From our Capital Thinking blog, our public policy colleague Stacy Swanson shares the latest federal employment law developments in in the legislative and executive branches during the week of September 13, 2021.

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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:

Reconciliation Package Updates
COVID-19 Updates
Federal Contract Workers’ Minimum Wage Update
Registered Apprenticeship Funding Announced
Upcoming Congressional Hearing

The U.S. Senate reconvened this week, and the U.S. House of Representatives is set to reconvene next week. Both chambers of Congress will face a busy schedule for the remainder of the month that includes addressing the U.S. debt ceiling and funding the Federal Government beyond September 30 to avert a shutdown.

Reconciliation Package Updates. While U.S. President Joe Biden and Congressional Democratic Leaders continue to advocate for Build Back Better provisions in the $3.5 trillion spending package, Senator Joe Manchin (D-West Virginia) met with the President on Wednesday to discuss paring back the spending bill his fellow Democrats are seeking to advance via the budget reconciliation process. Reports indicate Senator Manchin is aiming for a top figure of no more than $1.5 trillion, and he is asking for a work requirement for the child tax credit, which other Democrats say is a non-starter.

Meanwhile, Democrats on the House Ways & Means Committee finished marking up their sections of the $3.5 trillion spending package this week. The committee is largely responsible for developing the bulk of the “payfors” for the $3.5 trillion bill. As part of its work, the committee also advanced a provision that would renew the Trade Adjustment Assistance (TAA) program that is typically coupled with Trade Promotion Authority (TPA), which establishes U.S. trade priorities for opening new markets for American goods and services. Committee Republicans criticized the move to uncouple TAA and TPA, arguing the expansion of TAA and lack of a clear trade agenda will harm American workers and jobs.

COVID-19 Updates. Two dozen Republican State Attorney Generals warned the White House this week of impending legal challenges, if the U.S. Department of Labor’s Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) is promulgated and mandates employers with more than 100 employees require COVID-19 vaccinations or regular COVID-19 testing. South Carolina State Attorney General Alan Wilson, who led the group in sending a letter to President Biden, stated:

Regardless of how you feel about vaccines, President Biden’s edict is illegal and if the administration doesn’t change course we’ll pursue every legal option to strike it down.”

The Republican State Attorney Generals argued the COVID-19 vaccine mandate – which they characterized as an illegal edict that would upset the constitutional balance of power between the U.S. Federal Government and U.S. states – would “drive further skepticism” of the COVID-19 vaccine.  They said:

The risks of COVID-19 spread also vary widely depending on the nature of the business in question, many of which can have their employees, for example, work remotely. The one-size-fits-almost-all approach you have decreed makes clear that you intend to use the OSHA statute as a pretext to impose an unprecedented, controversial public health measure on a nationwide basis that only incidentally concerns the workplace.”

The signatories of the letter reminded that Federal Courts have fully upheld only one of 10 emergency OSHA ETS rules in recent decades, laying out legal arguments to challenge OSHA’s authority. They noted OSHA would be overreaching, stating the agency is empowered to address workplace dangers, not address a virus that is danger to society in general. The letter was signed by the State Attorneys General from Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.

Federal Contract Workers’ Minimum Wage Update. On September 16, the U.S. Department of Labor published a Federal Register notice announcing an annual update to the current Executive Order 13658 minimum wage for workers performing work on or in connection with covered contracts. The notice reflects that, pursuant to Executive Order 13658 (signed during the Obama Administration), the minimum wage rate will increase from $10.95 to $11.25 per hour effective January 1, 2022. Also effective January 1, 2022, employers must pay tipped employees performing work on or in connection with covered contracts a minimum cash wage of $7.90 per hour. Meanwhile, covered contracts that are entered into on or after January 30, 2022 – or that are renewed or extended (pursuant to an option or otherwise) on or after January 30, 2022 – will be generally subject to a higher minimum wage rate of $15 per hour established by Executive Order 14026, “Increasing the Minimum Wage for Federal Contractors,” signed by President Biden on April 27, 2021.

Registered Apprenticeship Funding Announced. On September 10, the Labor Department announced it would award up to four new contracts to Industry Intermediaries to launch, promote, and expand Registered Apprenticeship models in critical industries impacted by the coronavirus pandemic and industries that have not traditionally used apprenticeship to meet employer and sector needs. Industry Intermediaries are organizations within an industry or sub-sector serving as liaisons to employers, other industry partners, and the department’s Office of Apprenticeship to determine skill needs and workforce trends and work with employers to increase apprenticeship opportunities. The funding is to target the following sectors:

Care economy sectors serving individuals, families, the elderly, and persons with disabilities to provide community food and housing, vocational rehabilitation services, and childcare services.
Electric power generation, transmission, and distribution.
Key supply chains including semi-conductors, advanced batteries, critical minerals and strategic materials, pharmaceuticals and active ingredients, and transportation equipment manufacturing.
Transportation and logistics operations for supply chain distribution including air, rail, water, and support activities.

Upcoming Congressional Hearing. Next week lawmakers will hold the following labor-related hearing:

September 22: The Senate Health, Education, Labor, and Pensions (HELP) Subcommittee on Employment and Workplace Safety are set to hold a hearing titled, “Getting America Ready to Work – Successful on the job, apprenticeship training programs to help workers and business get ready to work.”
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