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.
Welcome to the February edition of AFFT’s Monthly Federal Labor Policy Update – covering top-line developments in federal labor and employment policy. In true Groundhog Day fashion, Congress kicked the proverbial funding can down the road – again – sending a Continuing Resolution (CR) to President Biden extending the deadlines Congress has to pass two packages of appropriations bills to March 8 and March 22.
In late February, Senate Minority Leader Mitch McConnell (R-NV) announced he will not seek reelection as Senate Republican Leader, but will serve out the remainder of his Senate term until 2027. First elected as Republican Leader in 2006, McConnell is the longest-serving Senate Party Leader in American history. The race to succeed McConnell is on – current Republican Whip Senator John Thune (R-SD) announced he will run for the top spot while the third-ranking Senate Republican, Senator John Barrasso (R-WY), announced he would run for Republican Whip.
We’re closely watching a case from a federal judge in Texas that held the rule allowing Members of Congress to vote via proxy – utilized during COVID-19 to pass the Pregnant Workers Fairness Act (PWFA) – violated the Quorum Clause of the Constitution. Stressing this was a narrow decision with limited scope specific to the harm Texas experienced under PWFA, it is now enjoined in Texas. The case is expected to be appealed and will likely also lead to other similar lawsuits.
Let’s see what Congress can accomplish in the next few weeks before both chambers depart for a two-week recess and the Easter holiday the 22nd of March.
What’s Happening (or Not) in Congress
- On February 5, Senators John Hickenlooper (D-CO) and Mike Braun (R-IN), Chairman and Ranking Member of the Senate Committee on Health, Education, Labor, and Pensions (HELP) Subcommittee on Employment and Workplace Safety, sent a letter to Department of Labor (DOL) Acting Secretary Julie Su requesting information regarding DOL’s plans to support and train workers and employers on Artificial Intelligence (AI) implementation.
- On February 7, House Committee on Education and the Workforce (E&W) Chairwoman Virginia Foxx (R-NC) announced she will not seek another waiver to be Chair of the committee next Congress. House Republican Conference rules prevent Members of Congress from serving more than three consecutive terms as chair or ranking member of a committee. Representatives Tim Walberg (R-MI) and Burgess Owens (R-UT) announced they will seek the top spot at the committee.
- On February 16, Representative Eric Burlison (R-MO) introduced the Overtime Pay Flexibility Act (H.R. 7367), legislation to prevent DOL from finalizing, implementing, or enforcing its proposed overtime rule. As proposed, the rule would increase the salary threshold under which employees receive time-and-a-half pay for hours worked over 40 hours per week. Currently, the salary threshold under which an individual is generally eligible for overtime is $35,000 per year. The proposed rule would increase that threshold to $55,00 per year, with an automatic update to the amount every three years based on earnings data.
- On February 29, the House pulled a scheduled vote on the Bipartisan Workforce Pell Act (H.R. 6585) – legislation to expand grant opportunities to short-term Pell programs – under suspension of the House Rules. Voting on legislation under suspension of the rules limits debate and prevents amendments on the Floor; however, it also requires a two-thirds supermajority vote. It is largely assumed the legislation was pulled from a Floor vote because there was concern it would not have the required two-thirds support for passage.
Committee Action
- On February 14, the House E&W Committee Subcommittee on Workforce Protections held a hearing entitled, “Examining the Policies and Priorities of the Wage and Hour Division” with Administrator Jessica Looman as the sole witness. Issues raised by Republicans included the independent contractor rule, overtime rule, and Davis-Bacon.
- The list of witnesses and recording of the hearing are available here.
- On February 27, the Senate HELP Committee held an executive session (aka a markup) of three presidential nominees, including DOL Acting Secretary Su who was approved by the committee along party lines. Su now awaits a vote by the full Senate.
- On February 14, Senate HELP Ranking Member Bill Cassidy (R-LA) sent a letter to Chair Sanders (I-VT) requesting a hearing on Su’s renomination. Cassidy noted that it had been 339 days since Su assumed the role of Acting Secretary and 299 days since Su appeared before the HELP Committee.
Executive Branch
Department of Labor
- On February 9, DOL’s Occupational Safety and Health Administration (OSHA) sent its “walkaround rule” to the Office of Information and Regulatory Affairs (part of the Office of Management and Budget at the White House) for final review. When an agency is ready to finalize a rule, they send it to OIRA for one last review. Once OIRA finalizes its review, the rule is sent back to the agency to issue the final rule. Asproposed, the rule would allow employees to designate third party representative(s) of their choice to accompany OSHA during a workplace inspection. The third party representative(s) could be an individual affiliated with a union or community organization, even if that individual has no ties to the workplace being inspected.
- On February 9, a group of 11 Democratic Attorneys General petitioned OSHA for an Emergency Temporary Standard for “occupational heat exposure for farmworkers and construction workers, at minimum, beginning May 1, 2024.”
- On February 21, DOL’s Bureau of Labor Statistics (BLS) issued its annual report on major work stoppages (aka strikes and lockouts that involve 1,000 or more workers and last at least one shift during the work week). In 2023, major work stoppages hit a 23 year high with 33, the highest since there were 39 in 2000.
- On March 1, DOL’s Wage and Hour Division (WHD) sent its overtime rule to OIRA for final review (see above for more information on the rule).
National Labor Relations Board
- On February 7, a National Labor Relations Board (NLRB) Regional Director determined that college basketball players at Dartmouth University in New Hampshire are employees for purposes of the National Labor Relations Act, and directed an election for the basketball team to vote to determine whether to be represented by a union. Dartmouth is expected to appeal the decision to the full NLRB.
- On February 21, the NLRB issued a decision in Home Depot USA finding that Home Depot engaged in unfair labor practices by requiring an employee remove “BLM” (the acronym for “Black Lives Matter”) initialing on their work apron, citing a dress policy prohibiting “displaying [on an apron] causes or political messages unrelated to workplace matters.” The employee refused to remove the lettering and resigned. In its decision, the NLRB said that Home Depot failed to establish special circumstances that make the dress code rule necessary to maintain production or discipline.
- On February 23, a U.S. District Judge for the Eastern District of Texas stayed the effective date of the NLRB’s final joint employer rule (determining whether two or more employers are jointly responsible for a group of employees) until March 11. Initially scheduled to be effective February 26, the U.S. District Judge held a hearing on February 13 on a challenge to the rule and is expected to issue an opinion before the March 11 deadline.
Nominations
- On February 29, President Biden nominated former DOL Secretary Marty Walsh to serve on the U.S. Postal Service’s Board of Governors. This is not a full-time position and Walsh is currently Executive Director of the National Hockey League Players’ Association.
Other Federal Labor-Related Policy News
- On February 6, Service Employees International Union (SEIU) President Mary Kay Henry announced that after 14 years she will not seek reelection later this year.
- On February 15, University of Illinois School of Labor and Employment Relations and Cornell University’s School of Industrial and Labor Relations released their annual Labor Action Tracker for 2022. The report found work stoppages increased by about 9% and the number of workers involved in work stoppages increased by about 141%, primarily due to high-profile strikes.
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 February:
- Teachers Union Strike in Massachusetts Amid Statewide Revenue Deficits (Feb. 7)
- Several Minnesota Unions Authorize Strikes (Feb. 29)
We’ll report back in April with an update on whether Congress is able to drag the longer-term funding bills across the finish line, a recap of the State of the Union, and all-other labor happenings in the next few weeks before recess!