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Monthly Federal Labor Update

A national expert on issues related to the American workforce, Molly Conway delivers AFFT’s monthly federal update to keep you apprised of the latest in DC. If you’re a federal employee, you won’t want to miss this.

Happy New Year!  Below is the New Year edition of AFFT’s monthly Federal Labor Policy Newsletter – covering top-line developments in federal labor and employment policy.  In December, Congress passed the National Defense Authorization Act to provide funding for the U.S. military and other defense priorities, including a pay increase for service members, but failed to reach agreement on border security or aid to Ukraine and Israel.

The U.S. Senate returned for the Second Session of the 118th Congress on Monday, January 8, and the House of Representatives returned on Tuesday, January 9, leaving just a handful of legislative days to reach agreement on key federal appropriations bills.  We will closely watch as Congress races to come to a deal to avert a partial government shutdown next week.

What’s Happening (or Not!) in Congress

  • Looming Threat of Government Shutdown.  Congress has a very busy start to the new year.  In addition to continuing to negotiate a border security and foreign aid package, it will have until just January 19 to pass appropriations for military construction and the Departments of Veterans Affairs, Housing and Urban Development, Agriculture, and Energy.  Funding for the remaining agencies, including Labor and its related agencies, expires February 2.  While overall funding totals for Fiscal Year 2024 were agreed to by Speaker Mike Johnson and Senate Majority Leader Chuck Schumer, the devil is always in the details.  If Congress is unable to reach an agreement by the respective expiration dates, there will be a partial government shutdown. 
  • Presidential Nominations.  When transitioning to the Second Session of a Congress the Senate typically requires a unanimous consent agreement to “hold over” nominations from the First Session that have not yet received consideration by the Senate as a whole; otherwise the pending nominations are sent back to the President.  Once returned, the President has to choose whether to renominate those individuals to the vacant roles or choose new nominees.  Before leaving for the holidays, the Senate reached unanimous consent to hold over only a handful of nominations – sending more than 50 back to the President, including DOL Acting Secretary Julie Su (who set the record for the longest a Cabinet Secretary nominee has ever waited for a vote by the Senate).  On Monday, January 8, President Biden renominated Su to the top Labor post.    

Committee Action

  • On December 5, bipartisan leaders of the House Committee on Education and the Workforce introduced the Bipartisan Workforce Pell Act (H.R. 6585), legislation to create “Workforce Pell” (previously known as “Short-term Pell”) programs.  The original Pell Grant program was created in 1972 for undergraduate students from low income households enrolled in longer-term programs (at least 16 weeks).  Workforce Pell would expand grant opportunities to short-term programs (between eight and 15 weeks) that will lead to career advancement in high-demand fields.  This legislation was approved by the Committee on December 12 and now awaits a vote by the full House. 

    • The fact sheet is available here.
    • Text of the legislation and a list of cosponsors is available here.
  • On December 7, bipartisan leaders of the House Committee on Education and the Workforce also introduced A Stronger Workforce for America (H.R. 6655), legislation to update and reauthorize the public workforce system – with a heavy emphasis on skills development and building connections between employers and the workforce system. This legislation was approved by the Committee on December 12 and awaits consideration by another committee before moving to a vote by the full House. 

    • The fact sheet is available here.
    • Text of the legislation and a list of cosponsors is available here.
  • On December 12, in addition to approving the two above bills, the House Committee on Education and the Workforce also passed a resolution disapproving of the National Labor Relations Board’s Joint Employer Rule (see November’s update for more information) and the Small Business Before Bureaucrats Act (H.R. 3400), legislation to update the NLRB’s jurisdictional standards from the 1958 dollar amounts (from $50,000 for non-retail and $500,000 for retail businesses to $500,000 for non-retail and $5,000,000 for retail businesses).  Both bills passed on party-line, with no Democratic support.

    • Text of the resolution of disapproval for the Joint Employer rule is available here and the press release is available here.
    • Text of the Small Business Before Bureaucrats Act is available here and the press release is available here.
  • On December 13, the House Committee on Education and the Workforce Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, “Protecting Workers and Small Businesses from Biden’s Attack on Worker Free Choice and Economic Growth.”  Subcommittee Chairman Bob Good (R-VA) held the hearing to “shine a light on the Left’s assault on individual liberty and highlight legislation that promotes employee free choice, preserves the right to work as independent contractors, and protects entrepreneurs and small businesses.”

    • The list of witnesses and recording of the hearing are available here.
    • Chairman Good’s opening statement is available here and Ranking Member Mark DeSaulnier’s (D-CA) opening statement is available here.
  • On January 8, Senate Committee on Health, Education, Labor, and Pensions Ranking Member Bill Cassidy (R-LA) released a Minority Staff Report entitled, “The Biden Administration:  Politicizing National Labor Law to Help Their Union Bosses.”

    • The Minority Staff Report is available here.
    • Ranking Member Cassidy’s press release is available here.

Executive Branch Action

Department of Labor

  • On December 13, the Department of Labor (DOL) launched a revamped Worker Organizing Resource and Knowledge (WORK) Center website.  Initially published Labor Day 2022 under prior DOL Secretary Marty Walsh, the website is largely a collection of resources for workers on how to organize and unionize a workplace.

    • The website is available here.
  • On January 9, DOL announced its final rule regarding the employment classification of independent contractors.  The final rule rescinds the 2021 Trump Administration rule, and instead utilizes a six-factor analysis to determine whether a worker is an independent contractor or employee.  The rule is effective March 11, 2024.  House and Senate Republicans plan to introduce a Congressional Review Act Resolution of Disapproval to invalidate the rule and litigation from industry groups is expected as well.

    • The final rule, press release, and FAQs are available here.

Congressional Budget Office

  • Report on Increasing the Federal Minimum Wage.  On December 18, the Congressional Budget Office (CBO) issued a report on the budgetary and economic effects of raising the minimum wage to $17 per hour by 2029 as proposed in the Raise the Wage Act, introduced in July by Representative Bobby Scott (D-VA) in the House and Senator Bernie Sanders (I-VT) in the Senate.  CBO’s report finds that (if the bill became law) the budget deficit would increase by $46 billion due in part to higher prices for goods and services and increased spending for federal programs such as unemployment compensation and health care.  CBO also found that once the minimum wage reaches $17 per hour, the 8.9 million workers below that threshold and the 9.7 million just above the threshold would be directly affected by either a reduction in employment (0.7 million additional workers) or an increase in wages for those still employed, decreasing in the number of people in poverty by 0.4 million.
    • The CBO report is available here.
    • Text of the legislation is available here.

Rulemaking and Guidance

  • 2023 Fall Regulatory Agenda.  On December 6, the Biden Administration released its 2023 Fall Regulatory Agenda, listing forthcoming rulemakings and other regulatory and deregulatory actions.  Of note in the labor and employment space, DOL’s Wage and Hour Division is scheduled to release its Overtime Rule (see November’s update for more information) in April 2024 and was scheduled to release its Independent Contractor Rule (governing who is an employee or an independent contractor) in November 2023. 

    • For a list of all forthcoming regulations, the 2023 Fall Regulatory Agenda can be found here.
    • A list of all open regulations at the Department of Labor and their comment periods is available here
  • Apprenticeship Rule.  On December 14, DOL’s Employment and Training Administration released a proposed rule seeking to update and modernize the current regulations around the Registered Apprenticeship program.  Specifically, DOL is seeking to strengthen labor standards, quality, and worker protections; better define roles for the states and other stakeholders; expand performance and data requirements to improve accountability and transparency; and create a student-centric model of Registered Apprenticeship.  The comment period will close 60 days after the proposed rule is officially published on the Federal Register’s website.

    • The Wall Street Journal Editorial Board issued a scathing opinion of the proposed rule entitled, “Biden to Apprentices:  You’re Fired.”  The opening line states, “[w]ant a classic example of the administrative state gone wild?  Get a look at the Labor Department’s recently proposed 776-page rule that purports to clarify a two-page 1937 law regulating apprenticeship programs.”
    • A copy of the proposed rule is available here.
  • OSHA Emergency Responders Rule.  On December 21, DOL’s Occupational Safety and Health Administration (OSHA) announced a proposed rule to modernize the agency’s “Fire Brigades” standards.  Among other changes, the proposed rule will include “major changes for protective clothing and equipment and significant improvements in safety and health practices that the industry generally accepts as standard procedures.”  The comment period will close 90 days after the proposed rule is officially published on the Federal Register’s website.

    • The proposed rule is available here
  • Project-Labor Agreements Rule.  On December 22, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a final rule requiring federal agencies use project labor agreements (PLAs) for large-scale federal construction projects “where the total estimated cost to the Government is $35 million or more, unless an exception applies.”  According to DOL, a PLA is a “pre-hire collective bargaining agreement negotiated between construction unions and construction contractors that establishes the terms and conditions of employment for construction projects.”  This rule is effective January 22, 2024.

    • The final rule is available here.
  • New Election Procedures Rule.  On December 26, the National Labor Relations Board’s (NLRB) new Election Procedures Rule (“Representation-Case Procedures”) went into effectThis rule returns the NLRB’s representation election process to the 2014 standard to remove “unnecessary barriers to the fair and expeditious resolution of representation cases.”  This rule is commonly referred to by opponents as the “Ambush Election” or “Quickie Election” Rule.  On December 8, General Counsel Jennifer Abruzzo issued a Guidance Memorandum to NLRB personnel and external stakeholders regarding the changes going into effect. 

    • The final rule is available here.
    • The General Counsel’s Memorandum is available here.

State and Local Spotlight

In the absence of significant labor and employment lawmaking at the federal level due to a divided Congress, states are increasingly considering or enacting policy changes in this space.  Throughout each month, we provide state-specific updates on labor-related happenings on our Latest News page.  ICYMI in December: 

That’s it for now – we’ll be back later this month with what promises to be an exciting update on government funding (will we or won’t we shut down?  what will be promised in exchange for a funding deal?  will there be more leadership changes?).  We will also launch our explainer series, focusing on the alphabet soup of federal labor agencies including what they do, and – most importantly –  what their action (or inaction) means for you.  Stay tuned!