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 October 25, 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 Spending Measure/Infrastructure Package Updates
U.S. Economy Update
COVID-19 Vaccine Employer Mandate Updates
Other General COVID-19 Updates
Labor Department Confirmation Updates
Tipped Worker Final Rule Published
Republicans Challenge NLRB
Upcoming Congressional Hearing

Both chambers of the U.S. Congress were in session this past week and will be in session next week. On Thursday, the U.S. House of Representatives failed to move forward on a planned vote on the $1.2 trillion bipartisan infrastructure bill.  The chamber instead advanced a bill that extended highway programs until December 3. The Senate followed suit, unanimously approving the highway bill extension and thereby averting another furlough of Federal transportation officials. December 3 is also the date on which current funding for the Federal Government will lapse, and the date by which the Treasury Department has projected that Congress must act to avert a U.S. Government default on its debt obligations.

Reconciliation Spending Measure/Infrastructure Package Updates. On Thursday, October 28, U.S. President Joe Biden announced Democrats had largely agreed on a framework of a $1.75 trillion Build Back Better Act that includes investments in childcare, early education, housing, home care, climate change and the child tax credit. House Democrats released initial text of the bill (H.R. 5376) later that day. It did not include any family paid leave provisions that the President and other Democrats had sought to initially include. Notably, portions of the bill have yet to be drafted, and the Senate Parliamentarian will need to be consulted on provisions under the so-called “Byrd Rule”, since the bill will move via the budget reconciliation process.

Among other things, the framework would appropriate $40 billion for workforce development, $60 billion less than the White House initially proposed. The framework would provide two years of free preschool; provide and expand access to high-quality home care for older Americans and people with disabilities; and ensure about 35 million families continue to receive the expanded Child Tax Credit. It does not include reauthorization of Trade Adjustment Assistance (TAA), which helps workers that lose jobs due to trade deals find new work. The framework also does not mention unemployment insurance reform, which was included in the President’s American Families Plan.

At this time, there are no specific pro-union provisions, such as from the Protecting the Right to Organize (PRO) Act ­– namely language giving the National Labor Relations Board (NLRB) sharper teeth and empowering it to conduct union elections online – in the framework or the House bill text, but this could change and would be subject to the Byrd Rule. Text of the House bill, thus far, includes $707 million for the Occupational Safety and Health Administration (OSHA) for enforcement, standards development, State plans, and other purposes. The bill includes $350 million to “rebuild capacity” at the NLRB. The House bill would provide $1 billion over five years for apprenticeship programs; and $5 billion for industry or sector partnership grants. The House bill also includes language to adjust civil monetary penalties as follow:

Amends the Occupational Safety and Health Act of 1970 to increase the maximum penalty to $700,000 for willful and repeat violations; increase the minimum penalty to $50,000 for willful violations; and increase the maximum penalty for both serious and failure-to-abate violations to $70,000;
Amends the Fair Labor Standards Act of 1938 to increase the maximum civil penalty to $132,270 for child labor violations; $601,150 for child labor violations that cause the death or serious injury of an employee under the age of 18; $20,740 for willful or repeated minimum wage or overtime violations; and $11,620 for tip violations; and
Amends the Migrant and Seasonal Agricultural Worker Protection Act of 1983 to increase the maximum civil penalty for violations of the law to $25,790.

Meanwhile, Progressive Democrats continue to insist the infrastructure bill must advance in tandem with the Build Back Better Act, especially since Senators Joe Manchin (D-West Virginia) and Kyrsten Sinema (D-Arizona) have not directly stated they would vote for the spending package, nor did they rule out any attempts to make further changes to it. Bernie Sanders (I-Vermont) has also held off on offering a full endorsement.

Given the narrow majority in both chambers of Congress, it remains to be seen if Democrats will remain unified in both chambers in order to advance their social spending bill, without any Republican support. Ahead of his trip to Europe, President Biden reportedly told the Democratic Caucus:

I don’t think it’s hyperbole to say that the House and Senate majorities and my presidency will be determined by what happens in the next week.”

U.S. Economy Update. On Thursday, the U.S. Department of Commerce reported the American economy slowed to a two percent annual rate in the third quarter, amid the Delta variant surge and increasing supply chain disruptions and inflation. This is the weakest quarterly expansion since the recovery from the pandemic recession began last year. Nevertheless, economists remain hopeful that the fourth quarter annual growth rate will rebound, possibly to four percent, as infections from the Delta variant subside, vaccination rates increase, and Americans spend ahead of the upcoming holidays. However, this also presumes another variant, or sub-variant, does not take hold, as temperatures drop across the world.

COVID-19 Vaccine Employer Mandate Updates. OSHA’s emergency temporary standard (ETS) on vaccine mandates for private sector employers with more than 100 employees appears to be on track to be released publicly next week. Reports indicate the ETS may allow employers to have unvaccinated employees pay for required weekly tests and masks, with some exceptions, such as where a worker qualifies for a vaccination exemption under Federal law. Meanwhile, reports also indicate the business community has been meeting with officials in the Office of Management and Budget (OMB) and pressing for the start date of the mandate be moved until after the holiday season. They warned the mandate could exacerbate labor shortages and contribute to additional supply chain disruptions.

On Thursday, Florida Governor Ron DeSantis (Republican) announced the state had filed suit against the Federal Government over its COVID-19 vaccine mandate for Federal contractors. The lawsuit contends the President lacks authority to issue the mandate and the mandate violates procurement law. The state is seeking an immediate injunction to the rule, which is scheduled to take effect on December 8.

Ahead of the Federal contractor vaccine mandate deadline, some companies are hiring to offset anticipated workforce losses. For example, Northrop Grumman is hiring in anticipation of a loss of workers related to the Federal vaccine mandate. The U.S. Navy is also facing potential labor shortages in its shipbuilding sector, as some workers in Maine, Mississippi and Virginia have been protesting and have pledged they will not get vaccinated, which will result in them losing their jobs. Notably, Navy shipbuilding plans are already under stress from years of production delays.

Other General COVID-19 Updates. The U.S. Food & Drug Administration (FDA)’s vaccine advisory panel began considering data from Pfizer/BioNTech on clinical trials involving their lose dose COVID-19 vaccine for children under the age of 12, culminating in a decision this week that endorsed the shot for children. However, the U.S. Centers for Disease Control and Prevention (CDC) advisory panel has yet to act similarly. Separately, on Monday, Moderna reported its COVID-19 vaccine is safe and efficacious for children ages 6 to 11 years old who receive two half doses. In addition, a new study published on Wednesday found that fluvoxamine, an antidepressant, could potentially reduce the number of COVID-19 patients requiring urgent medical care.

On October 25, President Biden issued a Proclamation revoking existing country-specific suspensions and limitations on entry and implementing a world-wide COVID-19 vaccination requirement for foreign nationals – with entry into the United States beginning on November 8 – with very limited exceptions. The travel industry has been advocating for the Biden Administration to lift the travel restrictions on foreigners, which have been in place since March 2020. Airlines will be required to check travelers’ vaccination status before they can board planes bound for the United States.

Labor Department Confirmation Updates. On October 25, the Senate confirmed Doug Parker by a vote of 50 to 41 to serve as the next OSHA Administrator. House Education & Labor Ranking Member Virginia Foxx (R-North Carolina) issued a statement after his confirmation, saying:

I am deeply concerned with Doug Parker’s ability to run OSHA. He was a key architect of the controversial and discredited COVID-19 Emergency Temporary Standard in California, which placed dozens of unworkable and bewildering new mandates on employers that often conflicted with current science and did nothing to improve workplace safety outcomes. Now he will be in charge of implementing President Biden’s coercive national workplace vaccine-and-testing mandate, which will have a devastating impact on workers, business owners, and our economy. His track record suggests that instead of following the science, he will follow in the Biden administration’s footsteps by creating uncertainty and confusion through politicized policy.”

 On Tuesday, October 26, the Senate Health, Education, Labor, and Pensions (HELP) Committee voted 11-11 on Jose Rodriguez’s nomination to serve as Assistant Secretary of Labor for Employment and Training; and advanced Larry Turner’s nomination to serve as Inspector General of the Department of Labor by voice vote. With a tie vote, Senate Majority Leader Chuck Schumer (D-New York) must next schedule an extra vote by the full Senate to discharge Rodríguez’s nomination out of the panel, extending the confirmation process. At this time, there is no timetable by when this could happen.

Tipped Worker Final Rule Published. On Friday, the U.S. Department of Labor published a final rule that withdraws one portion of the Tip Regulations under the Fair Labor Standards Act of 1938 (FLSA) and finalizes its proposed revisions related to the determination of when a tipped employee is employed in dual jobs under the FLSA. The Department clarified that an employer may only take a tip credit when its tipped employees perform work that is part of the employee’s tipped occupation. Work that is part of the tipped occupation includes work that produces tips as well as work that directly supports tip-producing work, provided the directly supporting work is not performed for a substantial amount of time.

Republicans Challenge NLRB. On October 27, House Education & Labor Committee Ranking Member Foxx, Senate HELP Committee Ranking Member Richard Burr (R-North Carolina), Representative Rick Allen (R-Georgia), and Senator Mike Braun (R-Indiana) sent a letter to NLRB Chair Lauren McFerran concerning NLRB Member David Prouty’s “improper swearing-in,” which they noted resulted in 25 days at work without a presidential commission. They requested documents and explanations related to the scope of Mr. Prouty’s activities while working at the NLRB prior to receiving a presidential commission.

Upcoming Congressional Hearing. On Thursday, November 4, the House Education & Labor Subcommittee on Health, Employment, Labor, and Pensions is set to hold a hearing titled, “Closing the Courthouse Doors: The Injustice of Forced Arbitration Agreements.”

Employment Law Worldview