Skip links

Washington Weekly Update 12-11-23

Situational Awareness
The Senate and House return to Washington, D.C., this week for the remaining four legislative days in the calendar year. The House will consider H.R.357, the Ensuring Accountability in Agency Rulemaking Act, which would require that any agency rule promulgated under notice and comment procedures must be issued and signed by an individual who was appointed by the president and confirmed by the senate. This bill attempts to address the current successor issue raised by House Republicans against Acting Secretary of Labor Julie Su. The administration and congressional leadership are attempting to reach a deal on funding for Ukraine, Israel and the border as the number of days on the legislative calendar dwindles. If negotiators fail to reach an agreement this week, they are unlikely to get a package passed before the end of the year.

DOJ Reaffirms OSHA’s Authority to Issue Safety Rules

The U.S. Department of Justice has upheld a legal precedent established by several federal appeals court and the U.S. Supreme Court affirming that the 1970 Occupational Safety and Health Act grants OSHA the authority to regulate workplace safety. The decision followed a lawsuit against OSHA issued by an Ohio construction company on the grounds that Congressional lawmakers wrongfully delegated too much power to OSHA to write safety rules. The lawsuit didn’t challenge OSHA’s health rules. As recently as January 2022, the Supreme Court ruled to limit OSHA’s regulatory authority to issue health standards (i.e., COVID-19 mandatory test-or-vaccination rule). 

Fall Unified Regulatory Agenda Released

Twice annually, the federal government releases its Unified Regulatory Agenda to provide updates on its planned regulatory actions for the upcoming year. NCA is following a  number of actions that may affect private clubs:

Department of Labor

  • In conjunction with the Department of Homeland Security (DHS), the Department of Labor (DOL) will issue a proposed rule to update the process by which employers seeking to employ H-2B workers would obtain temporary certification from DOL for use in petitioning DHS to employ a nonimmigrant worker in H-2B status.
  • DOL is proposing to issue a rule to update the notice and comment requirements of its certification process used to determine that the employment of H-2B workers won’t adversely affect the wages and working conditions of similarly employed U.S. workers.
  • DOL will issue its final rule to increase overtime wage thresholds to $55,000 a year in April 2024. 
  • DOL will finalize regulations that address and clarify the distinction between employees and independent contractors under the Fair Labor Standards Act.

Occupation Safety and Health Administration

  • OSHA is proposing to issue a rule that would establish a federal tree care standard in January 2024.
  • OSHA will begin formal analysis of the Small Business Regulatory Enforcement Fairness Act report issued on the agency’s request for information on a federal heat illness and injury prevention standard. 

Environmental Protection Agency

  • EPA is considering issuing a request for public comment on a proposal to reinstate certain requirements that were amended in 2020 regarding the application exclusion zone (AEZ) requirements of the Agricultural Worker Protection Standard (WPS). The agency has determined that several aspects of the AEZ provisions, such as those regarding the applicability of the AEZ and distance determination criteria, should be revised for those who may be near ongoing pesticide applications.

Army Corps of Engineers

  • The Corps is proposing to issue a proposed rule converting its policy that governs the Section 408 program to a binding regulation. The Section 408 program allows companies to alter a USACE Civil Works project. 
  • The Corps is proposing to issue a proposed rule to update criteria it uses in making determinations in flood control cost-sharing requirements where the primary purpose of a study or project is flood damage reduction.

EPA Releases Draft Biological Evaluation of Rodenticides

EPA has released a draft Biological Evaluation (BE) that includes EPA’s draft effects determinations for federally listed and proposed threatened and endangered species and critical habitats for 11 rodenticide active ingredients. Once finalized, the draft will serve as the EPA’s Rodenticide Strategy to guide how the agency addresses mitigation for rodenticides going forward. The draft BE incorporates a “likely to adversely affect” determination, which means that EPA reasonably expects that at least one individual animal or plant, among a variety of listed species, may be exposed to the pesticide at a sufficient level to have an adverse effect.

Congressional Inquiries into Joint Employer Rule 

House Education and the Workforce Committee Chairwoman Virginia Foxx (R-N.C.) and Workforce Protections Subcommittee Chairman Kevin Kiley (R-Calif.) sent a letter to Acting Secretary of Labor Julie Su requesting her commitment not to issue a joint employer proposed rule under the Fair Labor Standards Act for the rest of her tenure at the Department of Labor (DOL). The letter also announced that the Committee will conduct greater oversight over the National Labor Relations Board’s (NLRB) final rule issuing a new standard to determine joint employer standard under the National Labor Relations Act.

The House Small Business Committee issued its own GOP-led letter to NLRB leadership requesting additional information on the agency’s own joint employer standard. The letter nearly accuses the NLRB of failing to take into consideration how the new standard could hinder employers’ ability to predict costs of contracts with providers, vendors, and subcontractors. 

House Education and Workforce Legislative Markup

On Tuesday, Dec. 12, the House Education and Workforce Committee will hold a markup on four pieces of legislation, including a disapproval resolution of the NLRB’s joint employer rule. The Committee will also consider H.R. 3400, the Small Businesses Before Bureaucrats Act, which would update the NLRB’s jurisdictional standards to $500,000 for non-retail businesses, which would significantly reduce the number of businesses that fall under the NLRB’s regulatory jurisdiction. 

House Small Business Hearing on the State of Small Business

Also on Tuesday, the House Small Business Committee will hold a hearing titled, “A Year in Review: The State of Small Business in America.” The hearing’s witnesses include individuals from a gas turbine manufacturer, a towing company, a digital marketing academy and a minority-owned co-working space. The hearing will focus on a variety of trends, such as those in the labor market, including worker shortages and delays in processing migrant worker visas, and general economic pressures from inflation and supply chain disruptions. 

House Education and Workforce Hearing on Biden Administration Organized Labor Agenda

The House Education and Workforce Subcommittee on Health, Employment, Labor, and Pensions will hold a hearing Wednesday titled, “Protecting Workers and Small Businesses from Biden’s Attack on Worker Free Choice and Economic Growth.” In the press release announcing the hearing, Subcommittee Chair Bob Good (R-Va.) criticized the NLRB’s recent actions that place pressure on workers to join labor unions. The hearing will also highlight legislation that promotes employee free choice, preserves independent contractor status, and offer greater protections to small businesses.

Thursday Webcast: Turf Wars
Join NCA on Thursday, December 14 at 2pm ET., to learn how to effectively navigate the complex relationship between general managers, golf professionals and golf course superintendents. This discussion will help bridge the gap between these key club decision-makers. Register here.

NCA webcasts are free for members and $99 for nonmembers.