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Congress Is Back (Beltway Buzz, September 9, 2022) – Employee Rights/ Labour Relations


The Beltway Buzz is a weekly update summarizing labor and
employment news from inside the Beltway and clarifying how
what’s happening in Washington, D.C. could impact your

Congress Is Back. Summer break is over, and
like the many children who have recently returned to school, our
congressional lawmakers returned to Washington, D.C., this week to
kick off a four-week stint before they leave to campaign ahead of
the November elections. Democrats in the U.S. House of
Representatives and U.S. Senate hope to register some last-minute
legislative victories during this period and gather momentum for
the campaign trail, recognizing that unified Democratic control of
Congress might not carry over into 2023. During the next few weeks,
Congress will likely focus on judicial branch confirmations,
federal government funding (a likely continuing resolution will
extend the deadline to sometime in December), military spending,
and prescription drug pricing, among other issues.

Senate to Vote on Respect for Marriage Act? In
addition to the aforementioned priorities, Senate Democrats are
moving closer to a floor vote on the Respect for Marriage Act (H.R. 8404), which
would, among other things, codify protections for same-sex marriage
rights. The House passed the bill in July 2022 by a vote of
267–157, with 47 Republicans voting in favor of it.
Proponents of the legislation need ten Republican senators to
support their effort to defeat the legislative filibuster. If the
act does not pass during this session of Congress, it will have to
be reintroduced in the 118th Congress, and its proponents will have
to start the legislative process from scratch. The Buzz
will be monitoring the process as it unfolds.

NLRB Proposes New Joint-Employer Rule. On
September 7, 2022, the National Labor Relations Board (NLRB) issued
a notice of proposed rulemaking (NPRM) entitled “Standard for Determining Joint-Employer
.” The proposal is the latest salvo in the nearly
decade-long policy battle over the test for determining when
multiple employers are “joint employers” of certain
employees. In this latest effort, the Board proposes rescinding the
2020 joint employer rule and replacing it with
a standard—very similar to 2015’s Browning-Ferris
Industries (BFI)
test—that would find joint employment
“with evidence of indirect and reserved forms of control, so
long as those forms of control bear on employees’ essential
terms and conditions of employment.” Mark Kisicki has the details.

Members John F. Ring and Marvin E. Kaplan dissented from the
majority’s decision to engage in rulemaking, arguing that there
was “no valid justification” for overturning the 2020
rule, particularly since it had not been applied in a single case.
Their dissent also criticized the proposed rule for its lack of
clear guidance, which could create uncertainty for the regulated
community. Substantively, Ring and Kaplan argued that the proposed
rule “would not merely return the Board to the BFI
standard but would implement a standard considerably more extreme
than BFI” because it would “make[] a
never-exercised contractual reservation of right to control, or
indirect control of or influence over a single term or condition of
employment deemed ‘essential,’ determinative of
joint-employer status.” (Emphasis in original.) Comments on
the proposed rule are due by November 7, 2022, and reply comments
are due by November 21, 2022.

NLRB Restricts Workplace Dress Codes. Speaking
of the NLRB, last week the Board issued a 3–2 decision that
restricts employers’ ability to enforce workplace dress codes.
The case involved an area of a car manufacturing facility in which
employees were required to wear black company-branded shirts, as
well as black cotton pants with no buttons, rivets, or exposed
zippers. The purpose of the uniform was to prevent damage to the
cars during production and to help distinguish among different
groups of employees. While the employer permitted employees to
display union insignias on stickers worn on their shirts, it did
not allow employees to wear union shirts.

The Board ruled that this practice was unlawful, holding that
“when an employer interferes in any way with its
employees’ right to display union insignia, the employer must
prove special circumstances that justify its interference.”
(Emphasis in original.) While dissenting members Ring and Kaplan
agreed that “displaying union insignia in the workplace is an
important way employees exercise their rights under Section 7 of
the National Labor Relations Act,” they argued that the
majority decision “effectively nullifies the legitimate
interests served by employer dress codes by requiring that
employees be permitted to disregard the dress code whenever they
wish to substitute an item of union apparel, unless special
circumstances are shown.” The dissent continued, “In
other words, an employer’s right to maintain a dress code and
insist on compliance with it is now the exception, not the
rule—and even the exception may prove illusory.”

RIP, Queen Elizabeth. Her Majesty Queen
Elizabeth II died on September 8, 2022, at the age of ninety-six.
Although much will be written about Queen Elizabeth and her seventy
years of service as Britain’s longest-reigning monarch, at the
Buzz, we remember her address to a joint meeting of
Congress on May 16, 1991. The visit was historic for several
reasons. First, Queen Elizabeth was the first British monarch to
address a joint meeting of Congress. Second, the House created an
exception to its long-standing prohibition on the wearing of hats
on the floor—in place since 1837—to accommodate the
Queen’s stylish titfer. Finally, Queen Elizabeth’s address
is remembered for its poignant words, which are still relevant

The concept, so simply described by Abraham Lincoln as
“government by the people, of the people, for the
people,” is fundamental to our two nations. Your Congress and
our Parliament are the twin pillars of our civilizations and the
chief among the many treasures that we have inherited from our

We, like you, are staunch believers in the freedom of the
individual and the rule of a fair and just law. These principles
are shared with our European partners and with the wider Atlantic
community. They are the bedrock of the Western world.

Some people believe that power grows from the barrel of a gun.
So it can. But history shows that it never grows well nor for very
long. Force, in the end, is sterile. We have gone a better way. Our
societies rest on mutual agreement, on contract and on consensus. A
significant part of your social contract is written down in your
Constitution. Ours rests on custom and will. The spirit behind
both, however, is precisely the same. It is the spirit of

The content of this article is intended to provide a general
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about your specific circumstances.


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