Congressional Review Act (CRA) May Have Been Incentive for United States Department of Labor to Finalize Independent Contractor Rule

From JDSupra, James Plunkett discusses Republicans in the United States House of Representatives introducing a Congressional Review Act (CRA) resolution to rescind an Occupational Safety and Health Administration’s (OSHA) regulation and comments that the CRA look-back has been a driving force in finalizing regulations including the new independent contractor rule. James writes:

OSHA Walkaround Regulation Update. This week, legislators and business groups took steps to push back on the Occupational Safety and Health Administration’s (OSHA) controversial walkaround regulation.

  • Legal Challenge Filed. A coalition of business groups filed a lawsuit challenging the regulation in the U.S. District Court for the Western District of Texas. The complaint alleges that OSHA exceeded its statutory authority in promulgating the rule and violated the APA because the agency did not adequately explain its expansion of existing regulations and failed to consider alternatives. The complaint also alleges that the regulation infringes on property owners’ rights to exclude third parties and is therefore an unconstitutional taking under the Fifth Amendment of the U.S. Constitution.
  • Congressional Review Act Resolution. Late last week, Republicans in the U.S. House of Representatives, led by Congresswoman Mary Miller (R-IL), introduced a Congressional Review Act (CRA) resolution to rescind the walkaround rule. The CRA allows Congress —with simple majority votes in each chamber—to rescind agency regulations. However, even if the resolution is approved in both the House and U.S. Senate (which is certainly possible, as some Democrats and Independents have been willing to join Republicans on other CRA resolutions during this Congress), President Biden is likely to veto the measure—like he did with the joint employer resolution. Even in the face of a presidential veto, the resolution is indicative of the growing controversy surrounding the rule.

CRA Clock Is Ticking. Speaking of the CRA, the statute is likely a significant reason why the administration has recently finalized a spate of regulations. This is because the CRA allows a new Congress to review “midnight regulations” that are finalized within sixty days of the adjournment of the prior Congress. Many regulatory wonks are predicting that regulations finalized after this week could fall within sixty days of adjournment of the current 118th Congress, therefore making them vulnerable to potential rescission by a Republican Congress and president in 2025. The administration obviously does want to give the 119th Congress—set to gavel in in January 2025—an opportunity to use the CRA to rescind aspects of President Biden’s regulatory agenda, so it is rushing to finalize rules sooner rather than later. This CRA look-back provision has undoubtedly been a driving force for the DOL’s recent finalization of its independent contractor rule, overtime rule, walkaround rule, and the Federal Trade Commission’s non-compete rule, among other regulations.

Source: Beltway Buzz – May 2024 #3 | Ogletree, Deakins, Nash, Smoak & Stewart, P.C. – JDSupra

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