The D.C. Download - July 2023

July 28 2023

Government, Legislative Affairs

Senate Introduces National Apprenticeship Act

Senators Tammy Baldwin (D-WI) and Lisa Murkowski (R-AK) introduced bipartisan legislation to modernize and expand apprenticeship programs. S.2122, the National Apprenticeship Act of 2023, would amend the National Apprenticeship Act of 1937 and seeks to develop apprenticeship programs in emerging industries like advanced manufacturing and renewable energy. It would invest $3.85 billion over 5 years to increase access to registered apprenticeships, youth apprenticeships, and pre-apprenticeships. The goal of the proposal is to create nearly 1 million new apprenticeship opportunities on top of the current expected growth of the apprenticeship system. Similar bipartisan legislation was introduced in the House earlier this year.

Specifically, the bill will:

• provide resources to small and medium-sized businesses to develop apprenticeship programs;
• create incentives to develop new apprenticeship programs in emerging industries like clean energy, cyber security, and computer science;
• develop new grant programs to help rural communities;
• improve services for people in apprenticeship programs, so that childcare, transportation, and housing do not create barriers for people trying to land good jobs;
• make the apprenticeship application process easier;
• give resources to groups that are trying to recruit apprentices; and
• codifies and streamlines standards for registered youth apprenticeships, pre-apprenticeship, and apprenticeship readiness programs.

The Senate Health, Education, Labor and Pensions Committee is hoping to consider the legislation before Congress leaves on its annual August Recess. 

House Oversight Committee Marks Up FOCA Act

The House Oversight and Accountability Committee approved H.R. 1209, the Fair and Open Competition (FOCA) Act. The legislation’s sponsor claims that the bill would ensure “neutrality” in Federal construction contracts for federally supported construction projects by ensuring that contractors are not required or prohibited from making agreements with labor organizations or discriminate or give preference to those who refuse to work with labor organizations. In reality, if enacted, this legislation would prohibit the use of Project Labor Agreements on Federally supported construction projects. 

TAUC and the Construction Employers of America (CEA) sent letters to Chairman James Comer (R-KY) and Ranking Member Jamie Raskin (D-MD) opposing the legislation prior to the mark-up.

The legislation was reported favorably to the full House on a party line vote of 22-20 with all Republicans voting in favor and all Democrats voting against. It is not clear when or if this legislation will be considered by the House. Companion legislation introduced in the Senate is unlikely to advance.

DOL Announces New Rule Expanding Submission Requirements for Injuries

The U.S. Department of Labor (DOL) announced a final rule that will require specific employers in certain high-hazard industries to submit injury and illness information electronically to the Occupational Safety and Health Administration (OSHA). The rule will take effect on January 1^st, 2024, and would require companies with 100 or more employees to submit their Form 300-Log of Work-Related Injuries and Illnesses and Form 301-Injury and Illness report to OSHA annually.

OSHA will publish some of the reported information on their website to allow employers, employees, and customers to make better decisions on what companies they work with.

Senate HELP Committee Markup Held for PRO Act

On Wednesday, June 21^st, 2023, the Senate HELP committee approved S. 567, the Richard L. Trumka Protecting the Right to Organize Act of 2023 (PRO Act). The legislation, which would make significant changes to dozens of labor laws, was reported favorably to the full Senate on a 11-10 vote.

Changes in the bill to existing labor law include: 

• authorizes “card check” organizing;
• repeals restrictions on secondary boycotts and common-situs picketing;
• allows intermittent strikes;
• imposes mediation and binding arbitration;
• grants the NLRB the power to levy civil fines on employers that violate labor law;
• establishes joint employer status change could alter well-settled subcontracting practices in the construction industry; and
• restores the multifactor economic reality test for determining employee status, which was weakened by a Trump Administration rulemaking.   

Rep. Bobby Scott (D-VA) has reintroduced the PRO Act in the House.

Julie Su Nomination In Peril

Julie Su’s nomination for Secretary of Labor took another blow when Senator Joe Manchin (D-WV) announced publicly that he would not back her nomination. Manchin announced that he believed Su was too progressive to forge necessary compromises between labor and industry. The Biden Administration was quick to respond to the announcement, saying they hoped Senators Joe Manchin and Kyrsten Sinema (I-AZ) would reconsider their positions. Senator Sinema has not made a public statement about Su’s nomination as of this writing. Senator Manchin’s opposition could prove the deathblow for Julie Su’s nomination. Republicans are expected to universally reject her nomination, although the Biden administration remains hopeful that they can win the support of Senator Lisa Murkowski (R-AK), who opposed her nomination when it came before the Senate HELP committee in April. Senator Jon Tester (D-MT) has also not announced publicly whether he would support Su’s nomination.

With so much in flux, Senate Majority Leader Chuck Schumer (D-NY) has not announced when he will bring Su’s nomination to the Senate floor for a vote, leaving the Department of Labor (DOL) without a confirmed secretary since March. This has left questions open regarding the timing and the ability of DOL to finalize important regulatory actions such as its update to the Davis-Bacon Act and employee classification determination under the Fair Labor Standards Act.

House Republican Appropriations Bill Includes Significant Cuts to DOL

House Republicans released the draft text for their Labor-HHS-Education spending bill for Fiscal Year 2024. The draft text would see significant cuts to the Department of Labor, which would receive $9.8 billion in discretionary funding, representing a $4 billion cut from Fiscal Year 2023 levels and $5.7 billion less than the Biden Administration requested in their budget. The House bill would also eliminate funding for several Department of Labor programs and reduce funding to labor law enforcement agencies by 18 percent.

In the House bill, the Occupational Safety and Health Administration would receive $537 million, a $95 million cut and the Wage and Hour Division would receive $185 million, a $75 million cut.

The House Labor-HHS-Education bill is one of two remaining bills still waiting for a full committee markup, although committee leadership is hoping to hold the markup before the August recess.

The Senate has also not marked up their Labor-HHS-Education spending bill, but they are also planning on holding a markup before the August recess. As of this writing, the Senate has not released the bill text for their Labor-HHS-Education bill but is expected to avoid the significant cuts from the House bill by including the funding levels agreed to in the debt ceiling negotiations.

House Committee on Education and the Workforce Holds Hearing on Wage and Hour Division

On Tuesday, July 18^th, 2023, the House Committee on Education, and the Workforce held a hearing, entitled “Cutting Corners at WHD: Examining the Cost to Workers, Small Businesses, and the Economy.” The hearing focused on four specific Department of Labor Wage and Hour Division (WHD) proposed rulemakings, including an independent contractor’s standard under the FLSA and an update to Davis-Bacon regulations, changing regulations on tipping, and increasing the minimum wage to $15 for federal contractors or any business that contracts with the federal government.

The CEA submitted a letter to the hearing record supporting DOL’s efforts on Davis-Bacon and Worker Misclassification rules and calling for stronger enforcement.  

DOL Announces New Safety Rules for Construction Workers

On Wednesday, July 19^th, 2023, the U.S. Department of Labor announced a notice of proposed rulemaking (NPRM) to clarify the personal protective equipment (PPE) standard for the construction industry. Current rules do not ensure that PPE fits all employees properly. The new rule would clarify that PPE must fit all employees properly to ensure they are protected from occupational hazards. The new language would align with language that the OSHA already uses for their general industry and maritime standard. OSHA does not expect the new regulation to pose a cost to employers. Comments on the rulemaking must be submitted by September 18^th, 2023.