This is a weekly post spotlighting labor topics in focus by the US legislative and executive branches. In this issue, we cover:

  • US Federal Labor ViewpointsBiden Administration Labor Leadership Update
  • Congressional COVID-19 Relief Package Update
  • PRO Act Update
  • Labor Department Rescinds Two Rules | Joint Employer; Independent Contractors
  • Coronavirus Guidance for Miners
  • Guidance on Protecting the Federal Workforce

Biden Administration Labor Leadership Update

  • On Tuesday, March 16, the Senate Health, Education, Labor, and Pensions (HELP) Committee is set to hold a confirmation hearing for Julie Su’s nomination to serve as Deputy Secretary of Labor.
    • Republicans are likely to focus on her role as head of California’s Labor and Workforce Development Agency, which paid out at least $11 billion in fraudulent unemployment insurance claims.
  • Media reports on Friday suggest the Senate is set to vote on Marty Walsh’s nomination to serve as Secretary of Labor on March 22.

Congressional COVID-19 Relief Package Update.  Unlike previous COVID-19 relief packages, the American Rescue Plan Act of 2021 advanced this week without bipartisan support.  Republicans objected to passing the legislation using the budget reconciliation process, which allowed the Senate to advance the legislation over their unified opposition.  The Senate approved an amended version of the $1.9 trillion COVID-19 relief package (H.R. 1319) on Saturday, March 6, by a party-line vote of 50 to 49 (with one Republican Senator absent).  The House approved the Senate’s amended version on Wednesday, March 10, by another party-line vote of 220 to 211 (with one Democrat joining Republicans in opposition).  President Joe Biden signed the bill into law on Thursday, March 11, ahead of the March 14 federal unemployment benefits expiration date.

During the Friday floor debate, Senator Bernie Sanders (I-Vermont) sought to waive a point of order in order to include a provision that would have increased the federal minimum wage to $15 per hour.  However, eight Senate Democrats joined Republicans in voting against it.  While House progressives were hoping to see the increased federal minimum wage included in the package, moderates in the Democratic Caucus are not prepared to go that far at the moment.  With some Senate Republicans prepared to support a lower amount, tied with conditions, the debate will likely continue.

Senator Joe Manchin (D-West Virginia) secured a compromise last Friday that resulted in federal unemployment benefits staying level at $300 per week (rather than increasing to $400, as proposed by the House) through September 6, and those making less than $150,000 and receiving unemployment benefits will be eligible for tax relief on those benefit of $10,200.  The final bill also increases the maximum number of weeks an individual may claim benefits through regular state unemployment plus the Pandemic Emergency Unemployment Compensation (PEUC) program, or through the Pandemic Unemployment Assistance (PUA) program, to 74 weeks.  While the bill contains provisions addressing emergency federal employee leave, it does not continue the paid sick leave and paid Family and Medical Leave Act mandates on employers with fewer than 500 employees and government employers that were included in the Families First Coronavirus Response Act that expired at the end of 2020.

The measure also provides $200 million for the Wage and Hour Division, the Office of Workers’ Compensation Programs, the Office of the Solicitor, the Mine Safety and Health Administration, and the Occupational Safety and Health Administration to carry out COVID-19-related worker protection activities.  It includes $8 million to the Labor Department’s Employment and Training Administration to help carry out activities related to the unemployment compensation programs.  The bill further provides $2 billion to the Labor Department to detect and prevent fraud, promote equitable access, and ensure the timely payment of benefits with respect to unemployment compensation programs, including those extended under the Act.  One of the enumerated uses of the funds is to make grants to states administering such programs, including PUA, for the purposes described above.  These funds can also be used for building infrastructure to verify or validate the identity, implement Federal guidance regarding detection and prevention, and accelerate claims processing or process claims backlogs due to the pandemic.

According to White House Press Secretary Jen Psaki, President Biden, Vice President Kamala Harris, First Lady Jill Biden and Second Husband Doug Emhoff will travel across the country next week to promote the pandemic relief package.

PRO Act Update.   In a largely party-line vote, the House approved the Protecting the Right to Organize Act (PRO Act) on Tuesday, March 9.   Five Republicans joined Democrats in approving the measure, with one Democrat voting against it.  Ahead of the floor vote, moderate Democrats secured an amendment that would study the bill’s impact on gig workers.  The House otherwise rejected a set of amendments offered by Republicans.

The business community and major trade associations continue to advocate against the bill, raising concerns about worker privacy and restrictions on workplace communication, as well as suggesting that it will contribute to job losses.  Lawmakers from right-to-work states also oppose the bill, since it would pre-empt state right-to-work laws that guarantee no worker can be required to join a union or pay dues as a condition of employment.  Representative Mariannette Miller-Meeks (R-Iowa) characterized the PRO Act as “yet another attack on states’ rights,” during the floor debate.

Senate HELP Chair Patty Murray (D-Washington) welcomed the House approval of the PRO Act and urged the Senate to take up and pass the measure.  While organized labor is advocating for the measure, the bill is not expected to secure 60 votes in the Senate for passage.

Labor Department Rescinds Two Rules | Joint Employer; Independent Contractors.    On Friday, March 12, the Labor Department’s Wage and Hour Division published a proposed rule to undo the Trump Administration’s rule that makes it harder for businesses to be held liable as a “joint employer” when their franchisees or contractors violate the Fair Labor Standards Act (FLSA).  A federal judge invalidated part of that rule in September 2020, finding that the standard was “arbitrary and capricious” and that the Trump Administration’s definition of a joint employer conflicted with the FLSA.  The public can comment on the proposed rule through April 12.

Also on Friday, Wage and Hour published another proposed rule that withdraws or invalidates the Trump Administration’s worker classification standard finalized in January, a rule that would have made it easier for businesses to classify workers, particularly gig workers, as independent contractors.  The Labor Department noted, “While legitimate independent contractors are an important part of our economy, the misclassification of employees as independent contractors denies workers access to critical benefits and protections the law provides.”  The public has until April 12 to comment on this proposed rule.

Coronavirus Guidance for Miners.  On 10 March, the U.S. Department of Labor issued worker safety guidance to help mine operators and workers implement a coronavirus protection program and better identify risks that could lead to exposure.  The guidance contains recommendations and descriptions of mandatory safety and health standards.  However, the guidance is not a standard or regulation, and it creates no new legal obligations.  For example, it reflects operators should implement COVID-19 Prevention Programs at each mine and provides key elements for such programs.

Guidance on Protecting the Federal Workforce.  On Friday, March 5, the Office of Personnel Management (OPM) issued a Memorandum on implementing Executive Order 14003, which revoked Trump Administration orders that restricted collective bargaining, weakened federal employee unions, and made it easier to fire federal workers.  Notably, OPM Acting Director Kathleen McGettigan’s guidance to Federal Agencies stated it is “the policy of the United States to encourage union organizing and collective bargaining.”