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

Whew, April was a BIG month for final labor and employment regulations and guidance – eight are highlighted below.  As we discussed last month, this was expected (although perhaps not so many in one week!) in order for the Biden Administration to get ahead of the forthcoming Congressional Review Act (CRA) deadline.  For more information on the CRA, please see the March Federal Labor Update.

Congress was busy this month, passing a long-awaited bipartisan aid package for Israel, Taiwan, and Ukraine containing $95 billion in aid for the foreign wars.  Also included in the package is a ban on the social media platform TikTok unless its Chinese parent company, ByteDance, sells TikTok within a year.  The aid package and TikTok ban were signed into law by President Biden. 

Finally, it wouldn’t be another month without a threat to vacate the Speaker of the House.  This week, Rep. Marjorie Taylor Greene (R-GA) is expected to force a vote of no confidence in Speaker Mike Johnson (R-LA).  It’s not yet clear how many Republicans will support the motion of no confidence to oust the Speaker, but the motion is expected to fail as the House Democratic leadership said they will vote to block the motion. 

The House and Senate are in session until Memorial Day week. 

What’s Happening (or Not) in Congress

• The House passed the bipartisan Stronger Workforce for America Act (H.R. 6655), legislation to update and reauthorize the public workforce system – with a heavy emphasis on skills development and building greater connections between employers and the workforce system.  The legislation now awaits Senate consideration.  A bill summary is available here and a fact sheet is available here.  (April 9)

• The Senate voted in favor of a Congressional Review Act Resolution of Disapproval (CRA) to overturn the National Labor Relations Board’s (NLRB) Joint Employer rule (see the November update for more background).  Senators King (I-ME), Manchin (D-WV), and Sinema (I-AZ) voted in favor of the CRA.  The CRA was subsequently vetoed by President Biden.  (April 10)

• Rep. Tom Cole (R-OK) was ratified by the House Republican Conference to serve as the new Chairman of the House Committee on Appropriations.  Chairman Cole has served in the House since 2003 and is the longest-serving Native American in the history of Congress.  (April 10)

Committee Action

• The House E&W Subcommittee on Workforce Protections held a hearing entitled, “Unlocking Opportunity: Allowing Independent Contractors to Access Benefits” – exploring pathways to expand access to benefits for all workers, not just traditional employees.  Highlights included the witness for the minority, Katie Wells (Postdoctoral Fritz Fellow, Tech and Society Initiative at Georgetown University) stating she agreed that independent workers should be reclassified as employees “against their will.”  Also discussed was a recent partnership between DoorDash and the Commonwealth of Pennsylvania – a portable benefits pilot program for DoorDash workers.  The State of Utah is following next. (April 11)
  
  • A recording of the hearing is available here.
  • The list of witnesses and minority’s opening statement are available here and the minority’s opening statement is available here.

• The House Committee on Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies, held its Fiscal Year 2025 Budget Hearing on the budget request from the Department of Labor.  Acting Secretary Su served as the sole witness.  (April 17)
  • A recording of the hearing and witness testimony are available here.

• 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 (see below under “Department of Labor”), 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.

Executive Branch

White House

• In accordance with October’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, DOL issued two documents this month.  First, nine federal agencies, including DOL and EEOC, released a “Joint Statement on Enforcement of Civil Rights, Fair Competition, Consumer Protection, and Equal Opportunity Laws in Automated Systems.”  The statement was largely viewed to be a precursor to two guidance documents issued later in the month – one from the Wage and Hour Division (WHD) and the other from the Office of Federal Contract Compliance Programs (OFCCP).  These guidance documents collectively provide “principles and best practices for employers that could be used to mitigate AI’s potential harms to employees’ well-being and maximize its potential benefits.”  (April 4 and April 29, respectively)

• The U.S. Office of Personnel Management (OPM) finalized a rule largely seen to protect against a future administration creating a new excepted service schedule as was done via Executive Order at the end of President Trump’s Administration (known as “Schedule F”).  The newly-finalized rule from OPM establishes procedures for moving a career civil servant from the competitive service to the excepted service, makes clear once a career civil servant receives excepted service protections those protections cannot be removed unless done so voluntarily, and clarifies who is a non-career political appointee versus a career civil servant.  (April 4)

Equal Employment Opportunity Commission

• EEOC issued a final rule implementing the Pregnant Workers Fairness Act.  While the legislation was bipartisan, the final rule is not, with many Republicans concerned about the inclusion of abortion as a related medical condition for which an employer may need to provide a reasonable accommodation.  (April 19)
  • In response to the final rule, 17 state attorneys general filed a lawsuit against the EEOC seeking to invalidate the rule.  (April 25)

• EEOC issued final guidance on harassment in the workplace entitled, “Enforcement Guidance on Harassment in the Workplace” to outline employer liability applicable to employment harassment claims.  The guidance is intended to be a resource on employer liability and legal standards to “help people feel safe on the job and assist employers in creating respectful workplaces.”  Opponents of the guidance are concerned it does not resolve the conflict between the laws the EEOC enforces and the National Labor Relations Act (enforced by NLRB) which governs the collective bargaining and unionization process.  (April 29)

Department of Labor

• DOL’s Mine Safety and Health Administration issued a final rule regarding health hazards associated with exposure to respirable crystalline silica – aka silica dust.  Not to be confused with the Occupational Safety and Health Administration’s (OSHA) rule on silica dust, this rule decreases the permissible exposure limit of silica dust to which a miner can be exposed.  (April 16)

• DOL’s WHD issued its final overtime rule, increasing the salary threshold under which employees receive time-and-a-half pay for hours worked over 40 hours per week.  Currently, the salary threshold is $35,568 per year, on July 1 it increases to $43,888 per year, and on January 1, 2025, the threshold increases to $58,656 per year.  Every three years thereafter the salary threshold will increase based on data from DOL’s Bureau of Labor Statistics.  (April 23)

• DOL’s Employee Benefits Security Administration issued its final rule regarding who is an investment advice fiduciary under the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code.  This is the fourth attempt to change the definition of a fiduciary since 2010.  (April 23) 

• DOL’s Employment and Training Administration issued a final rule regarding protections for non-immigrant temporary foreign farmworkers (H-2A workers).  Generally, the rule seeks to add new self-advocacy protections, clarifies for-cause termination, transparency in foreign labor recruitment, among other changes.  (April 26) 

• DOL’s Employee Benefits Security Administration issued a final rule rescinding the Trump Administration’s Association Health Plan (AHP) rule, which previously was largely invalidated by the U.S. District Court for DC in 2018 and thus stopped the rule’s implementation.  AHPs were intended to make it easier for groups or associations to band together and be treated as an employer for purposes of health insurance – pooling the risk and resulting in lower health insurance premiums.  Opponents argued that by classifying this insurance as employer-provided health insurance and making it subject to ERISA, it circumvented consumer protections.  (April 29)

National Labor Relations Board

• The NLRB’s General Counsel issued a memorandum to NLRB Regional Directors entitled, “Securing Full Remedies for All Victims of Unlawful Conduct” – expanding remedies in cases involving unlawful work rules or contract terms because “the remedy of mere rescission of an overbroad, unlawfully promulgated, or unlawfully applied rule or contract term does not expunge discipline imposed under those unlawful provisions or retract related legal enforcement actions, and thus fails to make impacted employees whole.”  (April 8)
• During the first six months of the 2024 Fiscal Year, NLRB union election petitions increased by 35 percent and unfair labor practice charges increased by seven percent over the same period in 2023.  (April 9) 

Federal Trade Commission

• The FTC issued a final rule banning noncompete agreements nationwide, with the exception of those entered into by individuals involved in the sale of a business entity.  The final rule also grandfathered in noncompete agreements that currently exist for senior executives, but bans new noncompete agreements for senior executives going forward.  A fact sheet is available here.  (April 23)
  • The very next day, the U.S. Chamber of Commerce filed suit against the FTC seeking to set aside the rule.  (April 24)

Supreme Court of the United States

• SCOTUS issued a unanimous decision in Muldrow v. City of St. Louis in which the Court held an employee challenging a job transfer under Title VII of the Civil Rights Act must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.  The lower court had previously held the plaintiff’s job transfer was not a violation of Title VII because it didn’t meet a heightened “significant” harm bar. (April 17)

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 April: 

• Rigged:  The Fight Over a Union Election in New York City (April 16)
• Louisiana House Committee to Consider Labor Reforms (April 24)

That’s it for April!  We expect a fairly quiet summer from Congress with very few must-pass bills remaining until the fall election.  We’ll of course keep you apprised of any happenings in the federal labor and employment space as they arise.