Situational Awareness
The Senate returns to Capitol Hill this week following its six-week August recess. While Congress was away, Senate Majority Leader Chuck Schumer (D-N.Y.) and Speaker of the House Kevin McCarthy (R-Calif.) began negotiations on a short-term spending measure to prevent a government shutdown. With funding for the federal government set to expire on October 1, lawmakers will only have 12 legislative days to complete negotiations on 12 separate spending bills unless both parties agree to a continuing resolution to fund the government through the fall.
Until the House of Representatives returns to D.C. next week, the Senate will take the next several days to prepare the 12 packages passed out of the Senate Appropriations Committee for a full floor vote, consider executive and judicial nominees and hold conversations on a supplemental disaster relief and Ukraine military assistance package requested by the White House.
Department of Labor Continues its Regulatory Agenda
The Department of Labor’s (DOL’s) Wage and Hour Division (WHD) released a Notice of Proposed Rulemaking that would amend the Fair Labor Standard Act by extending overtime protections to salaried workers earning less than $1,059 per week—about $55,000 per year. The current income threshold is $35,568, which was raised in 2019 under the Trump administration. Notably, the DOL is maintaining current regulations stipulating that employers can satisfy up to 10% of the salary level through the payment of “nondiscretionary bonuses and incentive pay (including commissions).” NCA and others have encouraged the DOL to consider changes to reflect the importance of commissions in highly seasonal occupations such as golf and tennis instruction.
The Occupational Safety and Health Administration (OSHA) released a Notice of Proposed Rulemaking that would revise existing regulations regarding who can be authorized by employees to act as representatives accompanying an OSHA compliance officer during a physical workplace inspection (also referred to as a “walkaround inspection”). Under the proposed rule, employees will be allowed to authorize either an employee or a non-employee third party (i.e. union representatives, worker advocates, attorneys, etc.) for the walkaround inspection if the compliance officer determines the third party is “reasonably necessary to conduct an effective and thorough inspection.”
OSHA also recently released a draft framework for the implementation of a protocol for the prevention of heat-related injury and illness. The framework sets a trigger for protocols to go into effect when ambient temperatures are forecast as low as 78 degrees Fahrenheit or higher or the heat index is forecast to be 76 degrees or higher. A high-heat trigger would go into effect at a forecasted 86 degrees ambient temperature or 83 degrees heat index.
NCA will provide comment on all of these measures. If you would like to provide input, please email Joe Trauger at [email protected].
Examining the Drinking Water and Wastewater Act of 2021
The Senate Committee on the Environment and Public Works will hold a hearing examining the implementation of the Drinking Water and Wastewater Act, which was included in the Infrastructure Investment and Jobs Act of 2021. In addition to reauthorizing several Environmental Protection Agency (EPA) grant programs aimed at upgrading aging infrastructure and addressing water quality concerns, the legislation authorized new funding for communities to mitigate the impacts of climate-related flooding and droughts on wastewater and drinking water systems.
The Summer of the National Labor Relations Board
The National Labor Relations Board (NLRB) issued a decision in American Federation for Children, Inc. that would reverse the 2019 Amnesty International decision, returning to a precedent that advocacy by “statutory employees” on behalf of non-employees is protected under the National Labor Relations Act when the advocacy is beneficial for the “statutory employee.” The NLRB also reaffirmed that the immigration status of a worker is typically immaterial to their employee status under the National Labor Relations Act.
The NLRB also issued has issued a pair of decisions in Wendt Corporation and Tecnocap, LLC, that limit an employer’s ability to alter workplace conditions without first bargaining with their workers’ unions. The ruling in Wendt reaffirmed employers must preserve the status quo of a collective bargaining agreement when the union is negotiating a new agreement. The Tecnocap ruling blocks employers from making specific unilateral changes to a collective bargaining agreement when the agreement expires and a union enters negotiations on a new contract.
The NLRB currently has a 2-1 Democratic majority following the expiration of Gwynne Wilcox’s term. However, President Biden has renominated Wilcox and Senate Majority Leader Schumer has filed a cloture vote for her confirmation vote. Business leaders have expressed concerns that the White House has not yet nominated another Board member to fill a vacant Republican seat, which would bring the NLRB back to its full five-seat capacity.
September 14 Webcast: Congressional and Economic Outlook
On Thursday, September 14, at 2pm ET, Chief Economist, U.S. Chamber of Commerce Curtis Dubay and I will discuss the states of Congress and the economy as the United States’ credit rating was downgraded and another government shutdown looms. We’ll forecast what we might expect from today’s current economic conditions as well as what is happening on the Hill. Register here.