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US Federal Labor Viewpoints – Week of February 5, 2022

This is a weekly post spotlighting labor topics in focus by the US legislative and executive branches during the previous week.

In this issue, we cover:

  • President Boosts Unions

  • January Jobs Report

  • America COMPETES Act Update

  • Potential Overtime Rule Change Scrutinized

  • Wage & Hour Division Plusses Up

  • Federal Vaccine Mandate Updates

  • COVID-19 Updates

  • Upcoming Congressional Hearings

Both chambers of the U.S. Congress were in session this week.  The U.S. House of Representatives approved its trade/competitiveness bill on Friday, setting up a potential conference with the U.S. Senate to reconcile this much broader bill with the narrower one approved by the Senate last year.   Next week, the House is expected to take up a three-week Continuing Resolution to extend funding for the Federal Government through March 11, ahead of the February 18 funding lapse deadline.  Negotiations continue on an Omnibus bill to fund the Government for the remainder of the fiscal year, with the hope that work will be completed by March 11.

President Boosts Unions.  On February 4, U.S. President Joe Biden signed an Executive Order that requires large federally funded projects to use project labor agreements, a pre-contract commitment by employers to enter into a collective bargaining agreement with at least one union.  This would include project funded via the Bipartisan Infrastructure Law and contracts ranging from “the maintenance of nuclear sites to base construction to waterways and flood projects,” according to the White House.  The White House further said the order would “only apply to provisions in the Bipartisan Infrastructure Law that are direct federal procurement, which excludes construction projects financed through grant dollars to non-federal entities.”

House Education & Labor Committee Ranking Member Virginia Fox (R-North Carolina) issued a statement on the President’s executive action, saying it requires burdensome project labor agreements on federal construction projects above $35 million.  She added:

“Union bosses don’t need to visit a casino with the hopes of winning a jackpot – they’ve got President Biden to hand-deliver one to them yet again. It speaks volumes that this president has become so tightly wrapped around the little fingers of union bosses that he no longer cares about the consequences of his actions – respect for contractors, skilled workers, and taxpayers be damned.”

January Jobs Report.  Also on Friday, the U.S. Department of Labor released the January Jobs Report, reporting employers added 467,000 jobs last month and unemployment remains static at four percent; and revised up its estimate of job gains for November and December by a combined 709,000.  In sum, the leisure and hospitality sector added 151,000 jobs in January; the retail sector added 61,000 jobs; and the transportation and warehousing sector added 54,000 jobs.  U.S. Secretary of Labor Marty Walsh issued a statement on the report, available here.

House Ways & Means Committee Chairman Richard Neal (D-Massachusetts) issued a statement welcoming the strong jobs report.  He said:

“These numbers defied predictions, showing that the strong economic recovery that began last year, supported by the American Rescue Plan Act and the determination of American workers, is continuing, even in the face of ongoing public health challenge.”

America COMPETES Act Update.  After floor debate this week, the U.S. House of Representatives approved H.R. 4521, the America Creating Opportunities for Manufacturing Pre-Eminence in Technology and Economic Strength (COMPETES) Act of 2022, by a narrow vote of 222 to 210 on Friday, with just one Republican supporting it.  The bill includes a number of Democratic priorities, such as Trade Adjustment Assistance, which must be reconciled with the more narrow Senate-approved United States Innovation and Competition Act (“USICA”; S. 1260).  Notably, the U.S. Chamber of Commerce targeted the Democratic trade provisions and other trade language in a letter to lawmakers opposing the bill on Wednesday.  Democrats are reportedly pushing to reconcile a package that could land on the President’s desk before his State of the Union address on March 1.

House Education & Labor Committee Chairman Bobby Scott (D-Virginia) said at a press conference on passage of the bill:

“The America COMPETES Act will connect students and workers with the skills they need to succeed in high-tech industries while strengthening our economy’s competitiveness in the years ahead.  These investments will help expand access to computer science education and postsecondary STEM pathways—particularly for those who have historically been left behind.”

Potential Overtime Rule Change Scrutinized.  House Education & Labor Ranking Member Fox joined Workforce Protections Subcommittee Ranking Member Fred Keller (R-Pennsylvania), Senate Health, Education, Labor, and Pensions (HELP) Committee Ranking Member Richard Burr (R-North Carolina), and Senate HELP Employment and Workplace Safety Ranking Member Mike Braun (R-Indiana), in sending a letter to Secretary Walsh on February 4, calling for “robust public engagement” prior to any Notice of Proposed Rulemaking (NPRM) on overtime pay requirements.  The Republican lawmakers questioned the need for overhauling the current overtime pay regulations, and emphasized the need for public engagement with the employers and employees who will be affected by the changes.  The Department of Labor has previously stated it intends to issue in April 2022.

Wage & Hour Division Plusses Up.  On February 1, the Labor Department announced that its Wage & Hour Division is seeking to add 100 investigators to its team to support its enforcement efforts including the protection of workers’ wages, migrant and seasonal workers, rights to family and medical leave and prevailing wage requirements for workers on federal contracts.  Acting Wage & Hour Administrator Jessica Looman said of the action:

“We anticipate significantly more hiring activity later in fiscal year 2022. While appropriations will determine our course of action, we are optimistic we will be able to bring new talented professionals onboard to expand our diverse team.”

Federal Vaccine Mandate Updates.  On February 2, the U.S. Army announced it would start involuntary separation proceedings for those soldiers who have refused the COVID-19 vaccine and do not have a pending or approved exemption, a move that could affect more than 3,300 service members.  Soldiers will be discharged for misconduct; those who are eligible to retire can do so before July 1, the order says.

The First Liberty Institute, which is representing the Navy SEALs, filed a motion on January 31 asking Judge Reed O’Connor of the Northern District of Texas to hold the Navy in contempt for not honoring the judge’s decision.  The Judge issued a preliminary injunction in January blocking the U.S. Department of Defense from taking action against 35 Navy service members who refused a COVID-19 vaccine because of religious objections.  In an interview, the lawyer representing the Navy SEALs said,

“A substantial number of them continue to experience this harassment for being unvaccinated.”

COVID-19 Updates.  Reuters reported on January 31 that a Danish study indicates that Omicron sub-variant BA.2 could be more transmissible than the more common “original” BA.1 variant and more able to infect vaccinated people.  BA.2 has now become the dominant strain, overtaking BA.1, in Denmark.  This week, the World Health Organization classified BA.2 as a “variant of concern.”

Some U.S. governors are pushing the Biden Administration to have the Centers for Disease Control and Prevention (CDC) provide clear guidance that will allow U.S. states to transition out of the COVID-19 pandemic and into endemic status.  On January 31, the U.S. Food & Drug Administration (FDA) approved a second COVID-19 vaccine, originally known as the Moderna COVID-19 Vaccine; the approved vaccine will be marketed as Spikevax for the prevention of COVID-19 in individuals 18 years of age and older.  Also on Monday, Novavax submitted its formal request to the FDA for emergency use authorization (EUA) for its COVID-19 vaccine, NVX-CoV2373.

Upcoming Congressional Hearings.  Next week, the Senate HELP committee has scheduled the following hearings:

  • February 8: The full committee will hold a hearing titled, “Lessons Learned from COVID-19: Highlighting Innovations, Maximizing Inclusive Practices and Overcoming Barriers to Employment for People with Disabilities.”

  • February 10: The HELP Subcommittee on Employment and Workplace Safety will hold a hearing titled, “Recruiting, Revitalizing & Diversifying: Examining the Health Care Workforce Shortage.”

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 39
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About this Author

Stacy Swanson, Public Policy Specialist, Squire Patton Boggs Law Firm
Public Policy Specialist

Stacy Swanson helps sovereign governments successfully navigate Washington and understand United States Government policy. She regularly provides clients with strategies which effectively leverage existing relationships to advocate policy objectives before the legislative and executive branches of the U.S. government. 

202-457-5627
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