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By Chris Opfer
Sept. 5 — Lawmakers are set to return to the Capitol next week with two related goals for the short time remaining in the congressional term—keep the government open for business and position themselves for the November election.
A new fiscal year starts Oct. 1, meaning Congress will have to find a way to pass at least temporary appropriations legislation or face a second consecutive government shutdown. Lawmakers are then expected to turn their focus to legislative branding efforts designed to draw voters' attention but unlikely to garner the bipartisan support necessary to get to President Barack Obama's desk and be signed into law.
For Republicans, that case is likely to center on a slew of tax, energy and worker flexibility measures that have stalled since passing in the GOP-controlled House and which supporters say would serve as a shot in the arm to the job market. Democrats, on the other hand, are likely to fall back on familiar middle-class-focused bills related to increasing wages, strengthening worker protections and closing tax loopholes.
All 435 House seats and 36 of 100 spots in the Senate are up for election in November. Republicans are expected to retain control of the House, but the keys to the Senate appear to be up for grabs. Although Democrats currently have a slim 53-member majority in the chamber, including two independents who caucus with the Democrats, 21 of those seats are up for election.
Should Republicans gain control of Congress, they're already signaling that they'll work through committees and the appropriations process to curb what they say is overstepping by various labor and employment agencies, including the Labor Department, the National Labor Relations Board and the Equal Employment Opportunity Commission.
In the meantime, Obama has continued to pledge to take executive action to counteract Capitol Hill gridlock. Chief among those moves is a wide-ranging, controversial immigration plan set to be announced in the coming months.
In an Aug. 8 memo to House Republicans, new Majority Leader Kevin McCarthy (R-Calif.) said he plans to bring up for a vote a single package of 43 GOP-backed jobs and economic growth bills already passed in the Congress that have stalled since being sent to the Senate.
The legislation package has since been reduced to 23 bills. It includes measures that would ease Affordable Care Act requirements (H.R. 2575), approve the Keystone pipeline extension (H.R. 3), eliminate certain energy industry and other regulations (H.R. 367, H.R. 899, H.R. 1582, H.R. 2728, H.R. 2804) and reduce employer tax burdens (H.R. 3086, H.R. 4457, H.R. 4718).
“These bills would reduce the regulatory burdens that are suffocating job growth, help small businesses access capital, and make permanent a series of tax provisions that will grow our economy,” McCarthy wrote in the memo. He added that the package is intended to “break the logjam in the Senate and draw more attention with Americans across the country to our solutions.”
“Both parties will be positioning for the election, trying to put the best face on what they've done and what they haven't done,” Donald R. Wolfensberger, the senior scholar for the Wilson Center's Congress Project, told Bloomberg BNA. “They'll try to make the case that the country is in a better position with them in power.”
House Democrats are likely to continue pushing their “Make It in America” plan, featuring a range of legislation intended to bolster the manufacturing industry and lure overseas factory jobs back to the U.S. “This is the heart of the matter,” House Minority Leader Nancy Pelosi (D-Calif.) said of the “Make It in America” plan during comments Aug. 28. “It's about creating better jobs and bringing more jobs back home.”
On the other side of the Capitol, Senate Democrats are expected to refocus the chamber's attention on so-called “pocketbook issues” like raising the minimum wage and eliminating pay discrimination. These bills have little chance of advancing beyond the procedural stage, but they will help Democrats draw a contrast with their Republican counterparts, whose jobs creation agenda largely mirrors that likely to come out of the House.
“I'm not sure if the outcome is going to be any different than the last time around,” AFL-CIO Director of Government Relations Bill Samuel said of another vote on the minimum wage bill. The legislation, which would raise the federal minimum wage to $10.10 from $7.25 in three steps, failed to garner enough support to avoid a filibuster in April. “But it's important to force members to take a stand on the issue and be accountable,” Samuel told Bloomberg BNA Aug. 12.
Between the competing messages and a rapidly dwindling number of work days, Samuel said there's not much room for bipartisan action. “It's hard to be optimistic because they are going to be here so little,” Samuel said.
The House is tentatively scheduled to meet for 11 legislative days—10 in September and one in October—before the Nov. 4 election and for an additional 15 days during the “lame duck” session after the election and before the end of the year. Senate leadership hasn't yet officially released the calendar for the coming months, but a Democratic staffer told Bloomberg BNA that chamber lawmakers are tentatively scheduled to be at the Capitol for two weeks in September before heading back to their home states in October.
A least some of that remaining time may be taken up by various foreign affairs matters, such as military activity in Iraq and Syria as well as unrest in Ukraine.
On the domestic front, government funding legislation and reauthorization of the Export-Import Bank are expected to be at the top of Congress's “to do” list in the little time that it has left before the election.
Most observers told Bloomberg BNA that they don't think either party will want to bear the political risk that would come with another shutdown. While House Speaker John Boehner (R-Ohio) and Senate Majority Leader Harry Reid (D-Nev.) have both said they don't intend to relive last year's funding stalemate, none of the 12 individual measures to keep various government agencies up and running have been passed.
Senate Appropriations Chairwoman Barbara Mikulski (D-Md.) said Aug. 11 that she plans to introduce a single omnibus spending bill in September. A short-term continuing resolution to fund the government favored by House Republicans now appears more likely, however, aides told Bloomberg BNA Sept. 3.
Regardless of how the legislation ultimately is packaged, it is likely to include an Export-Import Bank reauthorization provision. House Minority Whip Steny Hoyer (D-Md.) told reporters Aug. 12 that the bank, which provides financing and guarantees to help foreign businesses import U.S. goods, is an essential tool for encouraging exports and increasing manufacturing activity.
The bank's authorization to issue and insure new loans is set to expire Sept. 30. Hoyer said failing to reauthorize the bank would be akin to “unilaterally disarming” and would have a stifling effect on the domestic job market.
It remains unclear whether House Republican leadership can marshal rank-and-file party members to support appropriations legislation or even a short-term Ex-Im reauthorization, which some conservatives say amounts to “crony capitalism” and government meddling in the free market. If a recent dust-up over immigration legislation is any indication, Boehner and McCarthy will have their hands full.
On what was supposed to be their last day in session before the recess, the Republican leadership abruptly pulled two immigration bills from the House floor shortly before an expected vote July 31. The move came in response to concerns from some members aligned with the Tea Party who were prodded in their opposition by Sens. Ted Cruz (R-Texas) and Jeff Sessions (R-Ala.).
A day later, the House passed the measures—a $694 million spending bill (H.R. 5230) to address the influx of unaccompanied minors at the country's Southwest border and legislation (H.R. 5272) that would wind down the deferred action for childhood arrivals program—after scrambling to tweak the bills to provide more border security funding and further block the DACA program.
“You saw basically a revolt within the Republican conference against Boehner because he softened the language on the DACA bill,” Wolfensberger said, adding that similar intra-party fractures could hinder Republicans from moving on various measures in the coming months. “Cruz seems to be heading the House Tea Party Caucus,” Wolfensberger said of the senator's involvement in the House vote.
Neither measure is likely to find a receptive audience in the Senate, where a separate bill (S. 2648) to provide roughly $2.7 billion in border funding stalled July 31. It's not clear whether Reid will allow a vote on the bill as drafted or will seek to pass an amended version, including more widespread immigration measures that were part of the comprehensive legislation that the Senate passed last year. A border funding measure also could be lumped into wider-ranging government appropriations legislation.
Meanwhile, Obama is expected to announce a plan to use executive action to provide work permits allowing millions of undocumented immigrants to remain in the country legally. News of the plan, which also could include expanding DACA to cover current participants' parents and issuing more green cards for skilled workers, already has stoked criticism from Republicans and a few key Democrats facing tough re-election battles.
White House Press Secretary Josh Earnest told reporters Sept. 2 that administration officials still are reviewing their options and that the president may delay announcement of the plan until after the election. The debate also could come to a head with opponents looking to add measures blocking new spending on the permit program as part of any government funding legislation.
House Republican leadership has said it prefers to approach an immigration overhaul on a piecemeal basis, but they've made little movement to advance the set of reform principles that they released in January. Vincent Hutchings, a political science professor at the University of Michigan, told Bloomberg BNA that there's little incentive for Republicans to compromise on the issue before the midterm election.
“If they keep the House and take the Senate, they can fashion immigration legislation that's far more conservative than anything they can do now,” Hutchings said of GOP lawmakers. “In the short term, it's more likely that they're not going to do anything on this, or—for that matter—on a wide range of other issues.”
GOP members may have good reason to be confident about their election prospects, based on campaign contributions flowing to party contenders from a group that traditionally favors Democrats.
Lawyers and law firms appear to already be preparing for a shift in power in the Senate. As of Aug. 19, the share of money going from law firm political action committees to Democratic candidates is down from 70 percent in the 2010 midterm election to 56 percent so far in the current election cycle.
Richard L. Hall, who teaches political science at the University of Michigan's Gerald R. Ford School of Public Policy, says the shift in contributions shows that firms “are anticipating that Republicans are going to increase their influence in Congress.” He said the contributions are largely intended to help firms gain access to lawmakers, rather than to influence election outcomes. “They don't give money to people who they think are going to lose,” Hall told Bloomberg BNA Aug. 13.
The contribution figures are derived from Federal Election Commission filings compiled by the Center for Responsive Politics.
Much of the labor and employment action in the coming months is likely to occur at the committee level. Lawmakers on both sides of the aisle are expected to hold hearings on various bills and exercise their authority to oversee agencies like the DOL, the EEOC and the NLRB.
In addition to another vote on the minimum wage measure, Senate, Health, Education, Labor and Pensions Chairman Tom Harkin's (D-Iowa) top priorities for the rest of the year include advancing the Protecting Older Workers Against Discrimination Act, according to a committee staffer. The legislation would undo recent U.S. Supreme Court precedent to allow workers to bring age and disability discrimination cases using a “mixed motive” theory, without showing that discrimination was the sole reason for a challenged decision.
Harkin and Rep. George Miller (D-Calif.), the ranking Democrat on the House Education and the Workforce Committee and the sponsor of an identical bill in that chamber, are both slated to retire at the end of the year. Miller told Bloomberg BNA Sept. 4 he also hopes to ramp up the pressure on Republicans to allow a vote on raising the minimum wage in his remaining months in office.
The HELP committee staff member told Bloomberg BNA that Harkin also will focus on confirming the nominations of Sharon Block to resume her post as a member of the NLRB and David Lopez as the EEOC's general counsel. The committee is scheduled to consider the Block nomination in a Sept. 9 hearing.
The nominations are expected to clear the Senate, where current rules require only a majority vote to confirm a nominee. Randy Johnson, the U.S. Chamber of Commerce's senior vice president of labor, immigration and employee benefits, nevertheless told Bloomberg BNA Aug. 21 that a handful of recent NLRB decisions may increase the scrutiny on Block.
“Never say never in the Senate,” Johnson said of the Block appointment. “I think people will take a close look at the nomination and see what can be done.”
In particular, Johnson said the Chamber strongly opposes NLRB General Counsel Richard F. Griffin's July 29 decision to authorize regional directors to issue complaints alleging that McDonald's USA LLC is a joint employer—along with individual franchisees—of restaurant workers, under the National Labor Relations Act.
The Chamber also is concerned, he said, about a June decision in which the board recognized what observers have called a “micro-unit” for bargaining purposes consisting of 41 workers in the cosmetics and fragrance department of a Massachusetts Macy's store.
“The employer community feels like it's under siege,” Michael Lotito, co-chair of Littler Mendelson's Workplace Policy Institute, told Bloomberg BNA Aug. 8. He said he expects to see legislation introduced to undo some of these decisions, including a measure to change the NLRA's definition of an “employer” to exclude franchisers.
Although the legislation would likely face an uphill climb, Lotito said it's important to start a conversation about reining in the board. “A piece of legislation that is seen to be wild, crazy messaging might not be seen the same way five or 10 years from now,” Lotito said. “You have to start the message somewhere.”
Ranking HELP Committee member Lamar Alexander (R-Tenn.) already has signaled that he'll focus on reining in the NLRB and trimming labor protections that he says are bad for business if his party takes control next year. He's repeatedly said the board operates as an “advocate” for labor organizations, rather than an “umpire.”
A Republican HELP Committee aide told Bloomberg BNA Sept. 5 that Alexander is likely to introduce a bill this month that would require the board to obtain bipartisan consensus before issuing a decision. “The NLRB has whipsawed back and forth on important labor policy rules in recent years, creating confusion for employers, employees and unions,” the aide said.
Alexander has also repeatedly called for the repeal of the Davis-Bacon Act, which requires contractors to pay workers on federally funded construction projects a “prevailing wage.” He recently called the law “a handout for labor unions”.
The AFL-CIO's Samuel said Alexander's latest efforts are simply “campaign tactics” meant to send a message to his supporters. “Republican fears about the NLRB are overblown and exaggerated,” Samuel said. “The board has been doing its job: protecting workers' freedom to form unions and bargain collectively.”
Johnson said lawmakers also will continue to serve an important role in overseeing agencies through hearings and the budget process. He said he expects to see that oversight ramp up if Republicans take control of the Senate.
“If the Senate goes Republican, we expect aggressive oversight of the agencies,” Johnson said. While legislation to restrict what he characterized as heavy-handed enforcement by the agencies would still require 60 votes in the chamber, Johnson said lawmakers can get agencies' attention by holding hearings and tightening the federal purse strings.
“Aggressive oversight makes you slow down what you're doing and make sure that you can really defend it,” said Johnson, a former DOL attorney. He pointed, for example, to a recent House Appropriations Committee report in which lawmakers expressed concern about whether the EEOC was making good-faith attempts to resolve discrimination claims before resorting to the courts. The committee directed the agency report back to it about how the EEOC is ensuring that it meets this responsibility.
In particular, Johnson said lawmakers should take a hard look at the new overtime regulations that Obama instructed the DOL to develop in March, as well as the implementation of a July executive order intended to bar certain employers that have violated a variety of federal employment laws—including the NLRA, the Fair Labor Standards Act, Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act and the Family and Medical Leave Act—from competing for government contracts. The latter order also prohibits employers seeking contracts of at least $1 million from requiring workers to arbitrate Title VII claims.
Johnson said it appears that the “blacklist” order will require agency procurement officials to interpret complicated wage, hour and other employment laws to determine whether a contractor has committed sufficiently severe violations to warrant debarment. Calling the move “one more payback to the unions,” he added that labor organizations will be able to use the threat of debarment “to hammer employers into recognizing the union during a campaign through filing hundreds of charges with enforcement agencies against the targeted employer.”
At the same time, Congressional Progressive Caucus members have successfully added similar contracting bans to five different House appropriations measures. Democrats are likely to look to keep those provisions in any government funding legislation that comes up this month.
Samuel said he expects the Block nomination to clear the Senate during the lame-duck period, regardless of the election outcome. Much of what else happens during that time, however, is likely to depend on the results at the ballot box.
“There's a good chance that if Republicans do pick up a majority in the Senate—and I think that's a better than 50-50 proposition at this point—that no one in the party is going to be really anxious to move on anything in the Senate,” Wolfensberger said. “They'll assume they can get a better deal after the lame duck session.”
Samuel, similarly, said it's safe to assume that there won't be much activity on the actual lawmaking front. “This is one of the least productive Congresses in history,” Samuel said. “That's not going to change between now and the end of the year. If anything, they will solidify that ranking.”
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