Situational Awareness
The Senate is in session this week while the House is away for a weeklong recess. The Senate will consider several federal judicial nominations. Senate Majority Leader Chuck Schumer (D-N.Y.) has made confirming as many of President Biden’s judicial nominees as possible a top priority. With several legal challenges already filed against some of the Biden administration’s most notable regulations (i.e., DOL’s overtime and independent contractor rule, EPA’s WOTUS rule), federal appeals judges are the last authority in either preserving or unraveling President Biden’s legacy.
House Appropriations Passed Spending Bill with H-2B Visa Language
The House Appropriations Committee approved its FY25 Homeland Security spending bill, which included language that authorizes the Department of Homeland Security to issue 64,000 additional H-2B visas once the annual cap is met. The committee adopted an amendment offered by Rep. Andy Harris (R-Md.) to increase the H-2B temporary non-agricultural worker cap and make the visa issuance mandatory. Another amendment made in order was offered by Rep. Dan Newhouse (R-Wash.); it prohibits USCIS from charging an “Asylum Program Fee” for U.S. companies on their visa applications for employees.
NCA will host “H-2B Visas 2025: Trends, Updates and Opportunities,” at 2 p.m. Eastern, Thursday, July 25. This one-hour webcast is free for NCA members and will include time for Q&A. Register here.
OSHA Sends Proposed Heat Illness Rule for Review
The Occupational Safety and Health Administration (OSHA) has submitted a proposed heat stress rule. “Heat Illness Prevention in Outdoor and Indoor Work Settings,” has been sent to the White House Office of Management and Budget (OMB) for a preliminary review. It’s uncommon for a proposed rule to be submitted to OMB before it’s published for a public comment period. Based on the information provided by OSHA to OMB’s Office of Information and Regulatory Affairs (OIRA), it has yet to be determined whether OSHA has the legal authority to issue a federal heat standard. If they are deemed to have the authority, the proposed rule will be made public for feedback.
OSHA has also outlined one alternative to proposed rulemaking, which would be to rely on its General Duty Clause, which has enabled the issuance of heat-related citations and bolstered OSHA’s three-year National Emphasis Program (NEP) on heat-related hazards. However, the General Duty Clause limits OSHA to imposing penalties against employers only after a worker has died or been injured
SCOTUS Rules Against NLRB in Starbucks Case
Last week, the Supreme Court ruled 8-1 in a case that could curb the National Labor Relations Board’s ability to intervene when a company is accused of unfair labor practices. Justice Clarence Thomas wrote the opinion for the majority, which included all nine justices at least in part. Justice Ketanji Brown Jackson wrote an opinion partly concurring and partly dissenting.
After a Starbucks store in Tennessee fired several employees seeking to unionize the coffee shop, NLRB lawyers asked a federal judge for an injunction reinstating the workers. When Starbucks sought an appeal, the U.S. Court of Appeals for the Sixth Circuit found that the NLRB satisfied its burden of showing “‘reasonable cause’ to believe that employers engaged in unfair labor practices and that an injunction protects the Board’s remedial power.”
The basic issue in the case is what the NLRB has to prove to get a preliminary injunction against an employer while it conducts administrative proceedings to determine if the employer committed an unfair labor practice. In the majority opinion, Justice Thomas argued that the standard the NLRB sought would empower the government to win every case made against an employer.
GOP Senators Introduce CRA to Block Overtime Rule
Sen. Billy Cassidy (R-La.), the Ranking Member of the Senate Committee on Health, Education, Labor, and Pensions, and 30 other Republican Senators introduced a disapproval resolution under the Congressional Review Act (CRA) that would block the Department of Labor’s (DOL) final overtime rule from being implemented. Two weeks ago, a group of House GOP lawmakers introduced their own disapproval resolution of DOL’s overtime rule. The final rule would expand overtime pay eligibility to millions of workers by raising the exemption threshold annual salary to $43,888 beginning on July 1, 2024, and $58,656 beginning on January 1, 2025. The salary threshold would be automatically updated every three years beginning July 1, 2027, based on current earnings data.
The CRA allows lawmakers to overturn agency rulemaking, but the actions must also be signed by the president. This makes it nearly impossible for GOP lawmakers to successfully invalidate DOL’s latest batch of rulemaking. Most recently, the president vetoed a bipartisan resolution that sought to overturn the NLRB’s joint employer standard that had passed the Senate with the help of three lawmakers who caucus with Senate Democrats.
Register to Upcoming Summer Webcasts
NCA is presenting a series of critical webcasts this summer covering topics such as GM/COO performance management, club culture, real estate tax assessments and the state of restaurants. Register to upcoming webcasts, or watch previous presentations, by clicking here.
- Thurs., June 20 | 2 pm ET. Best Practices for Establishing a Modern-Day General Manager/COO Performance Management System. Register Here.
- Thurs., July 11 | 2 pm ET. Club Culture: How to Define It and Why You Need to Understand It. Register Here.
- Thurs., July 18 | 2 pm ET. Understanding and Managing Your Club’s Real Estate Tax Assessment. Register Here.
- Thurs., July 25 | 2 pm ET. H-2B Visas 2025: Trends, Updates and Opportunities. Register Here.
- Thurs., Aug. 8 | 2 pm ET. State of the Restaurant Industry. Register Here.