Beltway Buzz, September 29, 2023

Shutdown Showdown. Rather than hurtling into a federal government shutdown, this week has been more of a slow, gradual, depressing slide into the shutdown, as it became apparent this week that last-minute measures to keep the government open would not materialize. Although the U.S. Senate has reached an agreement on a bipartisan continuing resolution, a vote on that package might not even happen until after funding for the government runs out on September 30, 2023. Even then, the bill would have zero chance of passing the U.S. House of Representatives as written. With the shutdown all but inevitable, the focus on Capitol Hill is shifting towards figuring out a way to reopen the government. It is unclear how—or when—this will eventually end.

Agency Contingency Plans. Seeing the writing on the wall, the White House’s Office of Management and Budget has updated its website listing the government shutdown contingency plans for federal agencies. Generally speaking, most agency operations that do not involve the prevention of fatalities or imminent danger will cease. Here are some tidbits from the shutdown plans for the agencies that the Buzz tracks the most.

U.S. Department of Labor

• The Office of Federal Contract Compliance Programs (OFCCP). “The OFCCP will suspend all operations, including conducting compliance evaluations, complaint investigations, and outreach to external stakeholders.”
• Occupational Safety and Health Administration (OSHA). Given OSHA’s role regarding workplace safety, of 2,106 employees on board prior to the lapse, 1,180 will remain during a lapse in appropriations. OSHA will continue to inspect, among other things, “imminent danger situations,” conduct investigations of “workplace fatalities and catastrophes,” and investigate situations that “present a high risk of death or serious physical harm with the potential to cause death.”
• Wage and Hour Division (WHD). Conversely, at WHD, of 1,538 employees only seven will remain. WHD will cease “all regulatory work” (including, perhaps, finalization of its pending independent contractor regulation) and “enforcement activities that do not involve emergencies related to the safety of human life or protection of property” but will “[r]espond to and investigate any incidents involving child labor violations.”
• Employment and Training Administration. Foreign labor certifications will not be processed. Moreover, “[a] prolonged lapse of funding will exacerbate processing delays for the Office of Foreign Labor Certification activities especially temporary labor certification requests under the H2A and H2B Visa programs.”
• Unemployment Insurance (UI). “UI benefits will continue to be paid since funds are available as long as state UI agencies have sufficient administrative funding to operate and process claims.”
• Mine Safety and Health Administration (MSHA). “MSHA will continue to conduct regular mandated inspections.”

U.S. Equal Employment Opportunity Commission (EEOC)

• Charges will be accepted, but not investigated.
• The agency “will continue to litigate in cases where an extension has not been granted.”
• Mediations will be canceled and Freedom of Information Act (FOIA) requests will not be processed.

National Labor Relations Board (NLRB)

• Of 1,241 employees, twelve will remain during a shutdown.
• The Board will continue to maintain “[n]ecessary court actions” in order “[t]o protect federal legal actions already taken.”
• The Board will cease all casehandling, which includes representation cases (hearings and elections) and unfair labor practice cases (investigations, hearings, complaints, and settlements).

House Republicans Shine Spotlight on OSHA Practices. On September 27, 2023, the House Subcommittee on Workforce Protections held a hearing entitled, “Examining the Policies and Priorities of the Occupational Safety and Health Administration.” Assistant Secretary of Labor for Occupational Safety and Health Douglas L. Parker was the sole witness. Chair of the Subcommittee, Kevin Kiley (R-CA) criticized OSHA for focusing on “political goals that could not win support through the democratic channels of our government.” Below are some points that Parker made regarding OSHA initiatives that we have been tracking:

• Heat Stress. Regarding OSHA’s efforts relating to heat stress, Parker was noncommittal regarding when we might see a proposed heat standard rule.
• Walkaround Letter. Parker denied that the purpose of the letter was to facilitate union organizing, maintaining that the agency’s focus is only on health and safety. Regarding a request by members of the business community to extend the public comment period for the proposed rule, Parker stated that the government shutdown combined with an extension would have “pretty grave consequences on getting this rule done.”
• COVID-19 Standard in Healthcare Settings. Parker would only say that the rule is under review at the Office of Information and Regulatory Affairs.
• Respirable Crystalline Silica Focused Inspection Initiative. Regarding OSHA’s recently announced initiative “to prioritize OSHA inspection activity in workplaces where workers are typically exposed to high levels of silica,” Parker stated that it will “not get off the ground” during a federal government shutdown.

Su Can Stay, Says GAO. In response to an inquiry from House Education and Workforce chair Virginia Foxx (R-NC), late last week the Government Accountable Office (GAO) issued a letter “regarding the legal authority governing Julie A. Su’s service as Acting Secretary of Labor of the U.S. Department of Labor (Labor), and whether any time limitations apply to her service.” There has been some confusion over whether, when stepping in for departed secretary of labor Marty Walsh, Su has been serving pursuant to the Federal Vacancies Reform Act (which places limitations on how long one can serve in an acting capacity) or a DOL succession statute (which does not have time limitations). The letter concludes, “As the Deputy Secretary of Labor, Ms. Su may serve as Acting Secretary under section 552 [the DOL succession statute] until a successor is appointed. The Vacancies Act’s time limitations do not apply to her service.”

FTC and NLRB Enter Into MOU. Late last week, the Federal Trade Commission (FTC) and National Labor Relations Board entered into a memorandum of understanding (MOU) to coordinate information sharing, training, investigations, and enforcement. The MOU states, “The Agencies share an interest in protecting workers who have been harmed or may be at risk of being harmed as a result of unfair methods of competition and unfair or deceptive acts or practices.”

Such methods, acts, or practices include collusive behavior; the use of business models designed to evade legal accountability, such as the misclassification of employees; illegal claims and disclosures about earnings and costs associated with work; the imposition of one-sided and restrictive contract provisions, such as noncompete and nondisclosure provisions; the extent and impact of labor market concentration; and the impact of algorithmic decision-making on workers.

The memorandum is similar to the one that FTC entered into with the NLRB in July 2022.

Suit Yourself. Sew it seams that style really does matter to most U.S. senators. Less than a week after Senate Majority Leader Chuck Schumer (D-NY) relaxed the dress code on the floor of the U.S. Senate, his effort was hemmed in via a resolution that passed by unanimous consent. The “Senate Dress Code Resolution” requires “that business attire be worn on the floor of the Senate, which for men shall include a coat, tie, and slacks or other long pants.” The resolution goes on to state that “[a]ny change to the Senate floor dress code” must be “made pursuant to a resolution agreed to by not less than two-thirds of the Members of the Senate.” Schumer’s casual dress code was hanging by a thread the moment it began, and it was only a matter of time before it shorts-circuited. Clearly, the plan to allow for casual dress wasn’t suited to the traditions of the U.S. Senate.