Outlook 2018: Congress Seeks Action on Labor Ahead of Campaigns

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By Tyrone Richardson

Congress starts the new year with Republicans poised to act on some labor-related legislation, confirm President Donald Trump’s nominees, and fast-forward talks about apprenticeships and other issues that could gain bipartisan support.

Lawmakers also return with a shortened timeline to move on legislation before expected slowdowns, results of the lull that historically accompanies an approaching midterm campaign season. That could give urgency to coordinating discussions about apprenticeships, infrastructure, adapting labor laws to the gig economy, and paid leave. Still, the continued partisan divide on many labor-related matters is making it hard to pass bills.

Republicans, who control both chambers, are expected to continue moving an agenda to lessen what they see as job-crushing regulations on businesses. Hearings will also likely continue on both health care and stamping out workplace sexual harassment, including on the Hill.

The Senate is expected to eventually take up some House-passed measures to reverse National Labor Relations Board actions during the Obama administration. The chamber also still has its hands full with the process of confirming Trump’s nominees to the Labor Department and other agencies. That includes names like Janet Dhillon to serve as chair of the Equal Employment Opportunity Commission.

It’s not immediately known what will happen to DOL nominees like Patrick Pizzella, who was appointed in June for the agency’s second highest position. Senate inaction on Pizzella and Cheryl Stanton for Wage & Hour Division administrator means the names were kicked back to the White House to renominate and start the confirmation process again.

Congress will also be busy with the funding of federal agencies, which are currently working under a temporary resolution that keeps operations going through Jan. 19. The Labor-HHS bill, which funds agencies such as the DOL and NLRB, passed the House in September but has yet to get a floor vote in the Senate.

House to Continue Talks Started in 2017

The House Education and Workforce Committee is expected to continue talks about paid leave, retirement funds, and the gig economy, lawmakers and lobbyists told Bloomberg Law.

“We are still having an active conversation about what the workplace in the 21st century will look like and how these old statutes match up with what is going on in the workplace,” said Rep. Bradley Byrne (R-Ala.), chairman of the panel’s Workforce Protections Subcommittee. “While we’ve had these discussions, we really haven’t come down to what we will change about these statutes to bring them more into compliance with what is going on in the workplace.”

This comes as Democrats are seeking action on bills to improve worker rights and raising the federal minimum wage. Such efforts have failed so far this Congress. Bipartisan support generally triggers committee and floor actions.

The workforce committee’s ranking Democrat also weighed in. “Over the next year, Democrats on the Education and the Workforce Committee will focus on fighting against the litany of worker protection rollbacks at the Department of Labor and the National Labor Relations Board,” Rep. Bobby Scott (Va.) told Bloomberg Law. “We will also continue to stand up for workers’ rights to fair wages, safe workplaces, retirement security, and their ability to join unions and negotiate with their employers.”

The committee is also expected to have a busy year with other topics under its jurisdiction, such as education. Legislative processes to change education or labor policies ebb and flow from year to year, lawmakers have told Bloomberg Law.

Will Senate Return to Stack of Bills?

The Senate Health, Education, Labor and Pensions Committee has a mounting list of House-passed labor-related bills to consider in 2018. The measures include some NLRB-related bills that could rise to the top of the priority list, according to leadership.

Such actions would be a change for the HELP Committee, which spent most of 2017 tasked with moving Trump’s political nominees and holding hearings about Republican efforts to change Obamacare.

“Next year the Senate should pass legislation to roll back the NLRB’s ambush elections rule which forces employees to vote on whether to join a union before they know what’s happening and change the NLRB’s harmful joint employer rule which threatens the path to the American Dream for owners of 780,000 franchise businesses,” HELP chairman Sen. Lamar Alexander (R-Tenn.) told Bloomberg Law.

Alexander said the Senate could vote on the Save Local Business Act ( H.R. 3441), a measure that would limit the extent to which affiliated businesses are considered joint employers for wage-and-hour and other kinds of potential employment liability, as well as collective bargaining purposes.

Joint-Employer Bill Remains High Priority

Democratic support is a necessity in the Senate for the GOP to thwart a filibuster. The party will need at least nine Democrats to cross the aisle to move legislation once Senator-elect Doug Jones (D-Ala.) is sworn in. Lawmakers are hopeful of garnering enough backing on the joint-employer bill, which passed the House Nov. 7 with votes from eight Democrats.

Lobbyists have been targeting Democrats for support, especially those up for reelection this year. At least some bipartisan support is expected in the Senate, said David French, senior vice president of government relations at the National Retail Federation.

“I hope they will move on joint employer,” he told Bloomberg Law. “That’s ready to go with a pretty strong bipartisan vote in the house. Maybe the strongest bipartisan vote I’ve seen in 20 years.”

Paid Leave Poised for House Action

Congress is also ready to take up legislation related to paid leave, an agenda item being pushed by the White House. The recently passed Republican tax bill includes incentives for employers that offer paid family and medical leave.

The Workforce committee in December held a hearing about the issue, highlighting strong GOP support for Rep. Mimi Walters’ (R-Calif.) Workflex in the 21st Century Act ( H.R. 4219). The bill would exempt employers from state and local paid leave obligations if they give workers a certain amount of general paid leave that can be used for medical, family, bereavement, vacation, and other reasons.

That bill could likely see movement in the House, Randy Johnson, the U.S. Chamber of Commerce’s senior vice president for labor, immigration, and employee benefits, told Bloomberg Law. The Chamber and other employer advocates such as the Society for Human Resource Management helped craft the legislation.

Workforce committee Democrats are already opposing the measure, in part because it undermines local government laws. Democrats have their own paid leave measure: 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.

Gig Economy Workforce a Driving Issue

Congress could also look at modifying federal labor laws with the gig economy in mind. The sector has expanded exponentially via peer-to-peer apps like Uber and Lyft, making the worker classification issue—employee or independent contractor?—a major concern for lawmakers. The distinction has reverberations in many areas, with non-employees often excluded from health-care coverage, overtime pay, retirement funds, and paid leave.

Lawmakers could consider bills to simplify tax withholding for businesses that use contractors; and to help on-demand workers get portable health insurance, retirement, and other benefits, Vikrum Aiyer, a policy director for online delivery service Postmates, told Bloomberg Law.High-ranking Republicans such as House Workforce chair Rep. Virginia Foxx (R-N.C.) have said they’re open to talks about reworking “outdated” federal labor laws for the workforce.

Areas of Bipartisanship

Lawmakers could also focus on some bipartisan issues in the new year, such as apprenticeships, a major topic at the White House and Labor Department, observers told Bloomberg Law. Infrastructure funding, something Trump spoke about during his campaign, is another area where the parties could work together, said Sue Schurman, a professor in the Rutgers School of Management and Labor Relations.

“His campaign promise was around his infrastructure bill and that is one that could get some bipartisan support,” she said, adding that it could fuel more jobs and the economy.

—Ben Penn contributed to this story.

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

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com

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

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