Situational Awareness
Both the House and Senate are in session this week. Mere hours after President Donald Trump delivered his inauguration speech in the rotunda of the U.S. Capitol, the Senate voted to confirm several of the President’s cabinet nominees, including Sen. Marco Rubio (R-Fla.) as Secretary of the State. Lawmakers had held an earlier vote to advance legislation that would expand mandatory detention of immigrants who had committed non-violent crimes such as shoplifting. The bill will now be sent to the House, which passed its own version of the bill earlier this month.
The Senate is slated to vote on several additional presidential nominations this week. The House will vote on legislation that would expedite wildfire prevention projects and consider the Senate-passed version of the Laken Riley Act.
Upon entering the Oval Office, President Trump sent a two-page memo to Congressional Republican lawmakers, outlining his legislative priorities for his new administration. These priorities preview several executive orders Trump is expected to sign in the early days of his second administration.
NCA Submits Comments on OSHA Heat Standard Proposal
Last week, NCA submitted comments on behalf of its members in response to the Occupational Safety and Health Administration’s (OSHA) proposed rulemaking on “Heat Illness Prevention in Outdoor and Indoor Work Settings.” 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 exposed to an “initial heat trigger” of 80 degrees Fahrenheit. Under the HIIPP, workers exposed to these temperatures would have to be provided access to drinking water and readily accessible break areas to comply with mandatory breaks resulting from the heat triggers.
If temperatures reach 90 degrees Fahrenheit—referred to as the “high heat trigger”—employers would be required to provide employees a minimum 15-minute paid rest break at least every two hours. Employers would also be required to implement acclimatization plans for new or returning employees who haven’t yet adjusted to the heat, such as with gradual increases in workload or 15-minute rest breaks every two hours.
NCA requested that the agency refrain from finalizing the overburdensome rulemaking and allow employers to implement their own workplace safety plans developed in coordination with workers. NCA’s comments further criticized the one-size-fits-all approach OSHA uses as it pertains to the justification behind the “initial heat trigger” level.
Trump Signs Record Number of Day 1 Executive Orders
Upon entering the Oval Office, President Trump, in his first executive order (EOs), rescinded 78 executive actions implemented by the Biden administration. The rescinded actions covered a wide range of topics, including addressing climate change and the root causes of migration, as well as restrictions on offshore drilling in certain areas. Notably, President Trump imposed a freeze period on all federal rulemaking until a department or agency head that has been appointed by the President reviews and approves the rule. There is an exemption for any rules deemed by the acting director of the Office of Management and Budget (OMB) as necessary to address emergency situations or other urgent circumstances.
The President also signed several EOs that are designed to address illegal immigration into the U.S., including an order that would end birthright citizenship for immigrants who lack legal status, a declaration of a “national emergency” at the U.S.-Mexico border, and an order designating drug cartels as terrorist organizations.
SCOTUS Issues Opinion on Proof Standard for Overtime
Last week, the Supreme Court ruled that employers do not have to prove a heightened standard of proof to demonstrate exemption from overtime rules under the Fair Labor Standards Act (FLSA). The court’s unanimous decision will make it easier for employers to show that their workers aren’t entitled to overtime protections. The case, E.M.D. Sales, Inc. v. Carrera, reverses a decision made by the U.S. Court of Appeals for the Fourth Circuit that found a higher standard applies.
When a law is silent on the standard of proof, the preponderance-of-the-evidence standard typically applies, Justice Brett Kavanaugh wrote in the court’s unanimous opinion. Under that standard, an employer can demonstrate that the burden of proof has been met when there is a greater than 50% chance their claim is true.
Julie Su Replaced as Acting DOL Secretary
The Trump administration quietly selected Department of Labor (DOL) career staffer Vince Micone to serve as acting secretary of the Department of Labor, pending Lori Chavez-DeRemer’s confirmation by the Senate to lead the agency. The Senate committee of jurisdiction has not yet scheduled a confirmation hearing.
Chavez-DeRemer’s second in command is slated to be former U.S. Equal Employment Opportunity Commission (EEOC) Commissioner Keith Sonderling, who was selected by President Trump as DOL deputy secretary last week. Sonderling will also need to be confirmed by the Senate.
House Education and Workforce Committee Outlines Oversight Work
At the beginning of a new legislative session, Congressional committees hold organizing meetings to adopt rules packages that determine how the committee will consider all jurisdictional work, and an oversight plan. During its organizing meeting held last week, the House Committee on Education and Workforce, which has jurisdiction over the DOL, adopted its own oversight plan that includes the following priority areas:
- National Labor Relations Board (NLRB). The committee will conduct oversight to ensure that the NLRB is properly implementing and enforcing the National Labor Relations Act (NLRA). Following four years of the Biden-Harris administration, the NLRB and its Office of General Counsel are in need of scrutiny to ensure the NLRB is interpreting and implementing the NLRA in a manner that supports workers and employers.
- Wage and Hour. The committee will engage with workers, employers and other stakeholders to consider how best to modernize federal wage and hour laws. The Committee will also monitor the DOL Wage and Hour Division’s enforcement activity, compliance assistance and proposals to revise rules under the Fair Labor Standards Act and other relevant statutes.
- Workplace Safety and Health. The committee will monitor the Occupational Safety and Health Administration’s (OSHA) efforts to ensure safe and healthy workplaces by properly setting standards and providing education, outreach and assistance to workers and employers. In particular, the committee will monitor OSHA’s efforts to end or modify Biden-Harris administration regulatory efforts that burden job creators while doing little to improve workplace safety.
- Labor Certifications for Temporary Guest Workers. The committee will monitor DOL’s Office of Foreign Labor Certification to ensure DOL processes applications for foreign worker labor certifications in a timely and appropriate manner.
FTC Issues Policy Statement on Independent Contractors
In the final days of the Biden administration, the Federal Trade Commission (FTC) issued a policy statement clarifying that independent contractors are shielded from antitrust liability when engaging in protected bargaining and organizing activities. According to the policy statement, the “protection of all workers from antitrust liability when they are engaged in protected labor activities is firmly grounded in the statutory text, consistent with existing case law, and reflective of the original meaning of the labor exemption.”
The policy statement was opposed by Commissioner Andrew Ferguson, who is slated to replace Lina Khan as chair of the FTC. Ultimately, the policy guidance can’t be considered a binding legal document under the Administrative Procedure Act. It could be expected that the Trump administration ultimately rescinds the guidance.
Trump EPA Pick Talks WOTUS During Confirmation Hearing
Last week, the Senate Environment and Public Works Committee held a confirmation hearing for Lee Zeldin, President Trump’s nominee for EPA administrator. During the hearing, Zeldin received questions regarding the Biden administration’s “waters of the United States” (WOTUS) rule and the Supreme Court’s Sackett decision. While Zeldin declined to comment on any future rulemaking, he described the Sackett ruling as “clear” and emphasized the role of states in water management.
The Trump administration is expected to reexamine the Biden administration’s Clean Water Act policies and possibly reverse an amended WOTUS rule that was issued following the Supreme Court’s Sackett ruling.
Kentucky Seeks Summary Judgment Against Biden WOTUS Rule
The state of Kentucky has submitted a motion for summary judgment to the U.S. District Court for the Eastern District of Kentucky asking the court to rule that the Biden administration’s updated WOTUS rule violates the Supreme Court’s Sackett ruling. In its motion, Kentucky claims that the rule is impermissibly vague, arbitrary, and further violates the Supreme Court’s major questions doctrine and the 10th Amendment.
A federal judge for the Eastern District previously ruled that Kentucky lacked standing in its challenge. In August, the U.S. Court of Appeals for the Sixth Circuit declared the ruling erroneous, vacated it, and remanded the case back to the district court.