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

The second half of June packed quite the punch—we saw a landmark Supreme Court decision changing federal agency authority to interpret statutes and write regulations, another decision clarifying when a federal agency rulemaking can be challenged in court, the President of the Teamsters Union agreeing to speak at the Republican National Convention, and the first presidential debate and its fallout. What a whirlwind!

First, the Supreme Court finished out their 2023 October Term with a bang – issuing decisions in Loper Bright and Corner Post just days apart. 

In Loper Bright, the Court decisively overruled forty years of deference provided to federal agencies under the Administrative Procedure Act (APA) when writing regulations (this deference was known as “Chevron deference”). The APA is the statute that governs the process by which federal agencies engage in rulemaking. The Court instead held that courts must independently decide whether a federal agency has acted within its statutory authority and courts cannot defer to the federal agency statutory interpretation just because the underlying statute is ambiguous. Following that decision, Senate Health, Education, Labor, and Pensions (HELP) Committee Ranking Member Bill Cassidy (R-LA) sent letters to the heads of the federal agencies under the HELP Committee’s jurisdiction requesting information on how their rulemaking will comply with Loper Bright.

Next is the decision in Corner Post where the Court held that when challenging a regulation under the APA, the six-year statute of limitations begins when the party is injured by the regulation – not when the regulation is finalized. For example, in that case, the Plaintiff came into existence in 2018, more than six years after a 2011 regulation was promulgated. The Court said the statute of limitations had not yet run for the Plaintiff and it could challenge the rule because it was not injured in 2011. This means that, coupled with the above decision in Loper Bright, we can expect to see a lot of litigation challenging longstanding regulations in the coming years – many of which will be in the labor space as labor statutes are older and quite ambiguous. 

Last, but certainly not least, International Brotherhood of the Teamsters President Sean O’Brien accepted President Trump’s invitation to speak at the Republican National Convention – marking the first time in history a Teamsters President will address the RNC. The Teamsters Union is America’s largest, most occupationally diverse union. O’Brien’s acceptance of the invitation has sparked rumors that the Teamsters might endorse President Trump instead of President Biden in this ever-hot presidential race.   

Summer is here and Congress is in the home stretch to reach federal funding agreements and wrap things up before the election. The House and Senate have six weeks of session scheduled before the November election, and that’s not accounting for any decisions by House and Senate Leadership to give Members additional to time to campaign in their states and districts in September. 

Finally, here are the election events to watch for this summer: Who will President Trump choose as his Vice President?  Will President Biden stay in the race? If not, who will replace him as the Democratic nominee?  Will the Teamsters endorse President Trump or a Democratic Nominee?

We will have answers to both questions by the end of the Republican National Convention which begins July 15 in Milwaukee, Wisconsin and the Democratic National Convention which begins August 19 in Chicago, Illinois.

What’s Happening (or Not) in Congress

  • House Education and the Workforce (House E&W) Chairwoman Foxx sent a letter to the EEOC requesting the agency allow for public notice and comment before it finalizes forthcoming joint guidance with the NLRB on workplace speech and conduct. (June 4)
  • HELP Ranking Member Cassidy released a request for information from stakeholders on portable benefits for independent workers – specifically, “seeking information on ways to remove federal legal and regulatory barriers to portable benefits for independent workers while protecting their flexibility and freedom to earn a living as they best see fit.” The relatively-short window to submit information closed on June 26. (June 5)
  • House E&W Ranking Member Scott (D-VA), Ranking Member Nadler (D-NY) of the House Judiciary Committee, and Sen. Patty Murray (D-WA) reintroduced the Restoring Justice for Workers Act – legislation seeking to end forced arbitration clauses in the workplace. (June 11)   
  • HELP Ranking Member Cassidy and Rep. Michael Cloud (R-TX) introduced the Dismantle DEI Act – legislation that would “eliminate all federal diversity, equity, and inclusion (DEI) programs and funding for federal agencies, contractors, organizations, and educational accreditation agencies that receive federal funding and maintain DEI programs.” (June 13)
  • HELP Ranking Member Cassidy sent a letter to DOL requesting it provide additional support to the states to assist them with combatting fraud in the Unemployment Insurance (UI) program, including by modifying DOL’s “outdated and burdensome guidance.” The UI program is a federal-state partnership and is often the subject of attention from Congress and DOL’s Inspector General due to fraud in the program. (June 21)

Committee Action

  • The House E&W Committee led five additional House Committee Chairs in sending letters to 10 colleges – Barnard, Columbia, UC Berkeley, UCLA, Harvard, MIT, Northwestern, Penn, Rutgers, and Cornell – as part of a Congress-wide investigation into antisemitism on college campuses. (June 3) 
  • The House E&W Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, “National Labor Relations Board (NLRB) Overreach: Trampling on Workers’ Rights and Fostering Unfairness” – covering labor-related issues such as employee free choice, union election decertification, independent contractor classification, and antisemitic statements and harassment by unions. (June 12)
    • The minority’s opening statement is available here.
  • The Senate HELP Committee held a hearing on the Workforce Innovation and Opportunity Act (WIOA) – the federal workforce development law – entitled, “WIOA:  Supporting Efforts to Meet the Needs of Youth, Workers, and Employers.”  Shortly after the hearing, the HELP Committee released a discussion draft of Senate legislation to update and modernize WIOA. Feedback from stakeholders on the proposal is due by July 5. This follows the House’s recent passage of their WIOA modernization legislation, A Stronger Workforce for America Act. (June 12)
    • A recording of the hearing and list of witnesses are available here.
  • The House E&W Subcommittee on Workforce Protections held a hearing entitled, “Combating Workplace Antisemitism in Postsecondary Education:  Protecting Employees from Discrimination” – highlighting the experience of Jewish staff and faculty subjected to antisemitic activities and speech at universities. (June 26)
    • The minority’s opening statement is available here.
  • The House E&W Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, “Examining the Policies and Priorities of the Employee Benefits Security Administration (EBSA) ” with the Assistant Secretary of EBSA serving as the sole witness. (June 27)
    • The minority’s opening statement is available here.
  • HELP Ranking Member Cassidy sent a letter to HELP Chairman Bernie Sanders (I-VT) to request HELP hold a hearing on the recent NLRB nominees – Lauren McFerran to serve as Chair (a renomination) and Joshua Ditelberg to serve as a Republican Member – before approving or disapproving them at the committee.  Ranking Member Cassidy’s letter highlights his concerns with Chair McFerran’s tenure at NLRB. As a reminder, 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 serve set five-year terms and cannot be removed from their positions solely because of a change in political leadership. (June 24) 
  • The House Committee on Appropriations, Subcommittee on Commerce, Justice, Science, and Related Agencies released the text for its Fiscal Year 2025 appropriations bill.  This bill covers the EEOC, among other agencies, and will be marked up by the full committee on July 10 after which a full committee vote will be scheduled. The draft includes a 7.7 percent reduction in funding for EEOC and policy riders around recent EEOC guidance documents (see prior updates for more information). (June 26)
  • The House Committee on Appropriations, Subcommittee on Labor, Health and Human Services, and Education released the text for its Fiscal Year 2025 appropriations bill. This bill covers all private-sector labor-related federal agencies except for the Equal Employment Opportunity Commission (EEOC). The bill will be marked up by the full committee on July 9, after which a full committee vote will be scheduled. The draft includes a 23 percent reduction in funding for DOL, a reduction by a third for the NLRB, and an assortment of policy riders including riders to prohibit the overtime rule, independent contractor rule, worker walkaround rule, joint employer rule; and a prohibition on the development of an electronic voting system for private-sector union elections. (June 27)

Executive Branch

Equal Employment Opportunity Commission

  • EEOC appointed Sivaram Ghorakavi as Deputy Chief Information Officer / Chief Artificial Intelligence Office (also known as the “AI Czar”). Ghorakavi spent the last 15 years working in information technology for the federal government.  (June 3)

Department of Labor

  • Acting Secretary Julie Su has been traveling the United States on a “Good Jobs Summer Tour” – seeking to highlight “the investments and priorities of the most pro-worker, pro-union administration in history.” (June 20)
  • The final overtime rule went into effect on July 1, increasing the salary threshold under which employees receive time-and-a-half pay for hours worked over 40 hours per week. Prior to July 1, the salary threshold was $35,568 per year; on July 1 it increased to $43,888 per year and on January 1, 2025, the threshold increases again to $58,656 per year. Every three years thereafter the salary threshold will increase based on data from DOL’s Bureau of Labor Statistics. Several lawsuits challenging the rule are still pending and the only successful lawsuit thus far was brought by the State of Texas – as an employer, the State of Texas does not have to abide by the salary increase in the overtime rule.  (July 1) 

White House

  • POTUS nominated Mark Eskenazi to be a Member of the Occupational Safety and Health Review Commission (OSHRC). OSHRC is an independent agency that decides “contests of citations or penalties that the Occupational Safety and Health Administration issues to employers following inspections of American workplaces.” If confirmed, Eskenazi would restore the Commission’s quorum.  (June 5)

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 and other great updates on labor-related happenings on our Latest News page. ICYMI in June: 

That’s it for June! We’ll be back once Congress breaks for their August recess – leaving only three weeks of work remaining before the presidential election. We’ll of course keep you apprised of any happenings in the federal labor and employment space as they arise.