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 24, 2021.


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-Led States Curb Federal Pandemic-Related Unemployment Benefits
  • House W&M Republicans Introduced Paid Family Leave Bill
  • Two Workplace Bills Advance Out of Committee
  • OSHA COVID-19 Emergency Temporary Standard | Update
  • ACCSH Members Announced
  • Form T-1 Trust Annual Report Filing Rule | Public Comments Solicited
  • H-2B Visas Caps
  • Forced Labor Developments

Biden Administration Labor Leadership Updates.  On Wednesday, U.S. President Joe Biden announced his intent to nominate Ms. Gwynne Wilcox to serve as a member of the National Labor Relations Board.  Ms. Wilcox is a senior partner at the union-side labor and employment firm of Levy Ratner PC and serves as associate general counsel for the largest local of the Service Employees International Union (SEIU).

House Education & Labor Committee Ranking Member Virginia Foxx (R-North Carolina) criticized the nomination, saying:

President Biden’s nomination of Gwynne Wilcox to the NLRB deals a blow to the American workforce.  Ms. Wilcox’s track record representing unions demonstrates consistent support for radical, one-size-fits-all regulatory policies that will harm small businesses across the country and greatly diminish the rights of workers and job creators”

On May 27, the Senate Health, Education, Labor, and Pensions (HELP) Committee held its 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.

In opening remarks, Senate HELP Ranking Member Richard Burr (R-North Carolina) urged the appointees to favor pro-growth legislation and regulatory relief.  He cautioned:

It is not tax hikes, increased regulation, and doing the bidding of trial lawyers.  It’s not coercing workers into unions they don’t want to join or preventing the growth of the gig economy where workers decide their work life.”

Both chambers of Congress will be in recess next week, in observance of the Memorial Day holiday.  Lawmakers will return to Washington the week of June 7.

More Republican-Led States Curb Federal Pandemic-Related Unemployment Benefits.  This week, two more Republican-controlled states joined 21 other Republican states in announcing restrictions to Federal pandemic-related unemployment benefits:

  • Florida: The Department of Economic Opportunity announced on Monday that Florida would stop participating in the Federal Pandemic Unemployment Compensation (FPUC) program beginning June 27.
  • Nebraska: Also on Monday, Nebraska’s Department of Labor announced it would be stopping participation in the FPUC, Pandemic Unemployment Assistance (PUA), Pandemic Emergency Unemployment Compensation (PEUC), and Mixed Earner Unemployment Compensation (MEUC) programs, effective June 19.

While some Democrats have been pressing on the U.S. Department of Labor to continue to pay out PUA benefits and arguing it is mandated under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Labor Department reportedly has concluded it likely does not have such authority.  Unemployment systems are administered as a Federal and State partnership built on agreement from the States.  Senator Bernie Sanders (I-Vermont) wrote a letter to Secretary of Labor Marty Walsh on May 13, pressing the Labor Department to continue paying out the PUA benefits.  Senator Ron Wyden (D-Oregon), Chairman of the Senate Finance Committee, has suggested the Department and Biden Administration should explore avenues for continuing the benefits, while separately issuing a statement on Monday criticizing Florida’s decision.

House W&M Republicans Introduced Paid Family Leave Bill.  On Thursday, May 27, House Ways & Means (W&M) Ranking Member Kevin Brady (R-Texas) and Representative Jackie Walorski (R-Indiana) led Republican members in introducing of the Protecting Worker Paychecks and Family Choice Act, a bill that seeks to increase access to paid family and medical leave and affordable child care.  This bill was offered as a counterpoint to the Democratic-led bill – the Building an Economy for Families Act.  A section-by-section summary of the Republican bill is available here; a one-page summary here.

House Education & Labor Committee Ranking Member Foxx issued a statement in favor of the Republican bill.  She observed:

Education and Labor Committee Republicans have long recognized that successful paid leave solutions must preserve flexibility for employers while also allowing for innovative paid leave policies that benefit employees without the threat of government mandates.  That flexibility has enabled many innovative private sector initiatives covering a broad majority of American workers today, and Republicans will work for common-sense solutions to further that success.”

Representative Walorski, who serves as the top Republican on the W&M Worker and Family Support Subcommittee, argued against a Democratic bill at a subcommittee hearing on paid leave on Thursday.  She said:  “The last thing we need in the post-COVID world is tax hikes, job-killing mandates, government-run paid leave, and nationalized child care.  These are not the solutions working families deserve.”  Representative Walorski added the Democratic bill includes “massive new spending for child care with no regard for the $50 billion that was just invested.”  She further noted that Democrats are seeking to justify the new child care spending by pushing a narrative that lack of child care, not prolonged unemployment benefits, is the driving force behind the worker shortage that is threatening the U.S. economic recovery.  Representative Walorski instead pointed to a new study by the former Chair of President Obama’s Council of Economic Advisers that found that child care challenges are not the driver of continuing low employment levels, citing:  “differential job loss among parents, or even mothers specifically, accounts for a negligible share of aggregate job loss.”

Two Workplace Bills Advance Out of Committee.  On Wednesday, May 26, the House Education & Labor Committee – in a party line vote – advanced two workplace discrimination bills:  (1) the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act (H.R. 3110), and (2) the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 2062).

The PUMP for Nursing Mothers Act is seeking to ensure nursing mothers are provided time and privacy needed to express breast milk for their children while at work.  POWADA would restore legal protections for older workers to protect against age discrimination, seeking to address a 2009 Supreme Court decision in Gross v. FBL Financial Services, Inc., which set a higher burden of proof standard for workers alleging discrimination based on their age.

Ranking Member Foxx criticized the two bills advancing without incorporating Republican amendments.  She cited the following concerns:

H.R. 3110 would:

  • Treat all nursing mothers and workplaces as if they are all the same, despite known differences in employees’ needs by implementing a one-size-fits-all framework for accommodations;
  • Implement excessive and disproportionate penalties; and,
  • Expose smaller businesses to additional mandates.

H.R. 2062 would:

  • Harm older workers by abandoning Supreme Court precedent; and,
  • Further a pro-trial lawyer agenda.

OSHA COVID-19 Emergency Temporary Standard | Update.  House Education & Labor Committee Ranking Member Foxx led a letter signed by every Republican Committee Member that was sent to Labor Secretary Marty Walsh on Monday, May 24, urging him to immediately stop work on an “unnecessary and ill-advised” Occupational Safety and Health Administration (OSHA) COVID-19 Emergency Temporary Standard (ETS).

Republicans argued:

Given the latest and ever-evolving science and current state of the virus, it is unfathomable that OSHA would continue to pursue this rigid, one-size-fits-all national ‘emergency’ regulation.  Now more than ever, an ETS is a completely unnecessary response that would only tie the hands of business owners who have already taken extraordinary and unprecedented efforts to mitigate the spread of the virus in the workplace.”

They further cautioned:

It would also severely disrupt the U.S. economic recovery by forcing businesses, consumers, and workers to adhere to an unnecessary, ill-timed, and sweeping government regulation.”

ACCSH Members Announced.  On Thursday, May 27, Secretary Walsh announced the appointment of 15 individuals to serve as members on the Advisory Committee on Construction Safety and Health (ACCSH) and provide advice and assistance to the Assistant Secretary of Labor for Occupational Safety and Health in construction standards.  Members serve two-year terms and represent the interests of the public, employers, employees, and State and Federal Government.

Form T-1 Trust Annual Report Filing Rule | Public Comments Solicited.  On Wednesday, May 26, the Labor Department announced a Notice of Proposed Rulemaking to rescind the final rule on “Labor Organization Annual Financial Reports for Trusts in which a Labor Organization is Interested, Form T-1.”  Interested parties may submit written comments up until July 26.

H-2B Visas Caps.  On May 21, the U.S. Departments of Labor and Homeland Security published a joint temporary final rule making available an additional 22,000 H-2B temporary nonagricultural guest worker visas for Fiscal Year (FY) 2021 to employers.  Of the supplemental visas, 6,000 are reserved for nationals of the Northern Triangle countries of Honduras, El Salvador and Guatemala.  Starting May 25, eligible employers who have already completed a test of the U.S. labor market to verify that there are no U.S. workers who are willing, qualified and able to perform the seasonal nonagricultural work can file Form I-129, Petition for a Nonimmigrant Worker to seek additional H-2B workers.  Additional details on eligibility and filing requirements are available in the temporary final rule and the Temporary Increase in H-2B Nonimmigrant Visas for FY 2021 webpage.

Forced Labor Developments.  On Wednesday, May 26, the Office of the U.S. Trade Representative submitted a proposal to the World Trade Organization (WTO) that urges WTO Members to help address forced labor in the ongoing negotiations to curb subsidies to fishing activities, such as illegal, unreported, and unregulated (IUU) fishing.  In a statement, Ambassador Tai said of the action:

The Biden-Harris Administration is committed to fighting forced labor wherever it occurs.  We will continue to work closely with our partners and allies to promote a fair international trading system that addresses the sustainability of fisheries resources, and benefits workers and citizens around the world.”

On Friday, May 28, the U.S. Customs and Border Protection (CBP) announced it would detain imports of seafood from China-based Dalian Ocean Fishing Co., Ltd., due to forced-labor indications.  Effective immediately, CBP’s withhold-release order (WRO) is the first against an entire fleet of fishing vessels.  CBP personnel at all U.S. ports of entry will detain swordfish, tuna and other seafood harvested by vessels owned and operated by Dalian.

On Monday, May 24, CBP announced it had modified its WRO on imports of tobacco from Malawi.  Effective May 21, certain tobacco imports from Premium Tobacco Malawi Limited (PTML) will be admissible at all U.S. ports of entry.  The modification applies only to tobacco harvested by Club Growers in Malawi.  CBP previously prohibited the entry of these imports into the United States based on reasonable suspicion that they were produced using forced labor.