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 March 15.
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 Update
- Recap | Deputy Secretary of Labor Nominee’s Confirmation Hearing
- Age Discrimination Bill Introduced
- Unemployment Benefits Guidance
- Registered Apprenticeship Programs
- OSHA National Emphasis Program Launched
- Labor Department Workforce Change
Biden Administration Labor Leadership Update
- On Thursday, March 18, the Senate voted 68-30 to limit debate on Mayor Marty Walsh’s nomination to serve as Secretary of Labor.
- The Latest: Mayor Walsh was confirmed by the Senate on Monday, March 22, by a vote of 68 to 29. He is the last Cabinet-level official to be confirmed; Walsh was sworn-in to the position Tuesday afternoon.
Recap | Deputy Secretary of Labor Nominee’s Confirmation Hearing. On Tuesday, March 16, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a confirmation hearing for Ms. Julie Su’s nomination to serve as Deputy Secretary of Labor. In her opening remarks, HELP Committee Chair Patty Murray (D-Washington) commended Ms. Su’s record as a champion for workers, urging Senators to confirm her to the position to build on the progress of the American Rescue Plan and ensure the U.S. economy works for everyone. Chair Murray also affirmed she would continue to fight to increase the federal minimum wage, ensure all workers have paid leave, and expand access to quality, affordable child care. Additionally, she urged her colleagues to ensure all workers can exercise their right to join a union by passing the PRO Act and help end workplace harassment by passing the Be HEARD Act, which she initially introduced in 2019.
HELP Committee Ranking Member Richard Burr (R-North Carolina) noted that the country should not emulate California, criticizing Ms. Su’s record as California’s Secretary of Labor and her handling of state’s Employment Development Department (EDD). He stated, “Over $11 billion and perhaps as high as $30 billion in fraud occurred in California’s unemployment system. Even death row inmates received unemployment checks.” Other Republicans joined him in criticizing the EDD’s record under her tenure. The Senate HELP Committee has not yet set a date to vote on Ms. Su’s nomination.
Age Discrimination Bill Introduced. On March 18, House Education and Labor Committee Chairman Bobby Scott (D-Virginia) and Representative Rodney Davis (R-Illinois) led a bipartisan group in introducing the Protecting Older Workers Against Discrimination Act (POWADA), a measure to strengthen anti-discrimination protections for older workers. A 2009 Supreme Court’s decision in Gross v. FBL Financial Services, Inc. weakened protections against age discrimination under the Age Discrimination in Employment Act (ADA), requiring that plaintiffs demonstrate that age was the sole motivating factor for the employer’s adverse action. POWADA would align the burden of proof with the same standards for proving discrimination based on race and national origin. A section-by-section summary of POWADA is available here and a fact sheet here.
Unemployment Benefits Guidance. On March 16, the U.S Department of Labor issued new guidance to states implementing the provisions in the American Rescue Plan Act (ARPA) that extend Pandemic Unemployment Assistance (PUA) and Pandemic Emergency Unemployment Compensation (PEUC). The guidance confirms that the legislation extends a waiver of interest on outstanding state trust fund loans, fully funds Extended Benefits and the first week of regular Unemployment Compensation back to the beginning of 2021 and extends full funding of Short Time Compensation benefits, otherwise known as Work Sharing.
Registered Apprenticeship Programs. On March 18, the Labor Department announced the availability of approximately $87.5 million for grants to expand Registered Apprenticeships across the nation. Up to $40 million of those funds in grants will be awarded to states that implement required diversity, equity and inclusion efforts and demonstrate their commitment to adopt, expand and promote these efforts. States can apply here, for grants ranging from $2 million to $10 million.
OSHA National Emphasis Program Launched. Last Friday, March 12, the Labor Department’s Occupational Safety and Health Administration (OSHA) launched a new National Emphasis Program (NEP) focusing enforcement efforts on companies that put the largest number of workers at serious risk of contracting the coronavirus. NEP targeted inspections are set to commence on March 26; OSHA will only use remote-only inspections, if the agency determines that on-site inspections cannot be performed safely. State plans have 60 days to notify Federal OSHA of their intention to adopt the NEP.
Labor Department Workforce Change. Ms. Patricia Davidson has reportedly been rehired as Deputy Administrator for the Labor Department’s Wage and Hour Division. She left this position late in the Trump Administration after 30 years for a different Labor Department sub-agency. It is unclear whether she returns to the division as a career executive or has been converted to political status. Nevertheless, her return is another indication the Biden Administration plans to restore an Obama-era approach to wage enforcement, when employers regularly faced double damages for violations and were targeted for independent contractor misclassifications.