DC Updates Biden’s State of the Union, SCOTUS Pick and Arbitration Exception

I didn’t get a Harrumph Outta this guy. President Joe Biden delivered his first State of the Union address this week. While it was easy to miss in the speech, workplace policy watchers may have noticed that the president briefly pressed for passage of the Paycheck Fairness Act, the Equality Act, paid holidays, an increase in the minimum wage, the Protection of the Right to Organize (PRO) Act and immigration reform. With so many important issues swirling around Washington, D.C., as well as the looming midterm elections, these bills remain long-term legislative projects, though they give some indication of the administration’s priorities.

POTUS announces the choice of SCOTUS. Late last week, President Biden nominated Ketanji Brown Jackson, currently a Justice of the United States Court of Appeals for the District of Columbia Circuit, to fill Justice Stephen Breyer’s seat on the Supreme Court of United States at the end of this term. Although confirmation hearings for Supreme Court nominees are always big political theater, many expect Justice Jackson to receive confirmation. (Several Republican senators voted to confirm his nomination to his current position.) that Jackson’s confirmation hearings would begin on March 21, 2022 and end on March 24, 2022.

As for Judge Jackson’s court filing on labor and employment issues, she wrote a 2020 opinion invalidating certain provisions of the National Labor Relations Board’s 2019 Election Rules Amendments. Judge Jackson held that these provisions did not concern the internal organization, procedure or practice of the Commission and therefore should have been issued in accordance with the process for developing the notice and comment rules.

Arbitration exception in effect. On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. the date of promulgation of this law. »

The bill reforming the immigration of highly qualified persons is reintroduced. This week, a bipartisan group of senators reintroduced the H-1B and L-1 Visa Reform Act of 2022, which aims to “reduce fraud and abuse, provide protections for American workers and visa holders, and demand more transparency in the hiring of foreign workers.” Versions of the bill have been introduced in the U.S. Congress over the past fifteen years. The bill would make the following changes to immigration law:

  • Requiring certain job search requirements for all employers before filing working conditions claims
  • Prohibit employers from replacing “an American worker with 1 or more H-1B nonimmigrants”
  • Prohibit the placement or outsourcing of H-1B nonimmigrants to another employer, in the absence of a waiver
  • Prohibit employers with fifty or more employees from hiring H-1B or L-1 visa holders if more than half of their workforce are H-1B or L-1 visa holders
  • Establish an H-1B award process that prioritizes applicants’ skills and education, as well as the salaries they will earn and the applicant employer’s immigration compliance record
  • Amend the definition of “specialty occupation” to require “obtaining a bachelor’s degree or higher in the specific specialty directly related to the occupation”
  • Ban “B-1 visas instead of H-1B visas”

In addition to lead writers Senators Chuck Grassley (R-IA) and Dick Durbin (D-IL), original co-sponsors include Senators Tommy Tuberville (R-AL) and Bernie Sanders (I-VT). Immigration policy certainly creates some unusual alliances.

The House vote on the anti-discrimination bill fails. A bill prohibiting employers and other entities from discriminating against individuals based on hair texture or hairstyle failed to pass the U.S. House of Representatives this week. The “Creating a Respectful and Open World for Natural Hair of 2021” or the “CROWN Act of 2021” (HR 2116) contains the following language applicable to the workplace:

It will be an illegal employment practice for an employer, placement agency, labor organization, … not to hire or fire an individual, or otherwise discriminate against an individual, based on the texture or hairstyle of his hair, if that hair texture or hairstyle is generally associated with a particular race or national origin (including a hairstyle in which the hair is tightly coiled or tightly curled, locs, cornrows, twists, braids, Bantu knots and afros ).

The vote proceeded via suspension of the rules process, which allows expedited review of proposed legislation, but also requires a two-thirds supermajority of voters to pass. The final vote tally was 235 to 188 (fifteen Republicans voted “yes”), suggesting the bill will pass if supporters reintroduce it in due order (e.g., majority vote) .

The legislation would restore the employee retention tax credit. Bipartisan bills introduced in both the U.S. Senate and U.S. House of Representatives would reinstate the COVID-19 Employee Retention Tax Credit (ERTC) for all of 2021. Established by the CARES Act (Coronavirus Aid, Relief, and Economic Security) in 2020, the ERTC was due to expire on January 1, 2022, allowing employers to receive tax credits for eligible wages paid throughout 2021. However, the law on the Investment and Employment in Infrastructure, signed into law on November 15, 2021, retroactively shortened the period for eligible wages paid after September 30, 2021. The Employee Retention Tax Credit Restoration Act (S. 3625) would allow covered employers to receive an employment tax credit for eligible wages and health plan expenses paid for all of 2021.

SOTU registers. This week, President Biden delivered his first State of the Union (SOTU) address. Required by Article II, Section 3, Clause 1 of the United States Constitution (the President “shall from time to time give information to Congress respecting the state of the Union…”) the content, the timing and manner of addressing have evolved considerably over the years. For example:

  • President George Washington delivered the first State of the Union address in 1790. At just over 1,000 words (about four pages), it holds the record for the shortest State of the Union address. .
  • Beginning with President Thomas Jefferson in 1801, presidents delivered the annual message in writing because giving a speech was considered too monarchical. This practice ended in 1913 when President Woodrow Wilson delivered an address in person to Congress. Most presidents have followed suit.
  • The record for the longest State of the Union address belongs to President Bill Clinton. His seventh and final speech, given in 2000, lasted about ninety minutes. President Jimmy Carter’s 1981 message was nearly 34,000 words (about 136 pages). Fortunately, President Carter presented the message only in writing.
  • President Franklin D. Roosevelt gave twelve annual addresses to Congress, the most of any president.
  • Presidents William Henry Harrison (died thirty-one days after his inauguration) and James A. Garfield (assassinated six months into his term) presented no addresses.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.National Law Review, Volume XII, Number 63

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