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 July 12, 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:

Biden Administration Labor Leadership Updates
Budget Reconciliation Spending Package Agreed to in Principle
House Appropriations Committee Advances Labor Spending Bill
Farmworker COVID-19 Vaccination Effort Urged
Federal Funding for Workers Adversely Affected by Foreign Trade
Federal Government Advisory Regarding “Forced Labor” Supply Chain Concerns
Upcoming Congressional Hearings

Biden Administration Labor Leadership Updates. On Tuesday, July 13, the Senate voted 50 to 47 to approve Ms. Julie Su’s nomination to serve as Deputy Secretary of the U.S. Department of Labor. On Wednesday, the Senate approved Ms. Jocelyn Samuels to serve as Commissioner of the Equal Employment Opportunity Commission (EEOC) by a vote of 52-47, and Ms. Seema Nanda to serve as Solicitor for the Department of Labor by a vote of 53-46.

Budget Reconciliation Spending Package Agreed to in Principle. The rest of this month and August are expected to provide more insight into Democrats’ “two-track” strategy for enacting President Biden’s American Jobs Plan and American Families Plan. One track includes the Republican-supported physical infrastructure package, and the other is a partisan spending package centered on Democratic priorities, such as fighting climate change, increasing childcare, and raising taxes on corporations and the wealthy. The Senate is moving forward with a goal of holding a final vote on the infrastructure proposal this month (debate could begin as soon as next week). However, Senate Majority Leader Chuck Schumer (D-New York) warned last week that the Senate may have to work into its scheduled August recess to finish work on the bipartisan infrastructure bill and a budget resolution (the second initiative).

On Tuesday, July 14, Senate Budget Committee Democrats announced they had reached agreement on an overall $3.5 trillion for the spending package to advance Democratic priorities without any expected Republican support. Among other things, the package reportedly includes provisions from the Protecting the Right to Organize Act (PRO Act) (S. 420), a union organizing bill that would affect “right-to-work” laws that exist in 27 U.S. states.

The legislative text of the Senate budget resolution and reconciliation instructions have yet to be drafted. The Senate agreement reportedly includes immigration policy provisions. While progressive Democrats and Hispanic Caucus members have pushed for a pathway to citizenship for several undocumented groups, including the so-called Dreamers that were brought illegally to the United States as children and “essential workers” during the pandemic, such as farmworkers, it remains to be seen if these provisions will be included in the Senate agreement. It also remains to be seen whether any immigration policy language that ends up in the budget resolution, once drafted, will withstand the scrutiny of the Senate Parliamentarian during the budget reconciliation process.

Meanwhile, Speaker of the House Nancy Pelosi (D-California) endorsed the Senate proposal the next day, saying it includes many of House Democrats’ top priorities. She said in a letter to Democratic House lawmakers: “Our House Committees stand ready to work with the Senate, as this topline agreement is turned into legislative text.” Separately, House Ways & Means Committee Chairman Richard Neal (D-Massachusetts) issued a statement on July 14 saying he plans to push to include the Building an Economy for Families Act as “Congress prepares to consider sweeping jobs and infrastructure legislation,” arguing it provides for universal paid leave and guaranteed child care.

House Appropriations Committee Advances Labor Spending Bill. On Thursday, July 15, the House Appropriations Committee approved its Fiscal Year (FY) 2022 Labor, Health and Human Services (HHS) and Education spending bill by a 33-25 vote. Among other things, the legislation would provide $14.7 billion in discretionary appropriations for the U.S. Department of Labor, including $11.6 billion for the Employment and Training Administration and $2.1 billion for Worker Protection Agencies. Committee Chair Rosa DeLauro (D-Connecticut) said of the bill:

The increase of $1.6 billion in this bill for the Employment and Training Administration — including a total of $285 million for Registered Apprenticeships and $3.1 billion for Workforce Innovation and Opportunity Act State Grants — will enrich our nation’s workforce and create jobs, especially as our young adults move into the workforce.”

The Labor-HHS-Education bill is expected to be included in a seven-bill spending package House Democrats are planning to bring to the floor by the end of this month.   

Farmworker COVID-19 Vaccination Effort Urged. On Thursday, July 15, Representative Raúl Grijalva (D-Arizona) reportedly led 35 Members of Congress in a letter to Health and Human Services (HHS) Secretary Xavier Becerra and Centers for Disease Control and Prevention Director Rochelle Walensky urging them to facilitate a summer campaign to increase the vaccination rate within the rural farmworker community through a collaboration between the CDC, states, localities, and Migrant and Seasonal Head Start network. The Members stated:

We are asking HHS to act swiftly and decisively in launching this effort with the goal of successfully reaching a 75% vaccination rate among farmworker families by September 30, 2021.”

Federal Funding for Workers Adversely Affected by Foreign Trade. Also on Thursday, the U.S. Department of Labor announced $92.6 million in funding to 47 states to provide training and employment services to eligible workers affected adversely by foreign trade.  U.S. Secretary of Labor Marty Walsh said of the action:

Today’s announcement provides much-needed funding to train and support workers whose employment was affected adversely by foreign trade. Helping these workers transition to new employment is critical to the nation’s equitable recovery, and serves as a reminder to Congress of the urgent need to reauthorize Trade Adjustment Assistance [TAA] for Workers Program to ensure more workers can receive the benefits, services and training they need to connect to good jobs.”

Since Congress did not reauthorize the TAA program by its June 30 deadline, the program reverted to its previous version, referred to as Reversion 2021, on July 1. Without reauthorization, much of the TAA funding will end upon the program termination on June 30, 2022.

Federal Government Advisory Regarding “Forced Labor” Supply Chain Concerns. On Tuesday, 13 July, the Office of the U.S. Trade Representative joined the U.S. Departments of State, Treasury, Commerce, Homeland Security, and Labor in issuing an updated advisory for businesses whose supply chains (e.g., silicon and polysilicon products) run through the Xinjiang Uygur Autonomous Region (“Xinjiang”) of China. In sum, the advisory cautioned businesses to exit supply chains, ventures, and/or investments connected to Xinjiang or risk running afoul of U.S. law. Apart from potential export control violations and sanctions violations in dealing with designated persons, the advisory identifies legal risks arising from any violation of statutes criminalizing forced labor, including knowingly benefitting from participation in a venture, while knowing or in reckless disregard of the fact that the venture has engaged in forced labor; and violation of the U.S. prohibition on the importation of goods produced in whole or in part with forced labor or convict labor.

The updated guidance further details four primary types of potential supply chain exposure to entities allegedly engaged in human rights abuses in the Xinjiang region. Businesses with supply chains running through Xinjiang will need, at a minimum, to implement robust due diligence programs to ensure they do not violate U.S. laws, particularly since the Biden Administration can be expected to actively enforce U.S. laws with bipartisan oversight from American lawmakers.

Upcoming Congressional Hearings. U.S. lawmakers have announced the following upcoming congressional hearings and events:

July 20: The House Ways & Means Ranking Member Kevin Brady (R-Texas) and Representative Jackie Walorski (R-Indiana), Ranking Member of the Worker and Family Support Subcommittee, will host a virtual roundtable titled: “Building on Welfare Reform’s Success in Lifting Americans Out of Poverty – Rather Than Move Backward.”  The event will feature a discussion with former and current Republican leaders and experts on anti-poverty welfare reforms that can further improve Temporary Assistance for Needy Families (TANF) and promote personal responsibility, time limits on eligibility, and work requirements.
July 21:
The Senate Health, Education, Labor, and Pensions (HELP) Committee will hold a business meeting to consider the following nominations: (1) David Weil to serve as Administrator of the Wage and Hour Division at the U.S. Department of Labor; (2) Ms. Gwynne Wilcox to serve as a Member of the National Labor Relations Board (NLRB); and (3) Mr. David Prouty to serve as a Member of the NLRB, among others.
The House Ways & Means Trade Subcommittee is set to hold a hearing titled: “The Global Challenge of Forced Labor in Supply Chains: Strengthening Enforcement and Protecting Workers.”
The House Education & Labor Subcommittee on Workforce Protections is set to hold a hearing titled: “Phasing Out Subminimum Wages: Supporting the Transition to Competitive Integrated Employment for Workers with Disabilities.”

July 22:
The Senate HELP Committee is set to hold a hearing titled: “The Right to Organize: Empowering American Workers in a 21st Century Economy.”
The House Education & Labor Subcommittees on Workforce Investments and Health, Employment, Labor, and Pensions will hold a joint hearing titled: “Care for Our Communities: Investing in the Direct Care Workforce.”

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