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.
Below is the inaugural edition of AFFT’s monthly Federal Labor Policy Newsletter – covering top-line developments in federal labor and employment policy. In November, Congress averted a government shutdown and funded the government through early 2024, punting the annual spending battle until after the holiday season. The U.S. House of Representatives is scheduled to break for the year on Thursday, December 14, and the U.S. Senate will break on Friday, December 15. We will closely watch as Congress wraps up over the next two weeks before providing our final update of the 2023 calendar year in December.
What’s Happening in Congress
- On November 8, the Senate re-confirmed Equal Employment Opportunity Commission (EEOC) Chair Charlotte Burrows to another five-year term. The vote was on party lines, with only Democrat support. Chair Burrows’ confirmation means EEOC will retain its full compliment of five Commissioners until at least the end of 2024 (barring any retirements). The EEOC is responsible for enforcing federal nondiscrimination laws. You can find more information about the EEOC here.
- On November 28, President Biden’s nominee to lead the Department of Labor’s (DOL) Employment and Training Administration (ETA), Jose Javier Rodriguez, failed a procedural vote in the Senate—preventing further action on his confirmation until or unless he can overcome the procedural hurdle. Senators Joe Manchin (D-WV) and Bob Menendez (D-NJ) joined Republicans to vote against Rodriguez. DOL’s ETA administers federal workforce development, job training, and worker dislocation programs, in addition to unemployment insurance benefits. You can find more information about DOL’s ETA here.
Committee Action
- On November 14, the Senate Committee on Health, Education, Labor, and Pensions (HELP) held a hearing entitled, “Standing Up Against Corporate Greed: How Unions are Improving the Lives of Working Families.” Chairman Bernie Sanders (I-VT) held the hearing to highlight “recent historic collective bargaining agreements and discuss the challenges workers continue to face in exercising their right to form and join unions and bargain for fair contracts.” During the hearing, Senator Markwayne Mullin (R-OK) challenged the Head of the Teamsters’ Union, Sean O’Brien, to a physical fight.
- The list of witnesses and recording of the hearing are available here.
- On November 21, Chairwoman Virginia Foxx (R-NC) of the House Committee on Education and the Workforce issued a subpoena to DOL Acting Secretary Julie Su for documents related to DOL’s Occupational Safety and Health Administration (OSHA) “Workers’ Voice Summit,” an event held on October 22, 2022, intended to “strengthen existing ties between the department and labor unions, [and] worker centers.” Over the past year, Committee Republicans sent four oversight letters to DOL regarding “concerns about the political nature of the Summit which was funded by taxpayer dollars” and issued this subpoena due to DOL’s “failure to respond to the Committee’s requests in a timely or fully responsive manner.”
- The cover letter to the subpoena is available here.
- Chairwoman Foxx’s press release is available here.
- On November 29, the House Committee on Education and the Workforce Subcommittee on Workforce Protections held a hearing entitled, “Bad for Business: DOL’s Proposed Overtime Rule.” Subcommittee Chairman Kevin Kiley (R-CA) held the hearing to highlight “[w]orking Americans, small businesses, nonprofit organizations, institutions of higher education, and taxpayers deserve to know how this rule will negatively impact their families and their livelihoods.” More information regarding the overtime rule can be found below under “Rulemaking and Guidance.”
- The list of witnesses and recording of the hearing are available here.
- On November 30, the House Committee on Education and the Workforce Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, “Safeguarding Workers’ Rights and Liberties.” Subcommittee Chairman Bob Good (R-VA) held the hearing to highlight the National Right-to-Work Act, legislation intended to “preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities.”
- 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.
- Text of the National Right to Work Act (H.R. 1200) along with a list of cosponsors is available here.
Executive Branch Action
White House
- On November 16, President Biden signed the first-ever Presidential Memorandum “outlining the Administration’s commitment to worker rights globally” by directing the federal government, through its agencies and departments, to “advance labor rights and worker empowerment in their work abroad.”
- A fact sheet on the Presidential Memorandum is available here.
Rulemaking and Guidance
- Joint Employer Rule. At the end of October, the National Labor Relations Board (NLRB) published a final rule for determining whether two or more employers are jointly responsible for a group of employees, also known as the “Joint Employer Standard.” The prior rule, finalized in 2020, held that two or more employers are jointly responsible for the same group of employees when the businesses possessed and exercised “substantial direct and immediate control.” The new final rule expands the definition, considering the employers’ authority to exercise control of essential terms and conditions of employment, regardless of whether the control is exercised. The courts will ultimately decide whether this rule stands – legal challenges were brought against the rule almost immediately upon the rule’s finalization. The rule is effective February 26, 2024.
- A copy of the final rule can be found here.
- Overtime Rule. In September, DOL’s Wage and Hour Division issued a proposed rule to 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 $55,000 per year, with an automatic update to the amount every three years based on earnings data. The public comment period for this rule closed on November 7. DOL will now review the comments and is expected to issue a final rule in 2024.
- A copy of the proposed rule can be found here.
- Worker Walkaround Representative Rule. In August, DOL’s OSHA issued a proposed rule to allow employees to designate a third party representative 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. The public comment period for this rule closed on November 13. OSHA will now review the comments and is expected to issue a final rule in 2024.
- A copy of the proposed rule can be found here.
2024 Election Year
- President Biden has endorsements from a number of national labor unions for his candidacy for President in 2024; however, the United Auto Workers and the Teamsters have yet to endorse a presidential candidate. The Teamsters requested all presidential candidates to join a roundtable of its rank-and-file members on four issues of importance to their members: “the shrinking American middle class, corporate bankruptcy reform, antitrust enforcement in the warehouse and package delivery industries, and the freedom to form and join a union.”
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 stepping into the void and 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 November:
- Richmond Employees Face Realities of Collective Bargaining (Nov. 17)
- PA Legislation to Give Striking Workers Unemployment Benefits Passes First Hurdle (Nov. 15)
That’s it for November – we’ll be back in December with a final update on actions Congress and the Executive Branch take before breaking for the holiday season.