Federal 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.

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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 15^th 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 majority’s opening statements are available here, the minority’s opening statements 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 majority’s opening statement is available here, the minority’s opening statement is 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: 

• MIT Graduate Students Fight Antisemitic Union (March 28)

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!

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.

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Welcome to the February edition of AFFT’s Monthly Federal Labor Policy Update – covering top-line developments in federal labor and employment policy. In true Groundhog Day fashion, Congress kicked the proverbial funding can down the road – again – sending a Continuing Resolution (CR) to President Biden extending the deadlines Congress has to pass two packages of appropriations bills to March 8 and March 22.

In late February, Senate Minority Leader Mitch McConnell (R-NV) announced he will not seek reelection as Senate Republican Leader, but will serve out the remainder of his Senate term until 2027. First elected as Republican Leader in 2006, McConnell is the longest-serving Senate Party Leader in American history. The race to succeed McConnell is on – current Republican Whip Senator John Thune (R-SD) announced he will run for the top spot while the third-ranking Senate Republican, Senator John Barrasso (R-WY), announced he would run for Republican Whip.

We’re closely watching a case from a federal judge in Texas that 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.    

Let’s see what Congress can accomplish in the next few weeks before both chambers depart for a two-week recess and the Easter holiday the 22^nd of March.

What’s Happening (or Not) in Congress

• On February 5, Senators John Hickenlooper (D-CO) and Mike Braun (R-IN), Chairman and Ranking Member of the Senate Committee on Health, Education, Labor, and Pensions (HELP) Subcommittee on Employment and Workplace Safety, sent a letter to Department of Labor (DOL) Acting Secretary Julie Su requesting information regarding DOL’s plans to support and train workers and employers on Artificial Intelligence (AI) implementation.

• On February 7, House Committee on Education and the Workforce (E&W) Chairwoman Virginia Foxx (R-NC) announced she will not seek another waiver to be Chair of the committee next Congress. House Republican Conference rules prevent Members of Congress from serving more than three consecutive terms as chair or ranking member of a committee. Representatives Tim Walberg (R-MI) and Burgess Owens (R-UT) announced they will seek the top spot at the committee.

• On February 16, Representative Eric Burlison (R-MO) introduced the Overtime Pay Flexibility Act (H.R. 7367), legislation to prevent DOL from finalizing, implementing, or enforcing its proposed overtime rule. As proposed, the rule would 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 $55,00 per year, with an automatic update to the amount every three years based on earnings data.    

• On February 29, the House pulled a scheduled vote on the Bipartisan Workforce Pell Act (H.R. 6585) – legislation to expand grant opportunities to short-term Pell programs – under suspension of the House Rules. Voting on legislation under suspension of the rules limits debate and prevents amendments on the Floor; however, it also requires a two-thirds supermajority vote. It is largely assumed the legislation was pulled from a Floor vote because there was concern it would not have the required two-thirds support for passage.

Committee Action

• On February 14, the House E&W Committee Subcommittee on Workforce Protections held a hearing entitled, “Examining the Policies and Priorities of the Wage and Hour Division” with Administrator Jessica Looman as the sole witness. Issues raised by Republicans included the independent contractor rule, overtime rule, and Davis-Bacon.
  • The list of witnesses and recording of the hearing are available here.
  • Chairman Kevin Kiley’s (R-CA) opening statement is available here and Ranking Member Alma Adams’s (D-NC) opening statement is available here.

• On February 27, the Senate HELP Committee held an executive session (aka a markup) of three presidential nominees, including DOL Acting Secretary Su who was approved by the committee along party lines. Su now awaits a vote by the full Senate.
  • On February 14, Senate HELP Ranking Member Bill Cassidy (R-LA) sent a letter to Chair Sanders (I-VT) requesting a hearing on Su’s renomination. Cassidy noted that it had been 339 days since Su assumed the role of Acting Secretary and 299 days since Su appeared before the HELP Committee.

Executive Branch

Department of Labor

• On February 9, DOL’s Occupational Safety and Health Administration (OSHA) sent its “walkaround rule” to the Office of Information and Regulatory Affairs (part of the Office of Management and Budget at the White House) for final review. When an agency is ready to finalize a rule, they send it to OIRA for one last review. Once OIRA finalizes its review, the rule is sent back to the agency to issue the final rule. Asproposed, the rule would allow employees to designate third party representative(s) 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.     

• On February 9, a group of 11 Democratic Attorneys General petitioned OSHA for an Emergency Temporary Standard for “occupational heat exposure for farmworkers and construction workers, at minimum, beginning May 1, 2024.” 

• On February 21, DOL’s Bureau of Labor Statistics (BLS) issued its annual report on major work stoppages (aka strikes and lockouts that involve 1,000 or more workers and last at least one shift during the work week). In 2023, major work stoppages hit a 23 year high with 33, the highest since there were 39 in 2000. 

• On March 1, DOL’s Wage and Hour Division (WHD) sent its overtime rule to OIRA for final review (see above for more information on the rule). 

National Labor Relations Board

• On February 7, a National Labor Relations Board (NLRB) Regional Director determined that college basketball players at Dartmouth University in New Hampshire are employees for purposes of the National Labor Relations Act, and directed an election for the basketball team to vote to determine whether to be represented by a union. Dartmouth is expected to appeal the decision to the full NLRB.

• On February 21, the NLRB issued a decision in Home Depot USA finding that Home Depot engaged in unfair labor practices by requiring an employee remove “BLM” (the acronym for “Black Lives Matter”) initialing on their work apron, citing a dress policy prohibiting “displaying [on an apron] causes or political messages unrelated to workplace matters.” The employee refused to remove the lettering and resigned. In its decision, the NLRB said that Home Depot failed to establish special circumstances that make the dress code rule necessary to maintain production or discipline.     

• On February 23, a U.S. District Judge for the Eastern District of Texas stayed the effective date of the NLRB’s final joint employer rule (determining whether two or more employers are jointly responsible for a group of employees) until March 11. Initially scheduled to be effective February 26, the U.S. District Judge held a hearing on February 13 on a challenge to the rule and is expected to issue an opinion before the March 11 deadline.

Nominations

• On February 29, President Biden nominated former DOL Secretary Marty Walsh to serve on the U.S. Postal Service’s Board of Governors. This is not a full-time position and Walsh is currently Executive Director of the National Hockey League Players’ Association.

Other Federal Labor-Related Policy News

• On February 6, Service Employees International Union (SEIU) President Mary Kay Henry announced that after 14 years she will not seek reelection later this year.

• On February 15, University of Illinois School of Labor and Employment Relations and Cornell University’s School of Industrial and Labor Relations released their annual Labor Action Tracker for 2022. The report found work stoppages increased by about 9% and the number of workers involved in work stoppages increased by about 141%, primarily due to high-profile strikes.

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 February: 

• Teachers Union Strike in Massachusetts Amid Statewide Revenue Deficits (Feb. 7)
• Several Minnesota Unions Authorize Strikes (Feb. 29)

We’ll report back in April with an update on whether Congress is able to drag the longer-term funding bills across the finish line, a recap of the State of the Union, and all-other labor happenings in the next few weeks before recess!

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.

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We’re back with the latest edition of AFFT’s Monthly Federal Labor Policy Update – covering top-line developments in federal labor and employment policy. In January, Congress kicked the proverbial funding can down the road – yet again – sending a Continuing Resolution (CR) to President Biden that gives Congress until March 1 to pass the first tranche of appropriations bills (military construction and the Departments of Veterans Affairs, Housing and Urban Development, Agriculture, and Energy). Funding for the remaining agencies (including Labor and its related agencies) expires March 8. Overall funding totals for Fiscal Year 2024 were agreed to by House Speaker Mike Johnson and Senate Majority Leader Chuck Schumer, but they did not have time to negotiate the details before the first expiration date of the last CR on January 19. 

With strong bipartisan support, the House passed a $78 billion tax package, restoring some business tax breaks and increasing the Child Tax Credit. Of note, the package did not increase the cap on the state and local tax deduction (aka SALT) for married couples who file jointly – but House leadership agreed to hold a vote on separate SALT legislation shortly. The tax package is now over to the Senate where it will likely be amended before being sent back to the House for another vote.    

The Senate is expected to consider the border security and Ukraine aid deal the week of February 5 before leaving for a two week recess.

With the President’s Day holiday, the House is in session for three weeks and the Senate is in session for two weeks in February. We’ll closely watch what does (or does not!) happen during their short time in DC this month and report back in March.

What’s Happening (or Not) in Congress

• On January 4, more than 30 Senate Democrats sent a letter to 13 non-unionized automakers urging them to commit to neutrality agreements with the united Auto Workers’ Union at their manufacturing plants. A neutrality agreement is a contract between an employer and a union in which the employer agrees to not interfere in a union’s efforts to organize a workplace.

• On a related note, House Committee on Education and the Workforce Chairman Virginia Foxx (R-CA) recently penned an op-ed entitled, “Big Labor’s Neutrality Agreements Must be Stopped.”

• On January 8, the House Bipartisan Paid Family Leave Working Group released a policy framework of legislative options to provide more families with more paid leave. The four pillars of the framework are: (1) a public-private partnership pilot; (2) coordination and harmonization of paid leave benefits across states; (3) small employer pooling for paid leave insurance; and (4) improvements to paid leave tax credits for small businesses and working families. The Group plans to explore these pillars with various stakeholders on a bipartisan basis in the coming year.  

• Separate from the Group’s efforts, Senators Angus King (I-ME) and Deb Fischer (R-NE) will soon introduce legislation to incentivize employers to provide paid family and medical leave through tax credits. A summary of the bill is available here.

• On January 11, Erika McEntarfer was confirmed by the Senate to serve as Commissioner of Labor Statistics at the U.S. Department of Labor’s (DOL) Bureau of Labor Statistics (BLS).

• On January 12, the House 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). Eight Democrats joined Republicans to invalidate the rule. The CRA now awaits Senate action before the rule goes into effect on February 26.

• On January 22, Senate Committee on Health, Education, Labor, and Pensions Ranking Member Bill Cassidy (R-LA) sent a letter to major meat producers and chemical companies that reportedly violated federal law by employing children in hazardous jobs. The letters request the companies provide data regarding how they are holding their employees accountable and how they have changed their policies.

Committee Action

• On January 11, the House Committee on Education and the Workforce Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, “Lowering Costs and Increasing Access to Health Care with Employer-Driven Innovation.” Subcommittee Chairman Bob Good (R-VA) held the hearing to “examine innovative methods and payment models such as direct contracting, centers of excellence, onsite clinics, and high-performance networks that have the potential to lower costs while increasing quality of care for employees.”
  
  
  • 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.

• On January 17, the House Committee on Oversight and Government Reform Subcommittee on Cybersecurity, Information Technology, and Government Innovation held a hearing entitled, “Toward an AI-Ready Workforce.” Chairwoman Nancy Mace (R-SC) held the hearing to discuss “how to equip public sector workers with AI skills and how the government can apply best practices from private-sector AI learning programs to the federal workforce.”
  
  
  • The list of witnesses and recording of the hearing are available here.
  • Chairwoman Mace’s opening statement is available here and Ranking Member Gerry Connolly’s (D-VA) opening statement is available here.

• On January 18, the House Committee on Education and the Workforce Subcommittee on Early Childhood, Elementary, and Secondary Education held a hearing entitled, “Preparing Students for Success in the Skills-Based Economy.” Subcommittee Chairman Aaron Bean (R-FL) held the hearing to “explore both traditional and alternative programs and pathways for education and credentials that prepare individuals to work in AI-related roles.” 
  
  
  • The list of witnesses and recording of the hearing are available here.
  • Chairman Bean’s opening statement is available here and Ranking Member Suzanne Bonamici’s (D-OR) opening statement is available here.

Executive Branch

Department of Labor

• On January 15, DOL’s annual inflation adjustment for federal civil penalties went into effect, increasing penalties by 3.2 percent for the Occupational Safety and Health Administration and child labor violations, among others.  

• On January 23, DOL’s BLS released its annual union membership data for 2023. The overall union membership rate hit another record low, decreasing from 10.1 percent in 2022 to 10.0 percent in 2023. Additional highlights and comparisons to 2022 are below:
  • Public Sector Unions. The public sector union membership rate decreased by 0.6 percent to 32.5 percent. For comparison, in 1983 (the first comparable data set) the union membership rate was 36.7 percent. The number of union workers in the public sector also decreased by 52,000.
  • Private Sector Unions. The private sector union membership rate remained unchanged at 6.0 percent. For comparison, in 1983 the union membership rate was 16.8 percent. The number of union workers in the private sector increased by 191,000.

Federal Labor Relations Authority

• An Administrative Judge with the U.S. Department of Agriculture filed suit against the Federal Labor Relations Authority (FLRA)—the federal government agency tasked with administering the labor-management relations program for non-Postal federal employees—seeking to end union representation of a bargaining unit that includes professional and nonprofessional employees. The lawsuit alleges there wasn’t a required vote of a majority of the professional employees agreeing to be included in a bargaining unit with nonprofessional employees. The lawsuit further alleges the FLRA destroyed or otherwise failed to maintain vital records as to the original union election in 1998, in violation of federal law.

Nominations

• On January 8, Cathy Ann Harris was renominated to be Chairman of the Merit Systems Protection Board (MSPB). Harris joined the MSPB in June 2022 and currently serves as Acting Chairman of the MSPB. Harris was renominated by President Biden after her initial nomination was returned by the Senate at the end of the First Session of the 118^th Congress.

• On January 8, Colleen Duffy Kiko was renominated by President Biden to be the Republican Member of the FLRA. Kiko has served as a Member of the FLRA since December 2017. Kiko was renominated by President Biden after her initial nomination was returned by the Senate at the end of the First Session of the 118^th Congress.

• On January 8, Suzanne Elizabeth Summerlin was renominated by President Biden to be General Counsel of the FLRA. Summerlin previously served as Associate General Counsel for the National Federation of Federal Employees and is currently Deputy General Counsel and Deputy Executive Director for the Federal Education Association. Summerlin was renominated by President Biden after her initial nomination was returned by the Senate at the end of the First Session of the 118^th Congress. 

• On January 11, Anne Marie Wagner was nominated by President Biden to be a Member of the FLRA. Wagner previously served as Vice Chair of the Merit Systems Protection Board and is currently Associate Special Counsel at the Office of Special Counsel. This is President Biden’s second nomination for this position; Nancy Anderson Speight’s nomination was withdrawn in October 2023.

U.S. Supreme Court

• On January 17, the U.S. Supreme Court heard arguments in two cases challenging the Chevron doctrine regarding a federal agency’s interpretation of federal law and the deference courts provide to that interpretation.
  • ICYMI:  The Impacts of Chevron Deference on Labor and Industry

2024 Presidential Candidates

• On January 24, the United Auto Workers endorsed President Joe Biden for re-election.
  • ICYMI:  UAW Endorses Biden Without Member Support

• On January 31, Former President Donald Trump attended a roundtable with the Teamsters Union in DC. The Teamsters invited all presidential candidates to meet with its leadership and rank-and-file members. 

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 January: 

• NEA Spends 500k on Four Oregon Ballot Measures, Raising Questions About Transparency (Jan. 22)
• NYC Teachers, Migrant Students, and the Clash of Two Titans (Jan. 26)
• Connecticut Union Membership at Three-Year High (Jan. 31)

That’s it for January.  We’ll be back in February with an update on government funding, border security and aid for Ukraine, and whether or not the Senate can move the tax bill across the finish line – all with only two Senate work weeks in February.  Stay tuned!   

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.

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Happy New Year!  Below is the New Year edition of AFFT’s monthly Federal Labor Policy Newsletter – covering top-line developments in federal labor and employment policy.  In December, Congress passed the National Defense Authorization Act to provide funding for the U.S. military and other defense priorities, including a pay increase for service members, but failed to reach agreement on border security or aid to Ukraine and Israel.

The U.S. Senate returned for the Second Session of the 118^th Congress on Monday, January 8, and the House of Representatives returned on Tuesday, January 9, leaving just a handful of legislative days to reach agreement on key federal appropriations bills.  We will closely watch as Congress races to come to a deal to avert a partial government shutdown next week.

What’s Happening (or Not!) in Congress

• Looming Threat of Government Shutdown.  Congress has a very busy start to the new year.  In addition to continuing to negotiate a border security and foreign aid package, it will have until just January 19 to pass appropriations for military construction and the Departments of Veterans Affairs, Housing and Urban Development, Agriculture, and Energy.  Funding for the remaining agencies, including Labor and its related agencies, expires February 2.  While overall funding totals for Fiscal Year 2024 were agreed to by Speaker Mike Johnson and Senate Majority Leader Chuck Schumer, the devil is always in the details.  If Congress is unable to reach an agreement by the respective expiration dates, there will be a partial government shutdown. 

• Presidential Nominations.  When transitioning to the Second Session of a Congress the Senate typically requires a unanimous consent agreement to “hold over” nominations from the First Session that have not yet received consideration by the Senate as a whole; otherwise the pending nominations are sent back to the President.  Once returned, the President has to choose whether to renominate those individuals to the vacant roles or choose new nominees.  Before leaving for the holidays, the Senate reached unanimous consent to hold over only a handful of nominations – sending more than 50 back to the President, including DOL Acting Secretary Julie Su (who set the record for the longest a Cabinet Secretary nominee has ever waited for a vote by the Senate).  On Monday, January 8, President Biden renominated Su to the top Labor post.    

Committee Action

• On December 5, bipartisan leaders of the House Committee on Education and the Workforce introduced the Bipartisan Workforce Pell Act (H.R. 6585), legislation to create “Workforce Pell” (previously known as “Short-term Pell”) programs.  The original Pell Grant program was created in 1972 for undergraduate students from low income households enrolled in longer-term programs (at least 16 weeks).  Workforce Pell would expand grant opportunities to short-term programs (between eight and 15 weeks) that will lead to career advancement in high-demand fields.  This legislation was approved by the Committee on December 12 and now awaits a vote by the full House. 
  
  
  • The fact sheet is available here.
  • Text of the legislation and a list of cosponsors is available here.

• On December 7, bipartisan leaders of the House Committee on Education and the Workforce also introduced A Stronger Workforce for America (H.R. 6655), legislation to update and reauthorize the public workforce system – with a heavy emphasis on skills development and building connections between employers and the workforce system. This legislation was approved by the Committee on December 12 and awaits consideration by another committee before moving to a vote by the full House. 
  
  
  • The fact sheet is available here.
  • Text of the legislation and a list of cosponsors is available here.

• On December 12, in addition to approving the two above bills, the House Committee on Education and the Workforce also passed a resolution disapproving of the National Labor Relations Board’s Joint Employer Rule (see November’s update for more information) and the Small Business Before Bureaucrats Act (H.R. 3400), legislation to update the NLRB’s jurisdictional standards from the 1958 dollar amounts (from $50,000 for non-retail and $500,000 for retail businesses to $500,000 for non-retail and $5,000,000 for retail businesses).  Both bills passed on party-line, with no Democratic support.
  
  
  • Text of the resolution of disapproval for the Joint Employer rule is available here and the press release is available here.
  • Text of the Small Business Before Bureaucrats Act is available here and the press release is available here.

• On December 13, the House Committee on Education and the Workforce Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, “Protecting Workers and Small Businesses from Biden’s Attack on Worker Free Choice and Economic Growth.”  Subcommittee Chairman Bob Good (R-VA) held the hearing to “shine a light on the Left’s assault on individual liberty and highlight legislation that promotes employee free choice, preserves the right to work as independent contractors, and protects entrepreneurs and small businesses.”
  
  
  • 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.
    
• On January 8, Senate Committee on Health, Education, Labor, and Pensions Ranking Member Bill Cassidy (R-LA) released a Minority Staff Report entitled, “The Biden Administration:  Politicizing National Labor Law to Help Their Union Bosses.”
  
  
  • The Minority Staff Report is available here.
  • Ranking Member Cassidy’s press release is available here.

Executive Branch Action

Department of Labor

• On December 13, the Department of Labor (DOL) launched a revamped Worker Organizing Resource and Knowledge (WORK) Center website.  Initially published Labor Day 2022 under prior DOL Secretary Marty Walsh, the website is largely a collection of resources for workers on how to organize and unionize a workplace.
  
  
  • The website is available here.

• On January 9, DOL announced its final rule regarding the employment classification of independent contractors.  The final rule rescinds the 2021 Trump Administration rule, and instead utilizes a six-factor analysis to determine whether a worker is an independent contractor or employee.  The rule is effective March 11, 2024.  House and Senate Republicans plan to introduce a Congressional Review Act Resolution of Disapproval to invalidate the rule and litigation from industry groups is expected as well.
  
  
  • The final rule, press release, and FAQs are available here.

Congressional Budget Office

• Report on Increasing the Federal Minimum Wage.  On December 18, the Congressional Budget Office (CBO) issued a report on the budgetary and economic effects of raising the minimum wage to $17 per hour by 2029 as proposed in the Raise the Wage Act, introduced in July by Representative Bobby Scott (D-VA) in the House and Senator Bernie Sanders (I-VT) in the Senate.  CBO’s report finds that (if the bill became law) the budget deficit would increase by $46 billion due in part to higher prices for goods and services and increased spending for federal programs such as unemployment compensation and health care.  CBO also found that once the minimum wage reaches $17 per hour, the 8.9 million workers below that threshold and the 9.7 million just above the threshold would be directly affected by either a reduction in employment (0.7 million additional workers) or an increase in wages for those still employed, decreasing in the number of people in poverty by 0.4 million.
   
  • The CBO report is available here.
  • Text of the legislation is available here.

Rulemaking and Guidance

• 2023 Fall Regulatory Agenda.  On December 6, the Biden Administration released its 2023 Fall Regulatory Agenda, listing forthcoming rulemakings and other regulatory and deregulatory actions.  Of note in the labor and employment space, DOL’s Wage and Hour Division is scheduled to release its Overtime Rule (see November’s update for more information) in April 2024 and was scheduled to release its Independent Contractor Rule (governing who is an employee or an independent contractor) in November 2023. 
  
  
  • For a list of all forthcoming regulations, the 2023 Fall Regulatory Agenda can be found here.
  • A list of all open regulations at the Department of Labor and their comment periods is available here. 

• Apprenticeship Rule.  On December 14, DOL’s Employment and Training Administration released a proposed rule seeking to update and modernize the current regulations around the Registered Apprenticeship program.  Specifically, DOL is seeking to strengthen labor standards, quality, and worker protections; better define roles for the states and other stakeholders; expand performance and data requirements to improve accountability and transparency; and create a student-centric model of Registered Apprenticeship.  The comment period will close 60 days after the proposed rule is officially published on the Federal Register’s website.
  
  
  • The Wall Street Journal Editorial Board issued a scathing opinion of the proposed rule entitled, “Biden to Apprentices:  You’re Fired.”  The opening line states, “[w]ant a classic example of the administrative state gone wild?  Get a look at the Labor Department’s recently proposed 776-page rule that purports to clarify a two-page 1937 law regulating apprenticeship programs.”
  • A copy of the proposed rule is available here.

• OSHA Emergency Responders Rule.  On December 21, DOL’s Occupational Safety and Health Administration (OSHA) announced a proposed rule to modernize the agency’s “Fire Brigades” standards.  Among other changes, the proposed rule will include “major changes for protective clothing and equipment and significant improvements in safety and health practices that the industry generally accepts as standard procedures.”  The comment period will close 90 days after the proposed rule is officially published on the Federal Register’s website.
  
  
  • The proposed rule is available here. 

• Project-Labor Agreements Rule.  On December 22, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a final rule requiring federal agencies use project labor agreements (PLAs) for large-scale federal construction projects “where the total estimated cost to the Government is $35 million or more, unless an exception applies.”  According to DOL, a PLA is a “pre-hire collective bargaining agreement negotiated between construction unions and construction contractors that establishes the terms and conditions of employment for construction projects.”  This rule is effective January 22, 2024.
  
  
  • The final rule is available here.

• New Election Procedures Rule.  On December 26, the National Labor Relations Board’s (NLRB) new Election Procedures Rule (“Representation-Case Procedures”) went into effect.  This rule returns the NLRB’s representation election process to the 2014 standard to remove “unnecessary barriers to the fair and expeditious resolution of representation cases.”  This rule is commonly referred to by opponents as the “Ambush Election” or “Quickie Election” Rule.  On December 8, General Counsel Jennifer Abruzzo issued a Guidance Memorandum to NLRB personnel and external stakeholders regarding the changes going into effect. 
  
  
  • The final rule is available here.
  • The General Counsel’s Memorandum is available here.

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 December: 

• How Florida Recertification Legislation Impacts Public Employees (Dec. 25)

That’s it for now – we’ll be back later this month with what promises to be an exciting update on government funding (will we or won’t we shut down?  what will be promised in exchange for a funding deal?  will there be more leadership changes?).  We will also launch our explainer series, focusing on the alphabet soup of federal labor agencies including what they do, and – most importantly –  what their action (or inaction) means for you.  Stay tuned!   

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.

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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. 
  • Chairman Sanders’ press release is available here and HELP Ranking Member Bill Cassidy’s (R-LA) press release is 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. 
  • Chairman Kiley’s opening statement is available here and Ranking Member Alman Adams’ (D-NC) opening statement is 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.