the 5thCircuit,
which is expected to uphold the District Court, and thereby set the
stage for a showdown before the Supreme Court. The new rule largely
codifies a 2012 memo issued by then President Obama that
established the DACA program.
More Cannabis Legislation. We here at the PMN
have been discussing, and podcasting on, the expansion of legal uses for cannabis across
the country for quite some time now. Recently, as
Seyfarth noted here, Washington, D.C. Mayor Muriel Bowser
signed the “Cannabis Employment Protections Amendment Act of
2022” (D.C. Act 24-483), joining the growing list of
jurisdictions prohibiting most employers from taking adverse action
(e.g., rejecting job applicants or terminating employees) for
off-duty cannabis use.
More Of The Great Loosening, This Time From The
Top. We at PMN have been following the great loosening of COVID
restrictions across the nation since the middle of 2021. This time the change comes not
at a state or local level, but rather from the federal agency with
the most say in pandemics, the CDC. As Seyfarth noted here, the CDC recently issued a press release streamlining its COVID-19
guidance, easing isolation recommendations for individuals who are
not up to date with their vaccines, individuals who are exposed to
COVID-19, and individuals who have or suspect they may have
COVID-19. The CDC now solely recommends that individuals exposed to
COVID-19 wear a “high-quality” mask for 10 days and test
on day 5, regardless of vaccination status, as opposed to requiring
quarantine.
Independent Contractor Classification: An Uneven
Analytical Road. In this iteration of the policy matters newsletter, we
summarized the current state of federal agency rulemaking as it
relates to classification of independent contractors under the
FLSA. Recently, the Policy Matters team had the chance to host a podcast discussing that very topic with
Seyfarth’s own Camille Olson, veteran policy analyst and
frequent witness before congressional committees. Camille has been
on the ground floor advocating around this issue for more than a
decade. This episode is definitely worth the listen. While on the
topic of independent contractor classification, it is worth noting,
as Seyfarth summarized here, that an appeals court in Massachusetts
which uses a version of the so-called ABC test for classification
purposes, held that home inspectors were classified properly as
independent contractors under the state Unemployment Insurance
law.
Stop woke Act Stopped In Its Tracks. In the
previous iteration of this newsletter we summarized two
pieces of legislation recently signed by Florida Governor Ron
Desantis: the so-called “Stop Woke Act” and the “Parental Rights in Education Act,” or the
so-called “Don’t Say Gay” measure. We noted that both
measures were subject to constitutional challenges in Federal
Court. Well, last week, a federal judge in Florida issued an order
preliminarily enjoining enforcement of the
Stop Woke act on the grounds that the Legislation likely runs afoul of the
1stAmendment. Not only did Judge Walker conclude the
legislation likely violates the 1stAmendment prohibition
of state action that exercises viewpoint discrimination, it also
violates the 1stAmendment prohibition on legislation
that is unduly vague. While we do not pretend to possess the
foresight of Nostradamus, we anticipate a similar ruling concerning
the Parental Rights in Education Act.
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