Punching In: Pay Data Decision Looms, House Bills on Move


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Joint Employer Jostling | Dueling Labor Day Remarks | EEOC Pay Data on Chopping Block?

Chris Opfer: Labor Day is next week, which means I’ll be wearing my white jeans and panama hat for the next seven days straight before I have to put them back in the closet for the winter. Now is also a good time for everyone to get a little rest before Congress comes back to town and the Supreme Court starts hearing cases.

I’m told the House Education and the Workforce Committee has tentatively scheduled  a hearing on joint employment for Sept. 13. That means we’re likely to see the panel mark up a Republican bill to limit labor and employment law liability for affiliated businesses soon thereafter. The measure is backed by business groups that say the feds went  overboard by making companies liable for workers directly employed by other companies. But the bill  still has a long way to go. There’s no companion measure in the Senate, where at least eight Democrats would have to cross the aisle and support the House bill to avoid a filibuster.

Ed/Workforce spokeswoman Bethany Aronhalt told me the committee’s “schedule has not been set.”

Meanwhile, Bloomberg Law’s Tyrone Richardson says we may finally get a peek at the House Republican paid leave measure after Labor Day. The long-awaited bill by Rep. Mimi Walters (Calif.) – with help from the Society for Human Resource Management and HR Policy Association – is likely to offer a safe harbor from state and local requirements to employers that voluntarily offer workers a certain amount of paid leave. Beyond that, details are sketchy.

Ben Penn: There’s no better way to spend the week before Labor Day than here in Washington watching leaders of the AFL-CIO and U.S. Chamber of Commerce present their summations of workplace policy under Trump. Wednesday, AFL-CIO President Richard Trumka will speak about the state of the labor movement, at a Christian Science Monitor-hosted breakfast. Thursday, the Chamber’s Senior Vice President Randy Johnson, head of the behemoth organization’s labor policy shop, hosts an annual Labor Day briefing that gives us the business perspective on workforce issues.      

Seven-plus months into the Trump White House, both sides have a few things to grumble about. 

A shared gripe may be that the administration hasn’t demonstrated a commitment to labor and employment policy or laid out a clear vision of whose side it is on. 

Businesses may be disappointed that the Trump Labor Department isn’t taking faster action on reversing certain Obama era regulations. Transitions take time, and the Chamber can calm members’ nerves by asking for patience. But let’s see how candid the Chamber officials are when prognosticating the coming months under an unorthodox White House with a labor secretary who’s more restrained and moderate than they might have hoped.  

As for the union outlook, it would be fascinating to inject Trumka with truth serum before he takes the mic this week, to hear how he plans to seek labor movement unity. A major challenge is that building trade unions still support Trump while the more progressive wing of the federation’s membership is resisting the president at every turn. 

Here’s to Rich and Randy unwinding over a beer together Friday to kick the holiday weekend into gear. I’ll be the fly on the wall.

CO: Will the Trump administration take another look at the EEOC’s new pay data requirements? We may find out this week. Bloomberg Law’s Jay-Anne Casuga tells me the Office of Management and Budget is supposed to decide by Thursday whether to review its previous approval of the new obligations, requiring businesses with 100 or more workers to hand over pay data categorized by sex, race, and ethnicity. The Chamber of Commerce asked the OMB to give the new requirements another look, arguing that the EEOC during the Obama administration downplayed the compliance burden for employers.

If OMB chooses not to reconsider, businesses will have until March to get their HR, payroll, and other systems in gear so they’re ready to start giving up the goods. In the meantime, there’s still a chance that a new, Republican-majority EEOC will put the kibosh on the updated disclosure requirements. Of course, Republican nominees Janet Dhillon and Daniel Gade have to be confirmed by the Senate and sworn into their seats on the EEOC before that can happen. 

BP: To the extent the Labor Department and White House have been occupied with any publicly facing employment policy initiatives this year, the message has been set on repeat: Expand apprenticeships. 

The president, his daughter, and Secretary Alex Acosta are all involved in convening business leaders and other stakeholders on the subject of improving workers’ skills while allowing businesses the flexibility to design their own apprenticeship programs tailored to their job training needs. Behind closed doors, I’m told Acosta and a few policy aides, such as Ondray Harris, are hard at work rolling out the next stage of the plan.  

DOL might be wise to declare soon, however, what it’s actually doing to put the Trump stamp on the earn-as-you-learn model. Harris, a former Bush administration Justice Department official, engaged with workforce organizations on apprenticeship earlier this month. He’s said to be the secretary’s point person on the project.  

DOL’s apprenticeship executive order implementation rules aren’t slated to be finalized until next year. If the agency wants to put points on the board to please the White House, it must facilitate the enrollment of more apprentices now – not wait until the regulation is complete.

Even in a restrictive budgetary environment, DOL currently has $95 million at its disposal to seed apprenticeships, a pot of money originally authorized for FY 2016 that was extended in FY17. But if the department renews grants to the same states and industry groups that received them back in 2016, then the credit would need to be shared by the Obama administration. Nobody knows what DOL will do with that funding, and the agency has broad discretion to stray from the original plans. 

The decision may indicate whether the apprenticeship push is driven more by politics or a desire to upskill the workforce. 

CO: We’re punching out. Daily Labor Report subscribers can check in with us during the week for more on the pay data disclosures and updates on Trump administration personnel moves. Jacklyn Wille is keeping an eye on a Rhode Island hospital that wants to cut pension benefits by 40 percent. The fate of the plan – a private company bought the hospital in 2014 – raises some interesting questions related to the recent Supreme Court church plan cases.

See you back here next Monday morning.

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