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 May 17.


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
  • More Republican States Curb Federal Pandemic-Related Unemployment Benefits
  • Republicans Introduce Legislation to Combat Unemployment Fraud
  • Resolution to Overturn Workplace Bias Claim Rule Advances in the Senate
  • Senate HELP Committee Hearing on Paid Leave Recapped
  • Pregnant Workers Bill Advances Out of the House
  • Pending OSHA Emergency COVID-19 Workplace Safety Rules | Update
  • **Upcoming Congressional Hearings**

Biden Administration Labor Leadership Updates.  Last week, the U.S. Department of Labor’s Bureau of International Labor Affairs (“ILAB”) announced Thea Lee, a former top AFL-CIO official, would lead the office.  The position does not require Senate confirmation and helps oversee enforcement related to child and forced labor concerns, as well as U.S.-Mexico-Canada Agreement (USMCA) labor provisions.

On May 27, the Senate Health, Education, Labor, and Pensions (HELP) Committee is set to hold a confirmation hearing for the following individuals:

  • Rajesh Nayak to serve as Assistant Secretary of Labor for Policy;
  • Taryn Williams to serve as Assistant Secretary of Labor for Disability Employment Policy; and
  • Doug Parker to serve as Assistant Secretary of Labor for Occupational Safety and Health.

More Republican States Curb Federal Pandemic-Related Unemployment Benefits.  More Republican-controlled states joined 14 other Republican states in announcing restrictions to Federal pandemic-related unemployment benefits, citing workforce shortages:

  • Alaska: Alaska Department of Labor and Workforce Development Commissioner Dr. Tamika Ledbetter (R) announced Alaska would end its participation in the Federal Pandemic Unemployment Compensation weekly $300 supplemental benefit on June 12, 2021.
  • Georgia: Governor Brian Kemp (R) announced Federal pandemic benefits would end on June 26.
  • Indiana: Governor Eric Holcomb (R) announced the state would end its participation in Federal pandemic unemployment programs on June 19.
  • Ohio: Governor Mike DeWine (R) announced Federal pandemic benefits would end on June 26.
  • Oklahoma: Governor Kevin Stritt (R) announced Federal pandemic payments would end on June 26, while also noting a $1,200 return-to-work incentive.
  • Texas: Governor Greg Abbott (R) announced the state would withdraw from Federal pandemic unemployment programs on June 26.
  • West Virginia: Governor Jim Justice (R) announced the state would no longer participate in federally funded unemployment programs, effective June 19.

Senate Finance Committee Chairman Ron Wyden (D-Oregon) responded again this week to the latest Republican Governors decisions, stating on May 17:

In recent days, Republican governors in Georgia, Ohio, and Texas have pulled the rug out from another 2.2 million jobless workers, costing their states nearly $14 billion.      . . .  Of course, Republicans are only cutting off economic relief to jobless workers—not businesses—showing this is all about politics and sticking it to struggling families.  I continue to call on the Labor Department to explore all avenues for continuing to provide benefits for jobless workers in all states.”

Meanwhile, Connecticut Governor Ned Lamont (D) announced the state would provide a $1,000 return-to-work bonus to its long-term unemployed residents that land full-time jobs and work for at least eight weeks.  Connecticut is not terminating its Federal pandemic unemployment benefits, but – like Arizona Montana and Oklahoma – will use Federal funds to pay its work-return incentive.

On Thursday, May 20, the Federal Reserve Bank of San Francisco  released a working research paper suggested “that the $300 weekly UI [Federal unemployment insurance] supplement currently in place has been making a small but likely noticeable contribution to job-finding rates and employers’ perceptions of worker availability.”  The paper also reflected, “Disutility from search would push job seekers to accept job offers and lower the level of reservation benefits.”  Federal Reserve Chair Jerome Powell previously stated at an event in February:  “Despite the surprising speed of recovery early on, we are still very far from a strong labor market whose benefits are broadly shared.” 

Republicans Introduce Legislation to Combat Unemployment Fraud.  On Wednesday, May 19, Senator Mike Crapo (R-Idaho), the top Republican on the Senate Finance Committee, introduced the Combatting COVID Unemployment Fraud Act of 2021.  The bill is intended to prevent fraud in COVID unemployment programs, recover fraudulently paid benefits, and provide relief for taxpayers and victims of unemployment fraud.  A House companion bill (H.R. 3268) was introduced by Ways & Means Committee Ranking Member Kevin Brady (R-Texas).

In sum, the companion bills would:

  • Require verification of identity, earnings, and prior employment of applicants prior to authorizing benefits and allows States to claim reimbursement for administrative expenses to improve identity verification;
  • Support claw back of fraudulently paid dollars by establishing the joint COVID Unemployment Fraud Taskforce and incentivize States to go after fraud by allowing them to retain 5 percent of recovered funds.
  • Provide relief to victims of unemployment fraud and identity theft by implementing protections for taxpayers and victims of unemployment fraud.

Senator Crapo and Congressman Brady sent a letter to the U.S. Department of Labor Secretary earlier this month, urging the Department to implement targeted, timely investments to stop such fraud.  Texas Governor Abbott also cited high levels of fraudulent unemployment claims as a reason for the decision that Texas would no longer participate in Federal pandemic unemployment programs.  He noted the Texas Workforce Commission (TWC) has estimated “that nearly 18 percent of all claims for unemployment benefits during the pandemic are confirmed or suspected to be fraudulent, which totals more than 800,000 claims, worth as much as $10.4 billion, if all claims had been paid.”

The Republican bill comes on the heels of Senate Democrats introducing legislation on February 10 to overhaul unemployment compensation technology systems and create one set of technology and security capabilities for all state unemployment offices.

Resolution to Overturn Workplace Bias Claim Rule Advances in the Senate.  On Wednesday, May 19, the U.S. Senate voted 50 to 48 on S.J. Res. 13 to disapprove, or overturn, a Trump Administration rule finalized on January 14 that requires the Equal Employment Opportunity Commission to turn over more information to employers during a conciliation process used to resolve discrimination disputes as an alternative to litigation.  Senate HELP Committee Chair Patty Murray (D-Washington) introduced the measure on March 23.  House Education & Labor Committee Chairman Bobby Scott (D-Virginia) introduced an identical measure in the lower chamber on the same date (H.J. Res. 33).

Democrats are using the 1996 Congressional Review Act (CRA), which provides Congress with 60 legislative days after a Federal rule is promulgated to pass a resolution to revoke it.  If the rule is overturned under the CRA, Federal Agencies are barred from issuing any regulations that are “substantially the same.”  The Senate resolution of disapproval now heads to the House, where it is expected to pass and advance to President Biden’s desk for signature.

Senate HELP Committee Hearing on Paid Leave Recapped.  At Tuesday’s hearing, Senate HELP Committee Ranking Member Richard Burr (R-North Carolina) said in opening remarks that he supports the idea of paid leave for workers, but not a one-size-fits-all family policy proposal.  He added:  “If Washington wants to come up with the idea, Washington needs to pay for it – with tax credits, subsidies, grants – at least for small businesses.”  HELP Committee Chair Murray opened by arguing in favor of establishing a national paid sick, family, and medical leave policy.  She urged lawmakers to advance the FAMILY Act (S. 248), a bill she reintroduced with Senator Kirsten Gillibrand (D-New York) to establish a paid family and medical leave program, and the Healthy Families Act (S. 1195), a bicameral bill she and Representative Rosa DeLauro (D-Connecticut) reintroduced to provide workers with paid sick days.

Pregnant Workers Bill Advances Out of the House.  Last Friday, the U.S. House of Representatives passed the Pregnant Workers Fairness Act (H.R. 1065) by a vote of 315 to 101.  The bill would require employers to reasonably accommodate workers and job applicants affected by pregnancy, childbirth, or related medical conditions.  The Senate has referred the House-passed measure to the Senate HELP Committee.

House Education & Labor Committee Ranking Member Virginia Foxx (R-North Carolina) generally praised the package, but eventually argued on the House floor against the bill, citing Democratic opposition to an amendment that would have ensured constitutionally protected religious freedom tenets.  She expressed concerns that the bill, which excluded a proffered Republican amendment, could potentially force religious organizations to make hiring decisions that conflict with their faith.

Pending OSHA Emergency COVID-19 Workplace Safety Rules | Update.  The White House is reportedly in the last stages of reviewing the emergency Covid-19 workplace safety rules from the Occupational Safety & Health Administration (OSHA).  Unions, management-side attorneys, and workplace safety experts generally expected the guidance to include a mask mandate, until the changes released last week by the Centers for Disease Control and Prevention (CDC) for vaccinated persons.  The CDC’s guidance last week indicates that “fully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”  On Monday, OSHA advised employers to follow the CDC’s new guidance for “measures appropriate to protect fully vaccinated workers.”  Typically, CDC guidelines inform OSHA rules, which has many experts believing a mask mandate will not be included in OSHA’s final emergency COVID-19 workplace safety rules.

In a statement issued on Tuesday, May 18, House Education & Labor Chairman Scott called on OSHA to protect workers from COVID-19.  He argued:

[T]he honor system does not protect workers from COVID-19 infections. OSHA’s decision to issue only voluntary workplace safety guidance throughout the pandemic – which employers could choose to adopt or ignore – resulted in deadly infection outbreaks in health care facilities, meatpacking plants, grocery stores, warehouses, prisons, and many other workplaces across the country.”  He added:  “For almost a year and a half, I have been asking OSHA to issue an Emergency Temporary Standard that secures safe workplaces for America’s frontline workers. The Biden Administration has already missed its own March 15 deadline for OSHA to issue this standard, and it is dragging its feet on a review process that has no end in sight.”

Upcoming Congressional Hearings.  Lawmakers will be in session next week and will hold the following labor-related hearings:

  • May 25: The Senate HELP Committee is set to mark-up several bills, including S. 1658, a bill to amend the Fair Labor Standards Act of 1938 to expand access to breastfeeding accommodations in the workplace, and for other purposes.
  • May 26: The House Veterans’ Affairs Subcommittee on Economic Opportunity is set to hold a hearing titled, “Veteran Employment amid the COVID-19 Pandemic.”