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Washington Weekly Update 4-8-24

Situation Awareness

The House and Senate return to Washington, D.C., this week just in time for the beginning of the 2024 Masters Tournament. While Capitol Hill is a far cry from Augusta National, there is a familiar sense of growing anticipation in the air throughout the halls of the Senate and House office buildings. Will Senate Majority Leader Chuck Schumer (D-N.Y.) finally secure passage of his prized bipartisan national security supplemental or will Speaker of the House Mike Johnson (R-La.) emerge victorious with significant concessions on U.S domestic energy policy? This week may provide the answer. 

Senator Schumer’s latest “Dear Colleague” letter outlines his to-do list in the remainder of the 118th Congressional session, including the passage of a five-year reauthorization for the Federal Aviation Administration and expanding the Child Tax Credit—a key provision in the bipartisan tax package that continues to stall as a result of opposition from a handful of Republican senators. Additionally this week, members on the Senate and House Appropriations Committee will continue to hold a series of hearings with federal agency heads to determine their funding needs for fiscal year 2025. These hearings also provide committee members the opportunity to challenge the Biden administration’s regulatory agenda. On top of debates over whether to increase federal budgets or maintain current spending levels, both chambers will also have to consider an authorizing request submitted by President Biden for the reopening of the Port of Baltimore and the reconstruction of the city’s Francis Scott Key Bridge. 

DOL Acting Secretary Su Provides Insight into Overtime and Heat Standard Rules

In an interview with Bloomberg labor reporter Rebecca Rainey, Acting Secretary of Labor Julie Su spoke on the Department of Labor’s regulatory agenda for the remainder of the year. Speaking about DOL’s overtime rule, which would raise the current overtime wage threshold to $55,000 a year and is currently under review by the White House Office of Management and Budget, Acting Secretary Su said the final version of the rule would be  “within what DOL noticed.” In her column, Rainey notes that the regulation could set the wage threshold for overtime eligibility at $60,209 annually—a figure that was included in a blog post from the Small Business Administration’s Office of Advocacy. Regarding OSHA’s federal heat standard rule, Acting Secretary Su explained that OSHA would likely not have the time to finalize the regulations but nonetheless would put out a proposal. 

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ICYMI: DOL Releases Final “Walkaround” OSHA Inspection Rule

Two weeks ago, the Occupational Safety and Hazard Administration released its final rule amending its “Representatives of Employers and Employees” regulation to clarify that employees can authorize a third-party employee representative to accompany an OSHA Compliance Safety and Health Officer (CSHO) during a workplace inspection, commonly referred to as a “walkaround.” The third-party representative must be deemed “reasonably necessary” by the CSHO to assist during the inspection. In the final rule, OSHA also clarified that a third party may be reasonably necessary because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.

EPA Issues Memorandum on WOTUS Updated Rule Implementation for Civil Works Actions

The Army Corps of Engineers issued a new memorandum highlighting how the agency will protect non-jurisdictional features—including wetlands without a continuous surface connection to jurisdictional waters—through civil works and program actions following the Supreme Court’s Sackett v. EPA decision. The memorandum explains the Corps’ position that Sackett left these non-jurisdictional waters and wetlands especially vulnerable, making it critical that the Corps still protect these bodies within its applicable authorities. The actions explained in the memorandum include making agency-approved jurisdictional determinations available to the public on its website. These documents explain determinations made by the Corps for individual cases, which then become precedence for general post-Sackett determinations of whether a body of water falls under the Corps’ and EPA’s jurisdiction. Furthermore, the Corps will continue to evaluate compensatory mitigation proposals under Sec. 404 of the Clean Water Act (i.e., restoration, establishment, enhancement and preservation) to determine whether the proposal is sufficient to offset losses of aquatic resource functions caused by permitted activities, regardless of jurisdictional status.

House Hearing on Benefits for Independent Contractors

On Thursday, April 11, the House Education and Workforce Subcommittee on Workforce Protections will hold a hearing titled, “Unlocking Opportunity: Allowing Independent Contractors to Access Benefits.” The hearing will provide lawmakers with insight into potential policies guaranteeing that independent contractors are able to maintain their work arrangements while also gaining access to benefits. The hearing may also address the Biden administration’s recent “junk” health plans regulation that curbs the use of short-term health insurance plans. Supporters of such plans argue that they are beneficial for contract and self-employed workers. 

Subcommittee Chair Kevin Kiley (R-Calif.) has been a long-standing critic of the Department of Labor’s final rule amending how workers are classified under the Fair Labor Standards Act. Observers could consider this hearing as an opportunity for lawmakers opposed to the rule to discuss how employers can fulfill the responsibilities of providing benefits to workers while preserving workers’ status as independent contractors when they may otherwise be considered employees under DOL’s final rule. 

Congressional Democrats Push to Expedite Relief for Immigrant Work Permits

A bicameral group of Democratic lawmakers sent a letter to the White House, DHS, and USCIS urging the administration to issue an interim rule that would lengthen the automatic extension period for Employment Authorization Documents (EADs or “work permits”) from 180 days to a minimum of 540 days. With significant delays in processing times for work permits, the extension would avoid a scenario where current labor shortages are worsened due to an expiration of work authorizations.  

In 2022, USCIS released a temporary rule that increased the automatic extension period for employment authorization and EADs available to certain EAD renewal applicants to up to 540 days. The extension expired in October 2023 and automatic extensions reverted to the original 180-day period for eligible applicants who file Form I-765 renewal applications. According to OMB’s website, OIRA has concluded its review of a second rule: “Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants.”