Workforce Challenges and the Labor Agenda under President Biden and a New Congress
ABOUT US About Us Kristen Swearingen Vice President, Legislative & Political Affairs, Associated Builders & Contractors, Inc. and Chair, Coalition for a Democratic Workplace
Maury Baskin Co-Chair, Workplace Policy Institute Littler
Paul Williams Vice President, Government Relations Argentum
2
AGENDA
The likely labor law changes What has happened already What is about to happen Why the PRO Act is such a threat to employers Can it pass? Can it be stopped? Other labor legislation on the horizon What you should do now
3
A New Era in DC: A Rare Federal “Trifecta”
•
Joseph R. Biden, Jr. - 46th President of the U.S. ⎻
“I’m going to be the strongest labor president you have ever had.” President Joe Biden, Sept. 7, 2020. See also https://www.joebiden.com.
⎻
Announced Labor Issue Focus: ⎻ Pandemic Relief ⎻ Increasing Union Membership nationwide ⎻ Applying Progressive Principles to the Workplace ⎻ Support for the PRO Act
4
Control of Congress
•
•
Senate: 50D – 50R ⎻ V.P. Harris to serve as tiebreaker ⎻ The polarization of labor law ⎻ The crucial role of the few “moderates” ⎻ Budget reconciliation v. filibuster House: 222D – 213R ⎻ LA-2, LA-5 and TX-6 open
5
The First 100 Days: What’s on Tap for Labor Issues
•
Executive Orders
•
Personnel / Nominations
•
Freezing or Rescinding Trump labor rules
•
Labor aspects of COVID-19 Relief Package
6
The First 100 Days: Labor & Employment Priorities
• •
First action: Unprecedented Jan. 20 firing of “independent” NLRB GC Early Executive Orders - 50+ in first month ⎻ ⎻
⎻ ⎻ ⎻
• •
Calling for OSHA to issue emergency standard mandating Covid restrictions on employers (due in March) Freezing Trump regulations deemed too “pro-business” (IC, JE, Diversity Training) Rescinding Trump’s diversity EO for government contractors Immigration orders (DACA, Muslims, stopping the Wall) Coming soon: Targeting federal contractors for special pro-labor requirements (blacklisting)
Nomination of Marty Walsh for DOL Secretary Designated acting leadership of DOL and key agencies (NLRB, EEOC Chairs)
7
THE NLRB: WHO IS IN CHARGE AND FOR HOW LONG?
•
Board Membership – should stay majority “R” until September 2021
•
Peter Ohr named acting GC by Biden admin
• •
⎻ Very pro-labor
Jennifer Abbruzzo nominated as new GC ⎻ Also pro-labor
Former GC Robb’s termination remains in dispute
8
Health Care Union Organizing Union organizing dropped to all time lows prepandemic; membership sunk below 7% (nationally) But 2020 saw in “uptick” in election petitions; membership increasing The combination of Covid and the Biden NLRB, with or without the PRO Act, appears likely to cause a surge in health care union organizing “Bottom up” or “Top down” organizing Issues: PPE, safety, wages, staffing, and more If the PRO Act passes, then all bets are off 9
Issues a Biden NLRB Is Likely To Revisit Later in 2021
•
Will there be another “war” on employee handbooks? (Boeing)
•
Will there be another expansion of joint employment? (Browning-Ferris)
•
Will “micro” units and “quickie” election rules be revisited? (PPC Structurals)
•
Will unions gain access to employer email systems? (Caesar’s/Rio)
•
Will employer rights to terminate abusive employees be protected? (GM)
•
Will confidentiality of workplace investigations be preserved? (Apogee)
•
Will union organizing and ULP charges return to pre-Trump levels?
•
Can the NLRB implement the PRO Act without the legislation passing Congress?
10
What Should You Do Now To Prepare For Union Organizing?
Employee Relations Audit Management training Rapid Response Tools Review your handbooks for NLRB compliance Understand the “micro-unit” threat Maintain regulatory compliance to avoid corporate campaigns 11
Occupational Safety and Health Administration (OSHA)
• •
Emergency Temporary Standard for COVID-19 is coming (new safety mandates) Guidance issued; ETS to follow
12
U.S. Department of Labor: Wage & Hour
• Trump Joint Employer Rule: Enjoined ⎻
Will Biden Administration abandon appeal?
• Trump Independent Contractor Rule: Delayed ⎻ Comments on delaying the effective date from March to May are due on February 24
• Trump Overtime Regulations – to be revisited?
13
U.S. Department of Labor: OFCCP
•
OFCCP responsible for enforcing anti-discrimination laws and affirmative action obligations for 25% of American workforce
•
Agency expected to return to tougher enforcement under Jenny Yang
•
Trump Executive Order on Diversity/Inclusion Training rescinded on Day 1
•
Trump religious exemption rule challenged and rescission rulemaking announced
14
Equal Employment Opportunity Commission (EEOC)
•
Commission should remain Republican-controlled until potentially 2022
•
Continued Emphasis on COVID (ADA, Title VII vaccination issues)
•
Conciliation Regulations Finalized
•
Religious Discrimination Guidance
•
Proposed Wellness Regulations recently withdrawn
•
ISSUES FOR BIDEN EEOC: ⎻
Likely to revisit EEO-1 pay data reporting
15
The 117th Congress
16
The First 100 Days: COVID-19 Relief
•
•
The “American Rescue Plan” – Labor Aspects ⎻
$1.9 Trillion Package
⎻
Extension and expansion(?) of Paid Leave
⎻
$15 Minimum Wage?
⎻
$1400 stimulus payments to individuals
⎻
Mandatory Hazard Pay?
⎻
Union pension bailout?
⎻
Extension of UI Benefits through Sept. 2021
⎻
National OSHA ETS?
March 14 critical deadline (when current UI benefits expire)
17
The 117th Congress: The PRO Act – What it Would Do •
Introduced Feb. 4, 2021
•
50+ changes to the NLRA;
•
Undoes 75 years of settled labor laws and rulings
•
Codifies the Obama-era joint employment, ambush election, and persuader rules
•
•
Encourages card checks over secret ballot elections
•
Takes away employer standing to contest union election petitions
•
Codifies California’s “ABC” independent contractor test
Eliminates secondary boycott protections to allow return to 1950’s union pressure tactics
•
•
Effectively bans state right-to-work laws
Massive new penalties to cripple employer resistance to organizing
• And much more
•
Prohibits arbitration class waivers
18
CAN THE PRO ACT PASS? OUTLOOK IN THE 117TH CONGRESS 2021-2022 HOUSE VOTE PROJECTIONS
2 0 2 1 - 2 0 2 2 S E N AT E V O T E P R O J E C T I O N S •
The PRO Act had 41 Senate Democrat cosponsors during the 116th Congress, including VP Kamala Harris.
Three Republicans are considered toss ups.
•
We project that the PRO Act will pass the House. The projected vote tallies differ based on certain assumptions.
A projected vote based on previously stated positions could be 46 yes votes to 54 no votes, failing to pass, even without a filibuster.
•
But pressure from the left could force the four Democrats who did not support the bill previously to switch their positions; these four are Angus King (I-ME), Joe Manchin (WV), Kyrsten Sinema (AZ), and Mark Warner (VA).
•
THE THREAT ALSO POSED BY “PIECEMEAL” BILLS
H.R. 842
207 Cosponsors (204 D’s; 3 R’s)
If all “likely” representatives vote in line with their assessments, the four vacancies are filled in time for the vote, and other factors
Advocacy efforts should focus on toss ups, likely yes and likely no votes, and the four remaining House Democrats who voted against the bill in 2020.
20
The 117th Congress: Other Labor-Related Bills
• • •
Raise the Wage Act – Introduced January 26 ⎻
Gradually increases federal minimum wage from $7.25 to $15 over 5-year span
⎻
Expands Title VII and other civil rights laws by adding sexual orientation and gender identity as protected classes
⎻
Employers would face tougher standards for claims of pay discrimination
Equality Act Paycheck Fairness – Introduced January 28 ⎻
Unlimited compensatory and punitive damages
21
The 117th Congress: Paid Leave Priorities
•
Family and Medical Insurance Leave (FAMILY) Act ⎻
Permits workers to take up to 60 days of paid time off to care for themselves or a family member
⎻
Both the employer and employee would be taxed at 0.2% of wages to be paid into this fund
⎻
•
Establishes the “Federal Family and Medical Leave Insurance Trust Fund”
Advancing Support for Working Families Act (Child Tax Credits)
22
The 117th Congress: Anti-Arbitration Priorities
•
•
•
Forced Arbitration Injustice Repeal (FAIR) Act ⎻
Invalidates pre-dispute agreements to arbitrate employment, consumer, antitrust, and civil rights matters
⎻
Prohibits mandatory pre-dispute arbitration in employment matters
Restoring Justice for Workers Act
⎻
Amends the NLRA and would prescribe relief set forth by the Civil Rights Act in civil actions
⎻
Prohibits mandatory pre-dispute arbitration of sex discrimination claims
Ending Forced Arbitration of Sexual Harassment Act
23
The 117th Congress: Other Priorities
•
Emergency Pension Plan Relief Act of 2021 (EPPRA) ⎻
•
Qualified plans could apply to receive enough Treasury Department funds to pay full benefits for 30 years
Immigration Reform ⎻
Expedited (immediate) path to citizenship for DACA recipients, immigrant farm workers and Temporary Protected Status individuals (these individuals are generally work-authorized)
⎻
All other undocumented immigrants would be eligible for green card within 5 years and citizenship in 8 years (will address approximately 11 million undocumented immigrants)
24
DON’T FORGET THE STATES AND CITIES
•
Will a new federal minimum wage create additional state and city minimum wage increases?
•
Increased focus on paid leave
•
Anticipate similar AB 5 independent contractor initiatives in states such as NY, NJ, IL, WA, and others… But Cal Prop 22 creates an alternative path
•
California AB 51 Anti-arbitration law enjoined
•
Colorado Equal Pay Transparency challenged
•
New York City Fair Work Week Appeal
•
New York City Just Cause Ordinance
•
COVID-related challenges continue
25
WHAT SHOULD YOU DO NOW?
•
Understand the Threats and Opportunities
•
Union organizing is likely to increase – prepare with a rapid response plan and management training
•
Federal government contractors and grant recipients are special targets – more training will be needed
•
Support your trade associations – like Argentum
•
Make your voices heard – Littler’s WPI and CDW can help
26
ABOUT US Audience
Q&A Kristen Swearingen Vice President, Legislative & Political Affairs, Associated Builders & Contractors, Inc. and Chair, Coalition for a Democratic Workplace
Maury Baskin Co-Chair, Workplace Policy Institute Littler
Paul Williams Vice President, Government Relations Argentum
27