Campaign Trail Update. With roughly two months to go to Election Day, Vice President Kamala Harris and her running mate, Minnesota Governor Tim Walz, spent Labor Day weekend courting the support of labor unions. Harris and Walz attended rallies at union halls, and on her social media pages, Harris wrote, “When I am President, we will pass the PRO Act and end union-busting once and for all.” Of course, Harris understands that it takes three to tango in Washington, D.C. If she wins the White House, Harris will also need her fellow Democrats to win majorities in the U.S. Senate and U.S. House of Representatives to have any hope of passing the Protecting the Right to Organize (PRO) Act. Further, even if Democrats win the Senate, they will likely have to jettison the legislative filibuster to pass the PRO Act. (Recall that Senators Manchin (D-WV) and Sinema (D-AZ) were instrumental in keeping the filibuster intact, and they are not running for reelection.)

OSHA Publishes Heat-Related Safety Standard Proposal in Federal Register. After releasing its heat injury and illness prevention standard notice of proposed rulemaking in early July 2024, the Occupational Safety and Health Administration (OSHA) has finally managed to officially publish the proposal in the Federal Register. The proposal clocks in at a tidy 376 single-spaced, triple-columned pages (the unofficial proposal, announced in July, which is double-spaced and not in triple columns, was more than 1,000 pages). The high page count is indicative of the proposal’s complexity and sweeping scope.

As a reminder, OSHA’s proposal establishes an “initial heat trigger” of 80°F, at which point employers must provide drinking water and break areas and a “high heat trigger” of 90°F, requiring employers to monitor for signs of heat illness and provide mandatory paid fifteen-minute breaks every two hours. Employers would also be required to develop and implement a specific heat injury and illness prevention plan (HIIPP).

The publication of the proposal in the Federal Register kicks off the public comment period, which will remain open through December 30, 2024. The timing of the proposal, coming so late in President Biden’s term, means that its fate will likely hinge on the results of the November elections. If Vice President Harris wins, her administration will likely move forward with the proposal, though a final rule probably won’t be published until at least late 2025 or 2026. A Trump administration, on the other hand, is likely to put the proposal on ice, at a minimum, or otherwise withdraw it altogether.

“Parole in Place” Update. Last week, the Buzz discussed the U.S. District Court for the Eastern District of Texas’s fourteen-day administrative stay of the U.S. Department of Homeland Security (DHS) “parole in place” process. This week, in response to the government’s request to lift the stay, which was originally scheduled to expire on September 9, 2024, the court extended the stay an additional fourteen days to September 23, 2024. At the same time, the court reiterated that the agency is “temporarily restrained and enjoined from issuing parole under the challenged rule … but not from receiving and reviewing applications for that relief under the rule.” Further, due to the “rigor of [the government’s] recent 60-page filing” the court determined “that a hearing on the facts and the law can be scheduled on an even more accelerated schedule than previously anticipated.” The court set a hearing date for September 18, 2024.

Happy 50th, ERISA! This week, we celebrate the fiftieth anniversary of the enactment of the Employee Retirement Income Security Act of 1974 (ERISA). ERISA establishes federal guardrails to protect plan participants and beneficiaries in employee benefit plans. The genesis of the law goes back to the 1950s and 1960s when the number and size of employer pension plans skyrocketed. This inevitably led to instances in which employers and unions misappropriated the assets of these funds. Then, in 1963, the Studebaker automobile manufacturer went under and could not afford to pay out all pension benefits to employees. These instances provided the U.S. Congress with the motivation to enact legislation to regulate pension plans. Ultimately, ERISA is a combination of bills championed in the House by John Herman Dent (D-PA), and in the Senate by John L. McClellan (D-AR) and Jacob K. Javits (R-NY). President Gerald Ford signed the act into law on Labor Day, September 2, 1974.