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 March edition of AFFT’s Monthly Federal Labor Policy Update – covering top-line developments in federal labor and employment policy.
In early March, President Biden addressed a joint session of Congress for his final State of the Union of this presidential term. The President addressed jobs, the economy, and unions (of course!), but was somewhat surprisingly light on labor policy.
Groundhog Day has ended – Congress finally passed the remaining Fiscal Year 2024 appropriations bills, funding the government through September 30, 2024. The appropriations bills passed on the eve of Congress leaving for a two-week recess. The passage of this package of bills in the House was not without drama – it passed with more Democratic support than Republican support. Rep. Marjorie Taylor Greene (R-GA) subsequently filed a motion to remove Rep. Mike Johnson (R-LA) from his role as House Speaker. It remains to be seen what will happen with this motion when the House returns from its recess. In the Senate, the legislation passed 74 to 24.
Finally, we expect multiple regulations to be finalized by the Biden Administration in the next two months – in advance of the forthcoming Congressional Review Act (CRA) deadline. In short, the CRA requires that when a rule is finalized, it be submitted to Congress – providing the House 60 legislative days and the Senate 60 session days (there’s a distinction here, but it’s very technical) of review with the opportunity to consider a “resolution of disapproval” to invalidate a rule. If the House or Senate adjourns sine die (signaling the end of a session of Congress) before the 60 days are completed, then the 60 day periods restart upon the 15th day of the new session of Congress. Typically, the 60 legislative or session day calculation lands in April or May of the last year of that session of Congress (the calendar can always change – and often does in an election year – with the chambers shortening the days of work to allow Members more time to campaign in their states and districts).
The benefit of a successful CRA resolution of disapproval is that once the President signs the resolution, the rule “shall be treated as though such rule had never taken effect” – meaning a new administration of the opposing party would not have to go through the full notice and comment period regulatory process to rescind the rule. Further, it prohibits any future administration from issuing any rule that is “substantially the same” – a very powerful tool especially in the labor space where the same rules are dusted off, updated, and reissued with each new party occupying the White House. With the possibility of a new president of a different party, the race is on to finalize rules before that deadline.
The Senate returns on April 8 and the House returns on April 9. Stay tuned!
What’s Happening (or Not) in Congress
- House Committee on Oversight and Accountability Chairman Comer (R-KY) sent an oversight letter to the Equal Employment Opportunity Commission (EEOC) requesting information regarding EEOC’s enforcement of anti-discrimination laws based on race or color – specifically with respect to corporate diversity initiatives. (March 1)
- Senate Health, Education, Labor, and Pensions (HELP) Committee Ranking Member Cassidy (R-LA) released a report “detailing the devastating impacts of President Biden’s failed policies on American families.” The report discusses the decrease in real wages, increase in inflation, cost of homeownership and interest rates, among other concerns. (March 4)
- Senator Ed Markey’s (D-MA) office became the first Senate office to unionize – with the Senator formally voluntarily recognizing the unit and officially kicking off the collective bargaining agreement negotiations with the Congressional Workers Union. (March 11)
- Senate HELP Committee Chair Sanders (I-VT) and Rep. Takano (D-CA) introduced legislation that would enact a 32-hour workweek without loss in pay for workers. Sen. Sanders cites the need for workers to share in the “massive increase in productivity driven by artificial intelligence, automation, and new technology.” The press release and summary are available here. (March 14)
- House Committee on Education and the Workforce (E&W) Chairwoman Foxx (R-NC) sent letters to the presidents of 12 unions highlighting examples of recent corruption and requesting information about each union’s efforts to “protect members from fraud, corruption, and improper accounting.” (March 15)
- The Democratic Women’s Caucus unveiled, “An Executive Action Agenda That Works for Women” – outlining a set of requests for the Biden Administration to use their executive power to benefit women in a variety of policy areas. (March 18)
- Senate HELP Chair Bernie Sanders (I-VT) and Rep. Magaziner (D-RI) introduced legislation that would guarantee paid vacation for American workers – amounting to two weeks of paid annual leave for every full-time employee, in addition to paid sick or family and medical leave. The press release and summary are available here. (March 20)
- House E&W Subcommittee on Higher Education and Workforce Development Chair Owens (R-UT) introduced the Start Applying Labor Transparency (SALT) Act. The SALT Act would require unions to disclose any payments, loans, agreements, or arrangements made to an employee or group of employees for the purpose of influencing the organizational or collective bargaining rights of employees. It would also require any such employee(s) working with the union to disclose the arrangement as well. (March 21)
- House E&W Chairwoman Foxx (R-NC) sent a follow-up letter to DOL regarding dog bite incidents involving President Biden’s dogs and requesting information about workplace safety protocols at the White House. (March 25)
Committee Action
- The House E&W Subcommittees on Health, Employment, Labor, and Pensions and Higher Education and Workforce Development held a joint hearing entitled, “Safeguarding Student-Athletes from NLRB Misclassification” – addressing the recent decision by a National Labor Relations Board (NLRB) regional director that basketball players at Dartmouth College are employees and subsequent vote of those players to unionize. (March 12)
- The list of witnesses and recording of the hearing are available here.
- The Senate HELP Committee held a hearing on Sen. Sanders’ 32-hour workweek legislation entitled, “Workers Should Benefit from New Technology and Increased Productivity: The Need for a 32-hour Work Week with No Loss in Pay.” (March 14)
- The list of witnesses and recording of the hearing are available here.
- The House E&W Committee held a markup of four bills, one of which is the CRA resolution of disapproval (see above) to invalidate DOL’s new rule regarding the employment classification of independent contractors. The independent contractor rule went into effect on March 11 and largely narrows the universe of who can be considered an independent contractor. The legislation now awaits a vote by the full House. (March 21)
Executive Branch
White House
- President Biden issued an Executive Order (EO) entitled, “Scaling and Expanding the Use of Registered Apprenticeships in Industries and the Federal Government and Promoting Labor-Management Forums.” The EO requires a report regarding how to expand Registered Apprenticeship opportunities, encourages federal agencies to give preference to projects that utilize Registered Apprenticeships, and reestablishes “labor-management forums” for federal managers, employees, and union representatives to discuss labor relations and productivity in the federal government. (March 6)
- The White House released its annual budget request for 2025 – requesting an additional $318 million for DOL over Fiscal Year 2023, significantly less than the $1.5 billion it sought last March for the 2024 budget. Similarly, while the request for the NLRB is an increase over actual funding levels, it represents a $56 million decrease over its request last March.
Department of Labor
- DOL’s Occupational Safety and Health Administration (OSHA) issued its final “walkaround rule” – permitting employees to designate non-employee, non-employer representative(s) to participate in OSHA site inspections. As anticipated, the final rule is little changed from the proposed rule and does not require the designee(s) to be safety or health experts. The rule is effective May 31 and legal challenges from the business community are expected.
National Labor Relations Board
- Just days before the NLRB’s final joint employer rule was set to go into effect, a U.S. District Judge for the Eastern District of Texas vacated the rule stating it “would treat virtually every entity that contracts for labor as a joint employer because virtually every contract for third-party labor has terms that impact, at least indirectly … essential terms and conditions of employment.” For now, the traditional joint employer standard remains in effect, requiring direct and immediate control over workers’ terms and conditions of employment. The NLRB is considering next steps, including whether to appeal the decision to the Fifth Circuit Court of Appeals. (March 9)
Federal Trade Commission
- FTC Commissioner Alvaro Bedoya recently gave remarks at a conference stating that the misclassification of employees as independent contractors is also a competition law matter specifically with respect to restraints on job activities, “I think the next step in confronting misclassification is making sure that we use every tool in our toolbox to fight it – including competition law.” (February 2)
Nominations
- Loren Sweatt was confirmed by a voice vote of the Senate to serve as one of three Members of the National Mediation Board (NMB). The NMB is an independent federal agency facilitating labor relations (including pay, working conditions, and work rules) between employees and employers within the airline and railroad industries, including union elections and labor disputes.
Other Federal Labor-Related Policy News
- A federal judge in Texas 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.
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 March:
That’s it for March – we’ll be back in April with an update on what Congress accomplishes now that the spending battle is over … for the next few months, at least!