US Federal Labor Viewpoints – Week of March 1, 2021
This is a weekly post spotlighting labor topics in focus by the US legislative and executive branches. In this issue, we cover:
Biden Administration labor leadership update
Congressional COVID-19 relief package update
Federal minimum wage update
National Labor Review Board (NLRB) update
PRO Act update
Gig-worker rule delayed
Department of Labor enforcement news
Senate HELP Subcommittee assignments
Biden Administration Labor Leadership Update
The Senate has yet to set the final vote on Marty Walsh’s nomination to serve as Secretary of Labor.
On Friday, March 5, the White House announced the following appointments:
Pronita Gupta joins the White House as Special Assistant to the President for Labor and Workers. She more recently served as director of job quality for the Center for Law and Social Policy (CLASP). Prior to joining CLASP, she served as the deputy director of the Women’s Bureau in the U.S. Department of Labor under former President Barack Obama.
Seth Harris joins the White House as Deputy Assistant to the President for Labor and Economy. He previously served as the Biden-Harris campaign’s principal labor policy advisor and a member of the Labor Department transition team. Seth was Acting Secretary of Labor and Deputy U.S. Secretary of Labor from 2009 to 2014 and served for six and one-half years in the Labor Department during the Clinton Administration.
Congressional COVID-19 Relief Package Update.
After a 50-50 vote, Vice President Kamala Harris cast the deciding vote for the U.S. Senate to take up the COVID-19 relief package (H.R. 1319) on Thursday, March 4. Senate Democratic Leader Charles Schumer (D-New York) introduced a substitute amendment to the House bill that incorporates changes sought by Democratic Senators, such as narrowing the eligibility of tax rebate checks for households and placing additional restrictions on the $350 billion aid to state and local governments. Notably, the Senate version eliminates language to raise the minimum wage to $15 an hour, complying with the Senate Parliamentarian’s ruling last week.
The Senate will have up to 20 hours of general debate on the legislation and amendments. Since Senator Ron Johnson (R-Wisconsin) objected to allowing debate to begin until Senate Democratic Leader Schumer’s 628-page amendment had been read aloud on the floor in full, the general debate did not begin until this morning. Shortly before debate began, reports emerged that Senate Democrats – moderates and progressives – had reached a deal to change the House-approved $400 weekly unemployment benefits to $300 weekly; and to extend the benefits through September instead of ending in August. Senator Tom Carper (D-Delaware) is expected to introduce the amendment later today during the so-called “vote-a-rama” floor debate. Meanwhile, Senate Democratic Leader Schumer has said the chamber will remain in session until the package is approved, which is expected to occur this weekend.
Federal Minimum Wage Update.
After Republicans introduced various alternative federal minimum wage proposals last week, reports emerged this week that the White House is examining whether to engage Republicans on efforts to raise the federal minimum wage. The White House reportedly reached out to trade groups last week to gauge their support for the initiative. White House Senior Advisor Cedric Richmond, however, did not reveal much about the White House’s next steps on this matter, saying internal deliberations are in preliminary stages and the Administration is “exploring all options.” He added,
This is not the point where you lay your whole strategy out for the world to see.”
While President Joe Biden reaffirmed a commitment for a $15 per hour federal minimum wage floor, there are signs there may be space to negotiate. Congressional aides indicate that there could be negotiations to extend the period of time over which the wage is raised and possibly include provisions for small businesses affected by higher wages for their employees. Republicans apparently are willing to have conversations about the minimum wage floor, but will likely remain firm on an e-verify mandate, such as proposed last week by Senators Mitt Romney (R-Utah) and Tom Cotton (R-Arkansas) in the Higher Wages for American Workers Act.
National Labor Review Board (NLRB) Update.
On January 20, the Biden Administration fired NLRB General Counsel Peter Robb, despite him having less than 10 months remaining on a Senate-confirmed four-year appointment. Unions began calling for Robb’s removal from the independent agency in the aftermath of the November election, pointing to his record of siding with employers in cases and his efforts to centralize control over field operations and shorten investigations.
Since his ousting, a group of employers has challenged the Administration’s move, arguing President Biden lacks legal authority to fire the NLRB’s General Counsel without cause. The NLRB’s Acting General Counsel and the AFL-CIO contend the National Labor Relations Act (NLRA) does not provide the same termination protections to the General Counsel that it provides to board members.
Acting NLRB General Counsel Peter Sung Ohr stated this week at an American Bar Association conference that he does not intend to be a “potted plant,” despite accepting the position due to Mr. Robb’s ousting. Acting General Counsel Ohr, who was elevated from the Chicago regional director position, has suggested that he intends for the NLRB to focus on projects such as assessing the agency’s resources and developing a spending plan, along with guidance on the scope of labor law’s protections. A priority for Acting General Counsel Ohr is ensuring regional offices have necessary resources, including addressing staffing shortages and filling empty regional director positions. Acting General Counsel Ohr also suggested that during his tenure, he could issue a guidance memorandum regarding the NLRB’s protections for workers banding together for mutual aid. He acknowledged that Jennifer Abruzzo, a former high-ranking NLRB attorney nominated for the NLRB General Counsel position, should have the opportunity to create that list of issues that will guide the development of labor law.
PRO Act Update.
The AFL-CIO’s executive board is set to meet next week, where it is expected to firm up its position on eliminating the 60-vote filibuster, which is viewed increasingly as an obstacle to advancing key priorities for organized unions – including approval of the Protecting the Right to Organize Act of 2021 (“PRO Act”; H.R. 842). Eliminating the filibuster is a priority for progressives Nonetheless, even if organized unions back this initiative, it the initiative will not likely gain the support of the White House. Organized unions – key supporters of Democrats and President Biden – have seen victories thus far with the Biden Administration, such as the removal of NLRB’s former General Counsel and, more recently, pressing President Biden to speak out on the union election at an Amazon factory in Alabama.
For reference, the PRO Act would expand workers’ ability to join and form unions; empower the NLRB to levy fines on employers that retaliate against workers for attempting to organize; and extend collective bargaining rights to more workers, among other things. A number of major trade associations and employers oppose the PRO Act.
Gig-Worker Rule Delayed.
On March 4, the U.S. Department of Labor published a final rule in the Federal Register, delaying implementation of the Trump Administration’s last minute rule to make it easier for companies to classify workers as independent contractors. The rule was set to take effect on March 8, with employers and Republicans supporting it. In announcing the 60-day delay, the Department of Labor’s Wage and Hour Division cited the need to assess the legality of the independent contractor test. The agency could also re-propose the rulemaking process and proceed using a different approach.
Labor Department Enforcement News.
The Office of Inspector General (OIG) released a report on March 2 that reviewed the Labor Department’s response to the COVID-19 pandemic. Notably, the OIG report faulted the Occupational Safety and Health Administration (OHSA) for an overall decline in inspections, amid increased complaints, in favor of remote inspections where inspectors never actually visited worksites. The report reflected that, despite a 15 percent increase in complaints, OSHA conducted 50 percent fewer inspections. OSHA was also criticized for not having a program focused on inspections of COVID-19 high-hazard workplaces, along with not having sufficient coronavirus regulations.
Meanwhile, OSHA is expected to issue an emergency temporary standard for COVID-19 by March 15, in accordance with President Biden’s January 21 Executive Order. This move also comes as Congress is close to approving a COVID-19 relief package that includes increased funding ($75 million) for OSHA. OSHA is also expected to launch a COVID-19 national emphasis program to target workplaces with a higher potential infection exposure.
On March 1, Democratic House Education and Labor Committee leadership members wrote a letter to the Biden Administration, urging the Centers for Disease Control and Prevention (CDC) and OSHA to update ventilation and respiratory protection guidance and standards to address aerosol transmission of the COVID-19 virus. In particular, they noted recent expert findings show the CDC’s existing guidance may not go far enough to protect workers who face the greatest risk of exposure to aerosol transmission of COVID-19. They also suggested that the Defense Production Act be invoked to address any future shortages of improved respiratory protection for other at-risk workers, beyond health care employees.
Senate HELP Subcommittee Assignments.
On March 2, Senate Health, Education, Labor, and Pensions (HELP) Committee Chair Patty Murray (D-Washington) announced the subcommittee assignments.