Congress Faces Uncertain Future Looking to Erase Some of the Past

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Tyrone Richardson

Lawmakers return from a two-week recess April 24 to face a possible government shutdown and a growing sense of urgency to swiftly confirm labor secretary-designate Alexander Acosta.

Congress heads back to the Capitol four days before the federal government’s funding expires April 28. The debate over at least a temporary solution comes as President Donald Trump’s administration forges ahead with deregulation efforts and belt-tightening plans at the Labor Department and other agencies.

Meanwhile, the GOP-controlled Senate is inching along toward confirming Acosta in the coming days. That could set the stage for other nominations to leadership posts at the DOL, the Equal Employment Opportunity Commission and the National Labor Relations Board.

Republicans will continue to go after former President Barack Obama’s labor agenda, starting with an expected House markup of legislation that would allow employers to offer paid compensatory time in lieu of time-and-a-half wages for overtime hours.

Lawmakers are also expected to consider blocking rules related to retirement advisers and state-run plans, DOL-funded job training programs, paid leave measures and policies to address workforce concerns in the growing gig economy.

“The committee has long led the fight against flawed policies that hurt working families and small businesses—including the fiduciary rule and joint-employer decision—and we remain committed to getting the job done,” Rep. Virginia Foxx (R-N.C.), the chairwoman of the House Committee on Education and the Workforce, told Bloomberg BNA.

Republicans and Democrats are once again largely divided on several pressing labor and employment issues, but there could be some common ground on infrastructure spending, observers have told Bloomberg BNA.

Labor Secretary to Help GOP Repeal Regulations

Republican lawmakers have told Bloomberg BNA that a new labor secretary is key for shaping their efforts to reverse some controversial Obama-era regulations. That includes the fiduciary rule limiting conflicts of interest for retirement investment advisers and a delayed rule to expand overtime eligibility for workers.

“Following the recess, Chairman Alexander expects a successful confirmation of Alexander Acosta, and once confirmed, looks forward to working with him to help create a better environment for more workers in this country,” an aide for Senate HELP committee chairman Lamar Alexander (R-Tenn.) told Blomberg BNA.

Democrats are already accusing their colleagues across the aisle of moving to put business interests in front of worker protections. Several told Bloomberg BNA they’ll defend the overtime rule and continue to introduce pro-worker legislation, such as a national minimum wage increase and a measure to secure paid leave. Most of those bills are long shots because they would need at least some GOP support to move forward.

“The agenda we have will address raising wages and helping workers balance work and family,” Rep. Bobby Scott (D-Va.), the Workforce Committee’s ranking member, told Bloomberg BNA.

Comp Time Bill Presses Ahead

Foxx’s committee plans to give “further” consideration to the reintroduced Working Families Flexibility Act ( H.R. 1180, S. 801), which was introduced by Rep. Martha Roby (R-Ala.), a committee aide told Bloomberg BNA. The measure, which would permit employers to offer paid time off instead of time-and-a-half wages for all hours worked in excess of 40 per week, could see a mark up.

Congress in 1985 amended the Fair Labor Standards Act to allow public sector employees to accrue comp time for overtime hours worked.

The bill for private sector workers is backed by the U.S. Chamber of Commerce and other employer advocates. It would allow employers and workers to voluntarily agree to 1.5 hours of comp time for every hour of overtime worked, for up to 160 hours of time. The requested time would have to be approved by the employer.

Democrats fear some employers will force workers to take comp time for overtime and then make it tough for employees to actually use the time they’ve earned. Still, the measure is expected to move through the committee and possibly get a floor vote. Republicans are hoping to garner support from moderate Democrats, especially those up for re-election in 2018.

There’s a growing chance for similar movement of the Senate version, which has been referred to the HELP Committee. The measure, reintroduced April 3 by Sen. Mike Lee (R-Utah), is co-sponsored by high-ranking Republicans such as Alexander and Senate Majority Leader Mitch McConnell (Ky.).

The Senate version of the bill would need some Democratic support to avoid a filibuster. So far, there are no Democrats among the at least 18 co-sponsors.

More Debate Over Overtime

The comp time measure comes amid an ongoing larger debate about overtime pay. Addressing the Obama overtime rule will be one of the first orders of business for Acosta, if he’s confirmed as labor secretary.

Republicans have made clear that they want to scrap the rule, but the path for doing it remains unclear. The DOL could issue a new rule or lawmakers could try to move new legislation to amend the FLSA.

Republicans have told Bloomberg BNA that they may be willing to tinker with the salary threshold for automatic overtime eligibility, which is currently $23,500. They say they’re willing to hike the threshold to some unidentified level but don’t want to go nearly as high as the $47,500 mark proposed by the Obama administration.

Party allegiances could make a bipartisan compromise difficult, according to Michael Lotito, co-chair of Littler Mendelson’s Workplace Policy Institute.

“Congress could absolutely amend the FLSA to address overtime and say here’s a confirmation of the salary test,” Lotito told Bloomberg BNA. However, he said, “Most people have said that amending the FLSA is a little bit more difficult than achieving world peace.”

Retirement Plans on the Horizon

Even without a new DOL head, Republicans have been touting a spate of successful repeals of Obama-era regulations through the Congressional Review Act. The measure requires a simple majority in each chamber of Congress to move a measure to Trump’s desk for signature.

That process has nullified regulations such as Obama’s Fair Pay and Safe Workplaces executive order, which critics call “blacklisting,” in addition to a DOL rule that would have allowed cities to set up retirement programs for private-sector workers.

Republicans hope to address more DOL rules before the time-sensitive CRA process expires. They’re seeking a floor vote on H.J. Res 66, which would nullify a state version of the DOL retirement rule. The House passed that measure 231-193 on Feb. 15.

There’s a chance for a close vote in the Senate if things play out as they did for a resolution to stop the city version of the regulation/guidance. That measure narrowly passed March 30 in a 50-49 vote.

Paid Leave Measures Added to Conversation

Congress also returns with Republicans and Democrats once again split between two competing versions of a paid family leave measure.

Addressing the issue could get a nudge from the White House. Trump has urged Congress to address the issue.

Democratic lawmakers’ solution, the FAMILY Act ( S. 337, H.R. 947), would establish a national paid family and medical leave insurance program funded by contributions from employers and workers. Republicans have countered with the Strong Families Act ( S. 344), which would offer tax incentives to employers that provide paid family and medical leave.

An aide for the Trump administration early last month told Bloomberg BNA the White House was still weighing options. Efforts to get further comment were unsuccessful as of April 19.

Either measure would need some bipartisan support to clear the Senate. Democrats will be less likely to approve tax credits for corporations, according to AFL-CIO Government Affairs Director Bill Samuel.

“That version doesn’t appeal to Democrats since it deals with tax credits that don’t help most working families,” Samuel said. “I’m not sure if there is a place to meet in the middle. It’s conceivable and we will help them if it is, but i don’t think Republicans are serious about it.”

Indian Sovereignty Measure Floated Again

The AFL-CIO is also aggressively contesting the reintroduced Tribal Labor Sovereignty Act ( H.R. 986, S. 63).

The bill would bar the NLRB from exercising jurisdiction over tribal governments. That would mean workers at tribe-owned businesses in tribal territories, such as casinos, wouldn’t have the right to unionize under the National Labor Relations Act.

Samuel told Bloomberg BNA April 20 that even though the Senate version of the GOP-backed bill was recently approved by the Indian Affairs committee, it’s got a long way to go to pass a full floor vote.

“It’s unlikely they have the 60 votes in the Senate,” Samuel said. “There’s a number of Democrats and even Republicans that could vote no since they don’t want to rob workers of coverage under the NLRA.”

An aide for Sen. Jerry Moran (R-Kan.), who reintroduced the House bill, told Bloomberg BNA that Moran is seeking “to have his bill included in any appropriate must-pass legislation, and short of inclusion, will also offer it as an amendment at every opportunity.”

Democrats Vowing More Actions

Democrats have been largely playing defense in the early months of the new Congress. But the party plans to press ahead with measures that will feed job growth and protect employee rights.

That includes some long-shot legislation such as the Healthy Families Act (S. 636, H.R. 1516), which would require employers with 15 or more workers to provide up to seven days of paid sick leave per year.

“When we have legislative opportunities, we will offer amendments,” Scott said. “But when you’re in the minority you are on the defensive, especially with these issues and when the majority is united in making sure that businesses with serious and pervasive violations of OSHA and fair pay regulations are not disadvantaged.”

Scott told Bloomberg BNA April 20 that the Democrats are expected next week to introduce a bill to increase the federal minimum wage from the current $7.25 per hour.

Roadway to Compromise?

There’s a chance both Republicans and Democrats could find a common-ground on the Trump administration’s ambitious infrastructure initiative.

Trump’s proposed trillion-dollar spending plan is aimed at improving highways, bridges and other infrastructure. That means new jobs for construction and other workers.

“Infrastructure spending can bring jobs and if they pay the prevailing wage they can be good jobs to a vast swath of the country,” said Rebecca Kolins Givan, an associate professor at Rutgers School of Management and Labor Relations. “If wages are good and if they’re public projects and not private projects this can be something they can agree on and make labor unions very happy.”

Lawmakers are also looking for bipartisan ways to respond to challenges within the gig economy.

Republicans and Democrats have both said they want to improve conditions for gig workers, who are often treated as independent contractors and therefore not offered benefits, minimum wage, overtime and workers’ compensation protections.

Sen. Mark Warner (D-Va.) is expected to soon introduce a bill that would offer DOL grants for states, localities and nonprofits to experiment with portable benefits systems. Warner told Bloomberg BNA that Congress “must do better” to meet the needs of the changing workforce.

“For one-third of American workers, that means contingent work where people are not attached to traditional full-time jobs and have no social safety net,” Warner said. “We need to see more experimentation around portable benefit models that attach to the individual, not the job, and move with workers from job to job across a single day and an entire career.”

Appropriations for Job Training

Despite uncertainty about immediate funding, Congress is also expected to eventually turn its attention to appropriations for the next fiscal year.

That includes fielding mounting requests for funding legislation to reverse some NLRB decisions, such as expansion of joint-employer liability and recognition of microunions for bargaining purposes. Some lawmakers would also like to undo a rule that speeds up union representation elections.

Trump’s “skinny budget” calls for extensive cuts at agencies such as the DOL, which would get 21 percent less funding. Prior to the recess, House appropriators started hearings as part of efforts to understand where resources should be shifted at the department.

The discussions have been largely been about jobs programs. Lawmakers are seeking ways to help bridge skills gaps and respond to the needs of the nation’s evolving workforce.

Jobs programs appear to be a priority in both chambers. An aide for HELP chair Alexander said the panel is seeking to bolster workforce training.

Lotito told Bloomberg BNA that job training supporters will have to prove the value of such programs to a Trump administration already trying to cut costs.

“When you look at the president’s cabinet, you have a lot people with business experience and they want to look at a return for the investment,” he said. “Trump sees himself as the CEO and the CEO is always asking for what is the return on the investment and how do we justify the cost to our shareholders. If you want to remake government those are the types of questions” to ask, Lotito said, and they might not have an easy answer.

To contact the reporter on this story: Tyrone Richardson in Washington at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at; Christopher Opfer at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law