On December 3, 2021, President Biden signed a bill into law to avert a government shutdown. The short-term funding package funds the government until February 18, 2022. After returning from the holiday recess, lawmakers have restarted negotiations to enact a measure funding the government for the remainder of the fiscal year. Additionally, Congress passed a $2.5 trillion debt limit increase, which allows federal borrowing to continue until the end of the year.
Just before the holiday recess, Senator Joe Manchin (D-WV) announced that he no longer supports efforts to negotiate the House-passed $1.75 trillion Build Back Better reconciliation package. The announcement caught the White House and congressional Democrats off guard and effectively precluded the Build Back Better Act from advancing in its current form. Manchin has signaled that he remains open to negotiating a significantly revised package in the future. However, with the looming midterms and other legislative priorities, the likelihood that the social spending package fails to clear Congress has risen substantially.
As we begin a new year in Washington, here is an exclusive update from TAUC on the policy and regulatory issues of vital interest to contractors and the union construction and maintenance industry.
Supreme Court Blocks OSHA Vaccine Mandate
On January 13, the Supreme Court struck down OSHA’s COVID-19 emergency temporary standard (ETS), which would have required firms with 100+ employees to implement vaccine mandates or frequent testing requirements. The Court allowed a similar mandate from the HHS for federally funded health care facilities to move forward.
“OSHA has never before imposed such a mandate,” the Court wrote in its 6-3 opinion. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”
In a concurring opinion, Justice Gorsuch wrote, “The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA.”
Labor Secretary Marty Walsh weighed in on the Court’s decision, stating, “I am disappointed in the court’s decision, which is a major setback to the health and safety of workers across the country. OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans.”
Walsh added, “OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID is without doubt such a danger. …Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”
NLRB Reconsiders Independent Contractor Test
On December 27th, 2021, the National Labor Relations Board (NLRB) solicited public input on whether the Board should reconsider its standard for determining the independent contractor status of workers under the National Labor Relations Act. The NLRB could overturn Trump-era guidance that made it easier for employers to misclassify workers as independent contractors, revert to Obama-era standards, or create a new paradigm. Relevant entities have until February 10th to submit comments.
NLRB General Counsel’s Secondary Boycott Memo
The NLRB General Counsel sent a memo (see Page 22) to the NLRB board urging it to loosen restrictions and, in certain cases, allow unions to engage in secondary picketing — that is, picketing third parties that are not directly involved in a labor dispute but may have a relationship with the employer. Abruzzo outlines for Board members what she believes is a distinction between illegal coercion and secondary picketing. She also states that the ban may violate the First Amendment, and that union assembly should be considered lawful “unless rebutted by clear and convincing evidence to the contrary.” Basically, she is urging the Board to consider cases involving questions of secondary picketing on a case-by-case basis. She also urged the board to expand the scope of damage assessments for illegally terminated workers. It is unclear how the board will consider her proposal.
NLRB Joint Employer Standard
The NLRB also announced that it will issue a notice of proposed rulemaking in February to establish a new standard for determining joint employment status under the National Labor Relations Act. Under the proposed rulemaking, the Board will attempt to rework its legal standard for determining when one company jointly employs another firm’s workers.
This action follows a similar rule issued by the Department of Labor in July rescinding the Trump-era rule regulating joint employer status under the Fair Labor Standards Act (FLSA).
TAUC has previously joined with the Construction Employers of America (CEA) in opposing the current standard, adopted during the Trump Administration, because it encouraged employee misclassification and undermines the competitiveness of contractors who properly classify their employees.
PBGC Special Financial Assistance Comment Period Extension
On December 6th, the Pension Benefit Guaranty Corporation (PBGC) issued a notice of request for an extension to extend the comment period relating to the new Special Financial Assistance Program for financially troubled multiemployer defined benefit pension plans (SFA). Comments were due by January 5th.
PBGC issued an interim final rule (IFR) in July to provide funding to financially imperiled funds. While the final rule is yet to be implemented, relevant entities can now submit applications for SFA assistance. The program was created by the American Rescue Plan Act of 2021.
It is unclear when PBGC will implement the final rule.
PBGC Approves First Plan to Receive ARPA Assistance
The PBGC approved the first multiemployer plan application to receive special financial assistance under the American Rescue Plan Act (ARPA). Signed into law last spring, ARPA provides financial relief to failing multiemployer pension plans. The Local 138 Pension Plan based in Baldwin, N.Y., which covers 1,723 participants in the transportation industry, will receive $112.6 million in assistance, including interest to the expected date of payment to the plan. The plan had been projected to become insolvent in 2022.
President Biden has renominated four people to serve in the Department of Labor (DOL) that failed to receive confirmation votes in 2021, including David Weil for chief of the Wage and Hour Division (WHD). Weil held the position during the Obama administration from 2014-2017. However, Weil faces a challenging road to confirmation. Last June, the Senate Health, Education, Labor, and Pensions Committee failed to advance his nomination.
Last week, several Republican senators sent a letter to the President urging the White House to withdrawal Weil’s nomination, calling Weil “hostile to employers, unproductive to the employees served by such employers, and the actions he took at the federal level were mired in costly litigation.” Moderate Democratic Senator Joe Manchin also expressed reservations about Weill, raising questions about the ability of Weil to be confirmed.
Biden also renominated Lisa Gomez to lead the Employee Benefits Security Administration (EBSA), José Javier Rodríguez to serve as assistant secretary of the Employment & Training Administration (ETA), and Susan Harthill to the Occupational Safety and Health Review Commission. Their nominations are likely to receive less opposition compared to Weil.