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Washington Weekly Update 11-6-23

Situational Awareness

The House and Senate are in session this week. The House will consider the Transportation, Housing and Urban Development Appropriations bill. The Senate will consider President Biden’s nominee to lead the National Institutes of Health and hold procedural votes on advancing three district court nominees.

NCA Filing Comments Today on DOL Overtime Proposed Rule

NCA is filing comments with the Department of Labor (DOL) today urging the department to withdraw the proposed rule due to its negative impact on businesses and employees, particularly those who rely on commissions, such as golf and tennis instructors, and the highly seasonal nature of clubs. The comments raise questions about whether the automatic three-year update proposed is beyond the authority granted to the DOL through the Fair Labor Standards Act (FLSA). In addition, NCA reminds the DOL that a largely similar rule finalized in 2016 setting the overtime threshold at just over $47,000 was vacated by a federal court because a threshold that high effectively made the duties test obsolete, which the court ruled conflicted with the intent of the FLSA; the 2023 proposed rule would set the threshold somewhere between $55,000 and $60,000. It is unclear when the DOL will move to finalize the proposed rule, though the most likely timeframe is February or March. Given the successful legal challenge of a largely similar rule in 2016, it is also likely to face litigation.

DHS and DOL Release Additional H-2B Visas

The Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), announced it expects to make an additional 64,716 H-2B temporary nonagricultural worker visas available for FY 2024, on top of the congressionally mandated 66,000 H-2B visas that are available each fiscal year. These additional H-2B visas represent the maximum permitted under the September 2023 Fiscal Year 2024 Continuing Resolution.

Most recently, both DHS and DOL proposed regulations to further strengthen worker protections in the H-2A and H-2B visa programs, and the White House-led H-2B Worker Protection Taskforce released a report detailing new actions to be taken by federal government agencies to strengthen protections for vulnerable H-2B and similarly situated U.S. workers.

Overview of Senate Small Business Hearing on Outdoor Recreation

Last week, the Senate Committee on Small Business and Entrepreneurship held a hearing titled “The Great Outdoors: Small Businesses and America’s Outdoor Recreation Economy.” Committee Chair Jeanne Shaheen (D-N.H.) focused on the importance of preserving public lands and ensuring small business resources are accessible to rural communities. Ranking Member Joni Ernst (R-Iowa) expressed concern regarding overly burdensome rules for small business owners and offered her Prove It Act of 2023 as a possible solution. The legislation would require federal agencies to demonstrate that any new regulation is compliant with existing laws and considers both the direct and indirect costs placed on small businesses. During their testimonies and questioning, witnesses directed their remarks to focus on the importance of environmental conservation efforts on public lands and waters, as well as the importance of providing clear information about the Small Business Administration’s loan programs. 

House Passage of Interior-Environment Appropriations Bill

The House of Representatives passed its Interior-Environment spending package, which would set funding levels for the Department of Interior and Environmental Protection Agency $13.43 billion (35%) below the FY 2023 enacted level and $21.37 billion below the President’s Budget Request for FY 2024. Ahead of the bill’s passage, the White House released a Statement of Administration Policy (SAP) opposing the legislation. Notably, the appropriations bill includes a section that would invalidate the EPA’s updated Waters of the United States rule. In the SAP, the White House emphasized that the provision would “jeopardize protections for clean water, cause increased uncertainty in the scope of waters that receive Clean Water Act protections, threaten economic growth in agriculture, local economies, and downstream communities, and threaten clean drinking water sources.”

NLRB and OSHA Memorandum of Understanding

The National Labor Relations Board (NLRB) and Occupational Safety and Health Administration (OSHA) signed a Memorandum of Understanding (MOU) that would establish a process for sharing information related to investigations of retaliation against workers who raise safety complaints. For example, the NLRB will share information to OSHA related to workers that are likely or currently exposed to health or safety hazards. Additionally, the MOU directs the two agencies to provide resources to workers who file complaints against employers. If a worker files an untimely complaint with OSHA, investigators will refer the petitioner to file a charge with the NLRB because NLRB’s time limit to file is longer than OSHA’s. Furthermore, if NLRB identifies workers exposed to workplace hazards during an investigation, officials will direct workers to contact OSHA and file a complaint.