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May 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.

Welcome to the May edition of AFFT’s Monthly Federal Labor Policy Update – covering top-line developments in federal labor and employment policy.  

May was a much quieter month in the labor and employment regulatory space than April (phew!). We can expect the House Education and the Workforce Committee to continue their oversight of the Biden Administration and antisemitism on college campuses and in the workplace. Congress as a whole is working on government spending bills before the September 30 deadline; however, Congress will most likely end up passing a last-minute Continuing Resolution, punting any funding decisions until after the November elections. 

As anticipated, Representative Marjorie Taylor Greene (R-GA) forced a vote of no confidence in Speaker Mike Johnson (R-LA) – it was promptly rejected by Congress with only 43 Members voting in support. Democrats joined a majority of Republicans to block the motion. 

With summer officially(ish) here and Congress is in the home stretch to wrap things up before the election and lame-duck session (the period of time between a November election and the beginning of the new Congress in January). The House and Senate have nine weeks of session scheduled before the November elections.  That said, often House and Senate Leadership will give Members additional to time to spend campaigning in their states and districts in September. 

Election Events to Watch this Summer:  The first presidential general election debate is June 27 on CNN; the Republican National Convention begins July 15 in Milwaukee, Wisconsin; and the Democratic National Convention begins August 19 in Chicago, Illinois.

What’s Happening (or Not) in Congress

  • Senator Ed Markey (D-MA) introduced the Warehouse Worker Protection Act (S. 4260), legislation to amend various labor and employment laws including the National Labor Relations Act (NLRA) to establish a new unfair labor practice if an employer imposes a workplace productivity quota “that significantly discourages or prevents, or [is] intended to significantly discourage or prevent, an employee from exercising” their rights under the NLRA. The legislation also requires DOL’s Occupational Safety and Health Administration (OSHA) to issue a standard for workplace ergonomics. Fun Fact – the first successful use of the Congressional Review Act Resolution of Disapproval (CRA) (see March Update for a recap on the CRA) was in 2001 when Congress rescinded OSHA’s then ergonomic standard issued by the Clinton Administration. (May 2)
  • Ranking Member Cassidy introduced the Making All Fund Information Available Act – legislation to require labor unions seeking to unionize a workforce to be transparent about the solvency of its defined benefit pension plan before the union election is held. (May 14)
  • A bipartisan group of Senators introduced a CRA to invalidate the DOL Employee Benefits Security Administration’s final rule regarding who is an investment advice fiduciary.  (May 15) 
  • Senate Majority Leader Schumer, along with a bipartisan group of Senators, released an Artificial Intelligence Roadmap for policy in the Senate. This highly anticipated roadmap was many months in the making and identifies areas of bipartisan policy agreement for consideration in the Senate in the coming months and years. A summary is available here. (May 15)
  • Representative Mary Miller (R-IL) introduced a CRA to invalidate DOL OSHA’s final “worker walkaround rule” – permitting employees to designate non-employee, non-employer representative(s) to participate in OSHA site inspections. (May 16)
  • Representative Bob Good (R-VA) introduced the Protecting Student Athlete’s Economic Freedom Act – legislation to prohibit a student athlete from being considered an employee of the school, conference, or association by the National Labor Relations Board (NLRB) for purposes of unionization. (May 23)
  • House E&W Chairwoman Foxx introduced the Union Members Right to Know Act (H.R. 8573), legislation to require unions to inform their members of “their free speech rights and the right not to pay dues or fees to the union based on religious beliefs and practices for nonrepresentational activity.” (May 28)
  • Senate HELP Ranking Member Bill Cassidy (R-LA) released a report entitled, “How Biden’s Labor Agenda Puts Politics Over People: Weaponizing the Federal Government to Benefit Political Backers at the Expense of American Workers.”  The report explores the labor-related regulations issued by the Biden Administration, how those regulations impact workers and business, and the lack of this administration’s oversight of labor unions. (May 29)

Committee Action

  • The House Committee on Education and the Workforce (House E&W) held an oversight hearing entitled, “Examining the Policies and Priorities of the Department of Labor” with of Acting Secretary Su serving as the sole witness. Much of the questioning from the minority centered around the recently finalized rules, funding priorities, and Acting Secretary Su’s tenure as Acting Secretary.  (May 1)
    • A recording of the hearing is available here.
    • The majority’s opening statement is available here and the minority’s opening statement is available here.
  • House E&W Democrats introduced the “Equal Remedies Act,” legislation to allow workers to receive full compensation when their employers are found liable for employment discrimination. (May 8)
  • House E&W Chairwoman Virginia Foxx (R-NC) released a committee staff report detailing the NLRB’s “misconduct and procedural irregularities related to the agency’s administration of mail ballot elections.” (May 9)
  • The Senate Committee on the Judiciary advanced the Protecting Older Americans Act (S. 1979) – legislation that would “ban forced arbitration in cases of age discrimination” and enable those who believe they’ve faced age discrimination to choose to bring a case in court if they would prefer.  The legislation passed the committee with the support of four Republicans and now awaits consideration by the full Senate. (May 16)
  • The House E&W Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, “Big Labor Lies:  Exposing Union Tactics to Undermine Free and Fair Elections” – highlighting the tactics used by unions in the workplace, including salting, unionization campaigns, and so-called neutrality agreements. You can read more about the hearing here. (May 22)
    • A recording of the hearing is available here.
    • The list of witnesses and majority’s opening statement are available here and the minority’s opening statement is available here.
  • The Senate Committee on Health, Education, Labor, and Pensions (Senate HELP) Subcommittee on Employment and Workplace Safety held a hearing entitled, “Digging Deeper for Health and Safety: Examining New Standards and Practices in Mining.” (May 22)
    • A recording of the hearing and list of witnesses are available here.

Executive Branch

Equal Employment Opportunity Commission

  • Eighteen state attorneys general filed a lawsuit against EEOC regarding its final guidance on harassment in the workplace (for more information on the guidance, see the April Update). (May 13)

Department of Labor

  • The OSHA Advisory Committee on Construction Safety and Health (ACCSH) unanimously recommended OSHA move forward with publishing a proposed rule regarding heat exposure in indoor and outdoor workplaces. There is not a known date by which the proposed rule will be released. (May 8)
  • In accordance with October’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, DOL issued, “Artificial Intelligence and Worker Well-being: Principles for Developers and Employers” – a set of principles intended to serve as a guiding framework for businesses developing and deploying AI in the workplace. (May 16)
  • OSHA released its final Hazard Communication Standard Final Rule regarding exposure to hazardous chemicals in the workplace, including the quality and amount of information on labels. (May 20)
  • OSHA’s final “worker walkaround rule” – permitting employees to designate non-employee, non-employer representative(s) to participate in OSHA site inspections – went into effect on May 31. (May 31)

White House

  • President Biden vetoed a CRA to overturn the NLRB’s Joint Employer rule (see the November update for more background).  The CRA passed the House in January and the Senate in April. (May 3)
  • President Biden nominated Lauren McFerran to serve as Chair of the NLRB and Joshua Ditelberg to serve as a Republican Member of the NLRB.  If the nominees are confirmed this Congress, the NLRB will remain Democratically-controlled until the end of August 2026, regardless of who wins the presidential election in November.  Members of the NLRB may only be removed “for cause” – meaning they cannot be removed from their positions solely because of a change in political leadership and serve set five-year terms. (May 23) 

Other Labor-Related News

  • April Verrett was elected as the new president of the Service Employees International Union (SEIU), succeeding Mary Kay Henry who served in that role for 14 years. Prior to being elected president, Verrett served as the Secretary-Treasurer of SEIU and president of California’s largest local union (SEIU 2015).  Verrett has stated she plans to grow SEIU’s ranks by a million members over the next decade. (May 22)
  • ICYMI – the Institute for the American Worker (I4AW) released a report entitled, “Battle of the 7s” highlighting the incongruity between the NLRB’s interpretation of Section 7 of the National Labor Relations Act versus EEOC’s interpretation of Title VII of the Civil Rights Act.   I4AW also released a coordinating Wall Street Journal Opinion piece entitled, “The NLRB Harassment Carve-Out.” (May 30)

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 May: 

That’s it for May!  We’ll be back in June when only six weeks of work will remain for Congress before the presidential election. We’ll of course keep you apprised of any happenings in the federal labor and employment space as they arise.