Congress Returns to Funding Deadline, Joint-Employer Bill

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By Tyrone Richardson

Congress enters the fall legislative session facing a calendar peppered with a government funding decision, Trump administration nominees to consider, and a pending House bill that would limit labor and employment liability for affiliated businesses.

The Senate considered political nominees and federal government appropriations during the run-up to the August recess. Some moves were delayed by the debate over replacing Obamacare. In the House, Republicans continued an ongoing legislative effort to reverse some other Obama-era policies.

Lawmakers are likely to continue to pursue those priorities to when they return Sept. 5, but may once again be slowed by partisan divides. The Senate filibuster rule means the Republican majority in that chamber will need to convince at least eight Democrats to cross the aisle to move any legislation.

“There’s only 52 votes in the Senate,” Randy Johnson, the U.S. Chamber of Commerce’s labor chief, told reporters Aug. 31, referring to the number of Republicans. The Chamber largely aligns with Republicans on labor issues and has helped lead the charge against various Obama-era initiatives. Johnson said the group’s goal in Congress is to “figure out narrowly tailored changes to our labor laws and go forward with those that are really well rationalized.”

At the top of the list for Congress is the looming specter of a potential government shutdown. Legislation currently funding the government is set to expire at the end of September, and a long-term spending measure may be complicated by a dispute over whether to raise the federal debt ceiling.

Party-line division is largely expected to continue as members consider political nominees, employee benefits such as paid leave, union election procedures, joint employer liability, and conflict-of-interest restrictions for retirement advisers.

Deputy labor secretary nominee Patrick Pizzella is still awaiting Senate confirmation, and management lawyer William Emanuel still needs to be approved by senators for a seat on the National Labor Relations Board. Business advocates would like to see the White House and Congress pick up the pace on nominations so that the Labor Department and NLRB can change course on various policy and legal questions.

House Taking Legislative Lead

The GOP-controlled House this Congress has moved several pieces of legislation on labor-related issues such as compensatory time for overtime and union election rules.

Lawmakers plan to build on that success with a joint employer bill ( H.R. 3441) that could be marked up before the end of September. The Save Local Business Act would limit the circumstances under which businesses in staffing, franchise, and other contract relationships can be required to bargain with affiliated workers or be held responsible for wage-and-hour violations related to those workers.

“Over the August district work period, I have continued to hear from employees and business owners in my district who want to see Congress address the joint employer issue,” bill sponsor Rep. Bradley Byrne (R-Ala.) told Bloomberg BNA Aug. 29. “I know support has been continuing to build for the Save Local Business Act, and I expect it will be a top priority for the House Education and the Workforce Committee once we return to Washington next week.”

The legislation is the latest effort to reverse the National Labor Relations Board’s 2015 decision in Browning-Ferris Industries of California Inc., in which the NLRB held that organizations with indirect control over contractors, franchisees, or staffing agency workers can be considered their joint employer under federal labor law. The bill would also undo a Fourth Circuit decision in which the appeals court took a similarly expansive view of liability in overtime and minimum wage cases.

A federal appeals court in Washington, D.C., is currently reviewing the Browning-Ferris case. The Supreme Court has been asked to take up the Fourth Circuit case.

Bryne’s bill already has strong Republican support and could draw votes from moderate Democrats. Conservatives and business advocates say the decisions unfairly extend liability to businesses that don’t truly have control over a workplace.

Byrne and other Republicans tout the measures as efforts to rescind policies that have thwarted job growth. Democrats like Rep. Mark Takano (Calif.), the ranking member on an Education and the Workforce subcommittee, see them otherwise.

“These efforts directly violate the president’s promise to stand with workers and they are further proof that House Republicans are not prepared to align their rhetorical support for American workers with the tangible support they deserve,” Takano, ranking member of the Workforce Protections Subcommittee, told Bloomberg BNA Aug. 24.

The committee is also scheduled to consider labor issues in the sharing economy in a hearing Sept. 6. Gig workers for sharing businesses like Uber and Lyft are largely considered independent contractors, who don’t get minimum wage and overtime protections and aren’t entitled to unemployment benefits and workers’ compensation insurance.

Richard Trumka, president of the AFL-CIO, told reporters Aug. 30 that the union is already thinking about how it might update its organizing and policy lobbying efforts to reflect the impact of technology and new work platforms. “We need to evolve and change to meet the changing needs of the people and the workers that are still going to be out there,” Trumka said.

Senate Focus on Funding, Appointees

Many of bills winding their way through the House have largely sat untouched in the Senate, shelved as the chamber addresses time-sensitive issues such as executive appointees and efforts to keep the government open for business after the end of the fiscal year, Sept. 30. The ongoing health-care debate and an upcoming push for a tax overhaul could also continue to clog up the calendar.

The Senate Health, Education, Labor and Pensions Committee will likely schedule an executive session to consider Pizzella, President Donald Trump’s pick for the Labor Department’s second-highest position. The panel Aug. 2 tabled a vote on Pizzella’s nomination because Sen. Richard Burr (R-N.C.) wasn’t able to attend the session.

The chamber’s appropriators will also be moving forward soon with their version of the Labor-HHS appropriations bill, which funds agencies such as the DOL and NLRB. The Appropriations Committee is scheduled to mark up the bill, which hasn’t been made public, Sept. 6.

The House Rules Committee recently published that chamber’s proposed Labor-HHS spending bill. The move sets up a potential floor vote when lawmakers return from recess.

The House bill, which has been approved by the Appropriations Committee, would cut 11 percent from DOL and NLRB funding. It also includes a number of labor-related policy riders, including one to undo the Browning-Ferris decision.

Those riders may not make it to the Senate version of the spending bill, Rep. Tom Cole (R-Okla.), chairman of the House Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies, told Bloomberg BNA July 27.

“I don’t think those things will be stripped over here when we pass them, but I doubt they’ll be in the Senate bill,” he said. “If so, then we go to conference and discuss what we can do and what we can’t do.”

Similar riders have largely been dropped from funding legislation as it moved through Congress in recent years.

GOP Paid Leave Measure Coming

Some Republicans are taking a closer look at proposals to make paid leave available for private workers, spurred at least in part by interest from the president’s daughter Ivanka Trump and some employer advocates. House lawmakers are planning to unveil a long-awaited GOP paid leave proposal soon after they return to the Capitol.

The Society for Human Resource Management is working with Rep. Mimi Walters (R-Calif.) on legislation that would create an exemption from state and local laws for employers that offer workers some unspecified amount of paid leave and flexible work options. Employers would be given the option to join the program on a voluntary basis.

The bill is “still being developed” and is expected to be “introduced sometime after Congress returns from the August recess,” Lisa Horn, director of congressional affairs at SHRM, told Bloomberg BNA Aug. 21. The HR Policy Association has also been involved in the talks, according to Roger King, the group’s labor and employment counsel.

“Our members include the larger companies in this country that are facing a very complex number of paid leave bills throughout the country,” King said. “Some general federal direction in this area for our members would be a help.”

It’s not clear whether the bill will get any support from Democrats, who previously have preferred bills that would require employers to offer paid leave.

Walters and her aides haven’t responded to Bloomberg BNA’s repeated requests for comment.

Other paid leave bills may also get renewed interest, including the GOP-led Strong Families Act ( S. 344), which would offer tax incentives to employers that provide paid family and medical leave. Democrats have reintroduced the FAMILY Act ( S. 337, H.R. 947), which would establish a national paid family and medical leave insurance program funded by contributions from employers and workers.

The White House hasn’t taken a position on either piece of legislation. A White House aide, who spoke on the condition of anonymity, told Bloomberg BNA Aug. 29 that the administration is working with Congress to develop a paid leave program. The aide didn’t specify lawmakers or bills to be considered.

Comp Time for Overtime

There are other paid leave measures moving through Congress.

That includes the Working Families Flexibility Act ( H.R. 1180, S. 801)—passed by the House in May—which would allow employers to give workers a choice to take paid time off instead of time-and-a-half pay for overtime work.

The comp time bill has been offered as an alternative to the Obama-era overtime rule, which would have made some 4 million workers newly eligible for time-and-a-half pay. The Labor Department has put the rule on hold, indicating that it may pursue a more moderate expansion of overtime eligibility.

Several other pieces of labor-related legislation are competing for House lawmakers’ attention. That includes the Affordable Retirement Advice for Savers Act ( H.R. 2823). The bill, which was approved by the workforce committee on a party-line vote, would reverse the Labor Department’s fiduciary rule. The rule was intended to ramp up conflict-of-interest restrictions for retirement investment advisers.

Meanwhile, labor groups and Democrats are likely to push back against what they see as efforts to erode protections for workers.

“We need to start changing and fighting to change the rules of the economy so that working people get a fair shot,” Trumka said.

To contact the reporter on this story: Tyrone Richardson in Washington at trichardson@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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

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