Situational Awareness
Both the House and Senate are in session this week. Before the House votes on the annual National Defense Authorization Act (NDAA), which has been placed on the lower chamber’s schedule for votes this week, the Rules Committee will debate nearly 1,000 amendments filed on the must-pass package. With little progress on bipartisan legislation expected until after the November election, the NDAA provides lawmakers with a last-chance opportunity to attach, and hopefully pass, their own policy proposals. In the Senate, lawmakers will vote on Democratic-led legislation that would codify access to IVF technology.
GOP Lawmakers Introduce Measure to Block DOL Overtime Rule
Two Republican lawmakers—Rep. Tim Walberg (R-Mich.) and Sen. Mike Braun (R-Ind.)—introduced a joint disapproval resolution under the Congressional Review Act (CRA) that would block the Department of Labor’s (DOL) overtime rule from taking effect. The final rule would expand overtime pay eligibility to millions of workers by raising the exemption threshold annual salary to $43,888 beginning on July 1, 2024, and $58,656 beginning on January 1, 2025. The salary threshold would be automatically updated every three years beginning July 1, 2027, based on current earnings data.
The CRA allows lawmakers to overturn agency rulemaking, but the actions must also be signed by the president. This makes it nearly impossible for GOP lawmakers to successfully invalidate DOL’s latest batch of rulemaking. Most recently, the president vetoed a bipartisan resolution that sought to overturn the NLRB’s joint employer standard that had passed the Senate with the help of three lawmakers who caucus with Senate Democrats.
New Lawsuits Filed to Overturn DOL Overtime Rule
Two separate lawsuits were filed last week by software company Flint Avenue and the state of Texas, contending that DOL’s final overtime rule is arbitrary and capricious and that the DOL lacked the authority to issue the change. Notably, Texas’ lawsuit filed in the Eastern District of Texas also makes the argument that the rule impedes on powers reserved to states only. The lawsuit filed by Flint Avenue alleges that the overtime rule was improperly issued by Acting Labor Secretary Julie Su because she hasn’t been confirmed by the Senate.
In late May, a coalition of business groups that includes the National Federation of Independent Businesses filed a lawsuit in the Eastern District of Texas requesting that the court vacate DOL’s overtime rule. The coalition argues that a prior ruling in 2017 that struck down an Obama administration overtime proposal provides legal precedence demonstrating how the Biden administration regulation exceeds DOL’s legal authority under the Fair Labor Standards Act.
Biden Announces New Nominee to Join Worker Safety Appeals Panel
The White House announced that President Biden nominated former NLRB attorney Mark Eskenazi to the Occupational Safety and Health Review Commission, an independent federal agency created by Congress to decide contests of citations or penalties that OSHA issues to employers following workplace inspections. If confirmed by the Senate, Eskenazi would fill the third commissioner position, which has been vacant since 2021. The commission currently operates with a single member serving as chair. Last summer, the president nominated Amanda Wood Laihow for a second term after her first term expired in the spring. She has not yet received a Senate confirmation vote.
While OSHA isn’t expected to finalize rulemaking that would establish a proposed federal heat standard before the fall, the agency has conducted heat-related inspections under its National Emphasis Program – Outdoor and Indoor Heat-Related Hazards, which was launched in 2022. With temperatures nationwide beginning to reach dangerous levels, a new flurry of enforcement activities could occur in the coming months. Filling the two vacancies would bolster employers’ appeals of any workplace protection violations issued by OSHA.
House Ed. and Workforce Hearing on NLRB Overreach
On Wednesday, the House Committee on Education and Workforce Subcommittee on Health, Employment, Labor, and Pensions will hold a hearing titled “NLRB Overreach: Trampling on Workers’ Rights and Fostering Unfairness.” In a press release announcing the hearing, Subcommittee Chair Bob Good (R-Va.) said that under the leadership of Chairwoman Lauren McFerran, the NLRB has “fallen into total disarray” and undermined employees’ free choice.