Thank you to Brandon Roman and the team at Squire Patton Boggs (US) LLP for this report.
Biden Administration Labor Leadership Update
On Monday, March 22, the Senate voted 68 to 29 to confirm Mayor Marty Walsh as the next Secretary of Labor. He is the last Cabinet-level official to be confirmed by the Senate and was sworn-in on Tuesday afternoon. In a statement issued Monday, Secretary Walsh noted:
“As the son of immigrants and a former union laborer, I share their deep commitment to building an economy that works for all. I have been a fighter for the rights of working people throughout my career, and I remain committed to ensuring that everyone – especially those in our most marginalized communities – receives and benefits from full access to economic opportunity and fair treatment in the workplace.”
- On March 26, President Biden announced his intent to nominate Ms. Seema Nanda as Solicitor of the Labor Department. Ms. Nanda had previously served as Deputy Solicitor and Chief of Staff at the Department during the Obama Administration under then-Labor Secretary Tom Perez.
- Also on March 26, President Biden announced his intent to nominate Ms. Jocelyn Samuels to serve as a Member of the Equal Employment Opportunity Commission (EEOC). Ms. Samuels more recently served as Executive Director at the Williams Institute. Prior to that, she was the Director of the Office for Civil Rights at the U.S. Department of Health & Human Services from July 2014 to January 2017.
- This week, the U.S. Department of Labor announced Ms. Charlotte Dye would serve as Acting General Counsel for the Federal Labor Relations Authority (FLRA). Ms. Dye currently serves as FLRA’s Deputy General Counsel. The FLRA, which oversees the government’s labor relations program, has not had either a Senate-confirmed General Counsel or an Acting General Counsel since November 2017.
- On March 12, the Labor Department announced Ms. Gwendolyn Reams would serve as the U.S. EEOC’s Acting General Counsel. Ms. Reams is a longtime EEOC attorney and steps into the position after the Biden Administration fired Trump-appointed General Counsel Sharon Gustafson on March 5. President Joe Biden’s decision to fire the independent agency’s General Counsel has triggered questions about his authority to do so, and the long-term role of the EEOC’s top lawyer.
Immigration/Labor-Related Bills. Last week, the U.S. House of Representatives approved two immigration-related bills that could affect labor workforces: (1) the American Dream and Promise Act of 2021 (H.R. 6); and (2) the Farm Workforce Modernization Act of 2021 (H.R. 1603). The American Dream and Promise Act would address the tenuous status of so-called Dreamers, young people who illegally came to the United States as children, and temporary protected status (TPS) holders. The Farm Workforce Modernization Act would provide a path to citizenship for undocumented agricultural workers and improve working conditions for these workers. President Biden has said he is prepared to work with Republicans to advance these bills.
Equal Pay, Pregnancy Protections and Health Care/Social Service Worker Protections. On Wednesday, March 24, the House Education & Labor Committee advanced three bills to address gender pay disparities, establish clear-cut protections for pregnant workers, and prevent violence against health care and social service workers.
The Paycheck Fairness Act (H.R. 7) addresses pay inequity by holding companies accountable for gender-based wage disparities. This bill advanced out of Committee by a vote of 25 to 22, with no Committee Republicans supporting the bill. A fact sheet on the bill is available here. The Senate has a companion, or identical, bill (S. 205) before the Senate Health, Education, Labor, and Pensions (HELP) Committee that has no Republican co-sponsors.
The Pregnant Workers Fairness Act (H.R. 1065) is a bipartisan proposal that would establish pregnant workers’ rights to reasonable accommodations that allow them to continue working safely. Civil rights groups, workers advocates and business groups, such as the Chamber of Commerce, endorsed the bill. It advanced out of Committee by a vote of 30 to 17, with five Republicans supporting the measure. A fact sheet on the bill is available here. There is no related or companion measure in the Senate.
The Workplace Violence Prevention for Health Care and Social Service Workers Act (H.R. 1195) would provide health care and social service workers stronger workplace protections. The bill advanced out of Committee by a vote of 27-20, with two Republicans supporting it. A fact sheet on the bill is accessible here. There is no related or companion measure in the Senate.
At the conclusion of the Committee’s votes on the three bills, House Education & Labor Committee Ranking Member Virginia Foxx (R-North Carolina) said:
“Republicans offered several commonsense amendments that would have protected religious liberty, provided both employees and employers protections during salary negotiations, and supported health care and social service workers as they continue to battle COVID-19 on the frontlines.” She noted the three amendments were not approved, adding, “Democrats are fighting for flashy headlines and cheap political points, not the American people.”
Workforce Policies | HELP Committee Solicits Input. On March 25, Senate HELP Committee Chair Patty Murray (D-Washington) and Ranking Member Richard Burr (R-North Carolina) requested input from stakeholders on policy ideas related to workforce development. The Senators said they intend to work together to develop bipartisan legislation to update and expand workforce training programs, support and expand the National Apprenticeship Act, and encourage innovation. They intend to move forward with legislation in early summer. Therefore, interested parties have until April 9, 2021 to submit comments to the Committee.
Specifically, Senators Murray and Burr would like to hear proposals from stakeholders about:
- how to enhance or improve workforce training in direct relation to the COVID-19 pandemic and economic recovery, including ways to address workforce needs of the health care and public health sectors;
- reforms to programs authorized under the Workforce Innovation and Opportunity Act;
- ways to develop, modernize, and diversify the national apprenticeship system, including innovative approaches such as youth apprenticeship and pre-apprenticeship; and
- strategies to encourage innovation to address worker and industry needs.
Farmworkers | Outreach, Education, and Enforcement Initiative. As part of National Farmworker Awareness Week (March 25-31), the Labor Department’s Wage and Hour Division launched a nationwide education, outreach, and enforcement initiative to ensure workplace protections for these workers. The initiative includes efforts to ensure that farmworkers and their advocates understand their rights and to contact the Division to file a complaint if violations occur. The effort also focuses on educating growers, farm labor contractors, other agricultural employers and industry stakeholders to ensure that they understand their responsibilities. The compliance component of the initiative seeks to reduce agricultural industry violations through enforcement. In addition to recovering back wages and assessing penalties, when appropriate, the Division can suspend, revoke or withhold renewal of contractor’s farm labor certificates after multiple violations of the Migrant Seasonal Protection Act. The Division can also debar H-2A employers that fail to comply with program requirements from participation for up to three years.
Tipped Workers Final Rule. On March 23, the Department of Labor announced two Notices of Proposed Rulemaking (NPRM) related to tipped workers as the effective date approaches for the “Tip Regulations Under the Fair Labor Standards Act” final rule published in December 2020. At the end of February, the Department issued a rule to delay the effective date of the 2020 final rule until April 30, 2021, to provide additional time to consider issues of law, policy and fact. In light of the review, several portions of the 2020 Tip Final Rule implementing the 2018 Consolidated Appropriations Act will go into effect, including:
- A prohibition on employers, including supervisors and managers, keeping tips received by workers, regardless of whether the employer takes a tip credit, which effectively establishes protections for tipped employees; and
- The ability of an employer that does not take a tip credit to include non-tipped workers, such as cooks and dishwashers, in nontraditional tip-sharing agreements.
The first NPRM proposes to withdraw and re-propose portions of the rule that narrow the circumstances in which the Department can assess civil money penalties for violations. It also solicits public comments on whether to revise the portion of the 2020 Tips Final Rule that addresses “managers or supervisors” to better understand those who also engage in tipped work. The public comment period ends on May 24, 2021.
The second NPRM proposes to extend further the effective date of three portions of the 2020 Tip final rule to December 31, 2021. This includes two portions of the final rule that address the assessment of civil money penalties and the portion that addresses the application of the Fair Labor Standards Act (FLSA) tip credit to tipped employees who perform both tipped and non-tipped duties (i.e., dual jobs). The Department argues the additional eight-month extension would allow it to evaluate additional information about the questions raised by these portions of the 2020 Tips Final Rule. Interested parties have until April 14, 2021, to submit comments.
EEOC Conciliation Rule. On March 23, House Education & Labor Committee Chairman Robert “Bobby” Scott (D-Virginia) and Senate HELP Committee Chair Murray filed resolutions of disapproval against the EEOC “conciliation” rule that went into effect February 16, 2021. They cite the following concerns about the rule, it:
- gives employers unfair advantages in litigation by allowing them premature access to information about the worker’s case,
- increases the risk of retaliation by making it easier for employers to demand the identities of victims and witnesses, and
- is expected to increase backlogs of cases due to burdensome new process requirements.
Thank you to Brandon Roman and the team at Squire Patton Boggs (US) LLP for this report.
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