Finally: Congress Passes 2022 Government Funding Legislation. This week, Congress passed a $1.5 trillion omnibus funding bill (H.R. 2471), setting the table to fully fund the federal government for the remainder of fiscal year (FY) 2022. The appropriations package marks the first time that President Joe Biden and the Democratic-controlled legislative branch will put their imprimatur on federal government funding. Throughout all of 2021 and the first few months of 2022, the federal government has been operating on funding limits established at the end of 2020 and signed into law by former president Donald Trump.
The bill would provide the U.S. Department of Labor with $13.2 billion in funding (a $653 million boost over the FY 2021 enacted level) with the Wage and Hour Division receiving $251 million ($5 million above the FY 2021 enacted level) and the Occupational Safety and Health Administration (OSHA) getting $612 million ($20 million above the FY 2021 enacted level). The U.S. Equal Employment Opportunity Commission received $420 million ($15.5 million above the FY 2021 enacted level). Though modest, these increases would allow the administration to hire more attorneys, investigators, and other professionals to advance both its enforcement and regulatory agendas. Funding for the National Labor Relations Board (NLRB) would remain flat at a little more than $274 million, relatively unchanged since 2014. The bill also maintains longstanding language that would prohibit the NLRB from using any appropriated funds in order “to issue any new administrative directive or regulation that would provide employees any means of voting through any electronic means in an election to determine a representative for the purposes of collective bargaining.”
Zombie Blacklisting Revived. There is a saying in Washington, D.C., that no bad policy idea truly ever goes away. This trope helps explain why employers that contract with the U.S. Department of Agriculture (USDA) may soon find themselves subject to a labor and employment law compliance reporting scheme. USDA is proposing to require federal contractors, upon accepting a government contract with the agency, to certify that they—as well as subcontractors at any tier—are in compliance with fifteen federal labor laws and executive orders, as well as equivalent state laws. Contractors would also be required to provide to USDA a list—updated every six months—of any violations of these labor laws as well as “any steps taken to correct the violations of, or improve compliance with, such legal requirements.” This requirement would flow down to lower tier subcontractors. What would this information be used for? During the bid process, USDA “will consider any information provided and determine whether a contractor is a responsible source that has a satisfactory record of integrity and business ethics.” The proposal brings to mind previous efforts over the last thirty years to incorporate into the federal procurement process additional penalties for violations—or mere allegations of violations—of labor and employment laws, especially former President Barack Obama’s failed Fair Pay and Safe Workplaces blacklisting scheme.
Treasury Report: Uncompetitive Employer Actions Harm Workers. On March 7, 2022, the U.S. Department of the Treasury released a report entitled “The State of Labor Market Competition” which “catalogues the ways in which insufficient labor market competition hurts workers.” The report touches on many subject matters familiar to readers of the Buzz—joint employment, independent contractors, alternative dispute resolution, and noncompete agreements, to name a few—and suggests that these arrangements unfairly limit labor market competition, lower wages, and harm workers. Not surprisingly, the report reinforces the administration’s already-known policy preferences on these subject matters and suggests that these preferences should be implemented to help workers.
OSHA Unveils COVID-19 Healthcare Enforcement Initiative. In its ongoing efforts to mitigate the spread of COVID-19 and its variants in the workplace, this week OSHA launched the implementation of “a highly focused, short-term inspection initiative directed at hospitals and skilled nursing care facilities that treat or handle COVID-19 patients.” The initiative, which will run from March 9, 2022, to June 9, 2022, will focus on “follow-up and monitoring inspections of hospitals and skilled nursing care facilities that OSHA had previously inspected or investigated” for COVID-19–related issues.
NLRB Workplace Rules Case Moves Forward. March 7, 2022, was the deadline for stakeholders to submit amicus briefs in the NLRB’s pending case regarding its standard for determining when an employer’s facially neutral workplace rule violates the National Labor Relations Act. As the Buzz has previously discussed, many expect the Board to revert to a controversial interpretation that fails to take into account the employer’s legitimate reasons for promulgating a workplace policy, and instead could find a violation if there is any way that a rule could be read to interfere with employees’ right to engage in collective activity. A final ruling should come in the next few months.
First Lady of the Law. In celebration of International Women’s Day this week and Women’s History Month, the Buzz remembers the First Lady of the Law. This was the nickname given to Mabel Walker Willebrandt (1889–1963), who served as U.S. assistant attorney general from 1921 to 1929. Willebrandt began her career as an elementary schoolteacher in Los Angeles, California, while she studied law at night. During her final year of law school, Willebrandt began offering pro bono legal work in the local courts, which helped launch her amazing career:
Willebrandt began her government service as Los Angeles’s first female public defender. She argued more than 2,000 cases in that position.
At age 32, Willebrandt was appointed assistant attorney general by President Warren Harding. In this position, she focused primarily on enforcement of the Volstead Act, which instituted Prohibition.
Willebrandt argued more than 40 cases before the Supreme Court of the United States, including a successful argument in United States v. Sullivan, 274 U.S. 259 (1927), in which the Court ruled that earnings from illegal liquor sales were subject to income tax. The ruling formed the basis for the prosecution of Al Capone in 1931.
After President Herbert Hoover passed up Willebrandt for U.S. attorney general in 1929, Willebrandt resigned her position and returned to private practice in California, where she represented the Screen Directors Guild, as well as movie stars such as Jean Harlow and Clark Gable.
Willebrandt later earned her pilot’s license and promoted air travel with her friend, Amelia Earhart.
© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 70