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Washington Weekly Update 5-6-24

Situational Awareness

Both the Senate and House of Representatives are in this week. The Senate will continue to debate a five-year reauthorization for the Federal Aviation Administration. In the House, lawmakers are scheduled to vote on several pieces of legislation, including a bill that would modify the Department of Energy’s updated energy efficiency standards for home appliances and another bill that would prohibit immigrants without legal citizenship from being counted toward apportionment for Congressional districts and the Electoral College. 

ICYMI: DOL Finalizes Overtime Rule

The Department of Labor (DOL) finalized its regulation entitled Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees covering exemptions from the Fair Labor Standard Act’s (FLSA) minimum wage and overtime regulations. The final rule increases the standard salary level as well as the highly compensated employee (HCE) total annual compensation threshold. The standard salary level and HCE total annual compensation threshold will each increase on a schedule, through 2027, when DOL will recalculate both standards. DOL is not making any changes to existing job duties requirements, changing special salary levels in the territories or adjusting the 10% limit on commissions that can be included in the threshold. DOL estimates 3.6 million additional workers will fall under the FLSA’s overtime requirements.

New Lawsuit Challenging DOL Independent Contractor Rule

The New Civil Liberties Alliance has filed a complaint in the U.S. District Court for the District of New Mexico challenging DOL’s final independent contractor rule. The request for the rule to be overturned was filed on behalf of trucking company, Colt & Joe Trucking, which claims it is completely unable to hire independent contractors without risking FLSA liability. The lawsuit, one of several pending complaints, argues that there are several reasons that the final rule should be overturned, including DOL Acting Secretary Su’s lack of authority to implement the rule. Furthermore, the plaintiffs argue that DOL violated the Administrative Procedure Act because the final independent contractor rule “exacerbates the confusion concerning the classification of workers as employees or independent contractors” rather than demonstrating “good reasons” for changing the standard used when determining the classification of workers. See NCA’s backgrounder on the rule here.

CDC Announces New Heat and Health Initiative

In partnership with the National Oceanic and Atmospheric Administration’s (NOAA) National Weather Service (NWS), the Center for Disease Control and Prevention (CDC) launched a new Heat and Health Initiative to protect Americans from heat exposure. The new initiative has three resources, which combined, are intended to provide proactive actions individuals can take to protect themselves: stay cool, stay hydrated, know the symptoms.

  1. CDC and NOAA’s HeatRisk Forecast Tool provides a seven-day heat forecast nationwide that informs individuals when temperatures may reach levels that could harm your health.
  2. CDC’s HeatRisk Dashboard integrates the HeatRisk Forecast Tool data with other information, including details on local air quality, to inform the public on how best to protect themselves when outdoor temperatures are high and could impact their health.
  3. CDC clinical guidance helps clinicians keep at-risk individuals safe when temperatures rise.

The Biden administration has made it a policy priority to provide workers with various informational resources across several agencies on the dangers of exposure to extreme weather and preventive measures to avoid illness. Most recently, the Occupational and Safety Administration concluded a Small Business Regulatory Enforcement Fairness Act process in November 2023, a step in a rulemaking process that included the convening of a Small Business Advocacy Review panel to gain input from small entity representatives on the potential impacts of a heat-specific standard.

EPA Releases Document to Clarify Agency Coordination on WOTUS Rule

In response to requests from industry stakeholders for more information on the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers’ coordinated implementation of their post-Sackett “Waters of the United States” (WOTUS) rule, the two agencies released a new document intended to provide the public with an update. The document includes an explanation on how, if a jurisdictional determination is elevated to agency headquarters for review, a policy memorandum may be issued providing guidance to the respective EPA regional and Corps district offices. However, the agencies clarify that memorandums don’t impose legally binding requirements on the regulated community and may or may not apply to a particular situation based upon the circumstances. 

Biden Vetoes NLRB Joint Employer CRA

Last week, President Joe Biden vetoed a Congressional Review Act joint disapproval resolution that would overturn the National Labor Relation Board’s new rule for determining when two businesses jointly employ the same workers. The CRA resolution was nearly passed along strict partisan margins in both the House and Senate, meaning that lawmakers will not reach the necessary two-thirds vote to overturn President Biden’s veto. Most recently, the rule was vacated by the US District Court for the Eastern District of Texas. The measure will go to President Biden’s desk where it will be vetoed.

House Oversight Hearing with DOL Acting Secretary Su

Last week, the House Committee on Education and Workforce held an oversight hearing with Acting Secretary of Labor Julie Su to discuss the Department of Labor’s (DOL) Fiscal Year 2025 budget and the agency’s policy priorities for the remainder of the year. Overall, GOP members of the committee questioned the DOL’s authority to finalize and implement its slate of final rules because of Acting Secretary Su’s unconfirmed status. They also characterized the DOL’s regulatory agenda as harmful to workers and small businesses. On the other side of the dais, Democratic members of the committee spoke about the need for new worker protections against wage theft and workplace hazards. 

Acting Secretary Su repeatedly referenced data on job creation, unemployment, and wage rates to refute Republican lawmakers’ arguments. In response to questions about DOL’s legal authority to issue its new overtime rule, she explained how the agency considered existing case law that struck down a prior version of the rule before issuing the final rule. When discussing DOL’s final independent contractor rule, Su argued that the rule restores decades of case law on how to determine whether a worker is an independent contractor or an employee.

Congressional FY25 Appropriations Hearings

On Wednesday, May 8, the Senate Environment and Public Works Committee will hold a hearing with EPA Secretary Michael Regan to examine EPA’s FY25 budget request. On the same day, the Senate Appropriations Committee will receive testimony from DOL Acting Secretary of Labor Julie Su on DOL’s FY25 budget request.