Situational Awareness
Both the House of Representatives and Senate are in session this week. The House is slated to consider several President Joe Biden announced yesterday that he will no longer seek the Democratic nomination for president. The decision, made after a faltering few weeks following a disastrous debate performance, puts Democrats in an historic position heading into their August convention. Furthermore, as lawmakers in the House and Senate return to Capitol Hill after a week-long recess, all policymaking beyond what is considered as a “must-pass” item could stall while Congressional leadership teams scramble to respond in a unified manner to the president’s announcement.
After the House failed to pass the FY25 Legislative Branch spending bill—which is considered one of the least controversial funding measures—before departing for its most recent recess, Speaker of the House Mike Johnson (R-La.) will seek to minimize any defections within the House GOP conference as his leadership team continues to pass as many FY 2025 appropriations bills as possible during the remaining two weeks of the summer work period. This week, lawmakers are set to vote on four additional spending measures: Agriculture-FDA, Financial Services, Interior-Environment and Energy-Water Development. Lawmakers in the House are also scheduled to vote on the Water Resources Development Act of 2024, a biennial package that authorizes new investments in Army Corps of Engineers projects and programs. The Senate will consider several executive branch nominations.
Several Congressional committees in both the House and Senate will receive testimony this week from top U.S. Secret Service officials as they investigate mistakes that led up to an attempted assassination against former President Donald Trump during a campaign rally in Pennsylvania. As Republican lawmakers return from the RNC in Milwaukee, they are expected to continue touting a message centered on the importance of unity, both within the Republican party and nationally, to avert any additional political violence.
NLRB Dismissed Appeal of Joint Employer Rule
On July 19, the National Labor Relations Board (NLRB) filed a motion to dismiss its appeal of the joint employer rule in the Fifth Circuit Court of Appeal, saying that the board believes the rule is lawful but wants “to consider options for addressing the outstanding joint employer matters before it.” In March, a Trump-appointed federal judge in the US District Court for the Eastern District of Texas vacated the NLRB’s rule that broadened the board’s test for determining when multiple companies jointly employ workers and thus share liability and obligations under federal labor law.
The NLRB’s decision to abandon its 2023 joint employer rule signals that the Democratic-controlled board may attempt to return to case adjudication as the method for setting the test for joint employment rather than through notice-and-comment rulemaking. In a rulemaking petition filed last month, the AFL-CIO and the Service Employees International Union raised the prospect of returning to case adjudication for defining the joint employer standard.
Federal Court Expresses Skepticism on Kentucky WOTUS Lawsuit
The Sixth Circuit Court of Appeals held oral arguments July 18 in Kentucky v. EPA, during which Judge Raymond M. Kethledge suggested that Kentucky file a new lawsuit challenging the amended WOTUS rule instead of expending court resources arguing about actions related to the original rule. Following the release of EPA’s preliminary WOTUS rule in January 2023, the Commonwealth of Kentucky and a business group coalition led by the Kentucky Chamber of Commerce filed a motion for an injunction, which was dismissed in April 2023 by the U.S. District Court for the Eastern District of Kentucky. The plaintiffs filed an appeal, which coincided with SCOTUS’ Sackett decision. Despite EPA having released an updated WOTUS rule, the plaintiffs in Kentucky v. EPA haven’t amended their lawsuit. During oral arguments, Kentucky Solicitor General Matthew Kuhn clarified that the lawsuit’s argument centers around whether Kentucky had standing—which was challenged by the Department of Justice—to file its complaint when the original rule was still on the books.
The case has the potential to impact another pending lawsuit, Texas v. EPA. The two states leading the suit, Texas and Idaho, have argued that the Biden administration lacked good cause to amend the definition of waters of the United States after the Sackett ruling without issuing public notice.
House Workforce Protections Subcommittee Holds Hearing on OSHA Regulations
The House Education and Workforce Subcommittee on Workforce Protections will hold a hearing on Wednesday, July 24, entitled “Safeguarding Workers and Employers from OSHA Overreach and Skewed Priorities.” In a press release announcing the hearing, Subcommittee Chair Kevin Kiley (R-Calif.) said that “[lawmakers] must ensure that any new regulations do not overburden the regulated community with prescriptive mandates. Meanwhile, little work has been completed by the agency on regulatory priorities that are essential to safeguarding workers in high-hazard industries.”
NCA anticipates that the hearing will partially focus on OSHA’s recent proposed heat illness prevention rule. The proposed rule would require employers with more than 10 workers to develop and implement a worksite heat injury and illness prevention plan (HIIPP) when workers are or can be expected to be exposed to a heat index of 80 degrees Fahrenheit—referred to as the “initial heat trigger”—or higher. Under the HIIPP, workers exposed to these temperatures would have to be provided access to drinking water and readily accessible break areas.
The subcommittee could also discuss OSHA’s “walkaround” rule, which went into effect in May and amended the agency’s 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.
House Administration Committee Holds Hearing on Chevron Implications
The House Administration Committee will hold a hearing on Tuesday, July 23, entitled “Congress in a Post-Chevron World.” The hearing witnesses include a Georgetown law professor, the lead economist at the Heritage Foundation and fellows from the American Enterprise Institute and Competitive Enterprise Institute. The hearing is in response to the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, a landmark case overturning decades of precedent and eliminating Chevron deference. The court determined in Loper that courts may not defer to the interpretation of federal agencies because a statute is ambiguous.
The death of Chevron will have wide-ranging implications for federal policy and takes the duty of interpreting congressional intent away from administrative agencies in favor of federal courts. Environmental regulators have long utilized Chevron deference to push the limits of federal authority to protect the environment. Those efforts must now be recalibrated and will likely face a different degree of success.
Register for Upcoming Summer Webcasts
NCA is presenting a series of critical webcasts this summer on H-2B updates, the state of the restaurant industry and utilizing AI at your club. Register to upcoming webcasts, or watch previous presentations, by clicking 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.
- Thursday, Sept. 12 | 2pm ET. Unlock the Potential of Your Back-Office Staff: Using AI to Transform the Finance Function. Register Here.