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President Donald Trump has yet to see any labor-related bills land on his desk in his first year in the White House, partly because the Senate committee tasked with moving such legislation has been focusing on health care and getting administration nominees confirmed.
The Committee on Health, Education, Labor and Pensions has spent much of its time trying to overhaul Obamacare and reviewing nominees to run the Labor Department, National Labor Relations Board, and other agencies. That’s OK with leadership and some employer-side advocates who say the panel’s success is measured by its ability to help confirm senior personnel.
Asked about major labor policies to come out of the committee, Chairman Lamar Alexander told Bloomberg Law the committee’s focus is on “nominees who make policy." Major changes are likely to come via policies set by the secretary of labor and his team, and by the NLRB, Alexander said.
The HELP Committee so far this year has approved, largely by party-line votes, 11 nominees to senior posts at the Labor Department, NLRB, and Equal Employment Opportunity Commission. The panel also unanimously approved three members to the less-controversial National Mediation Board, which handles labor issues in the railroad and airline industries.
The committee shows no signs of slowing down. The panel will hold a hearing for another wave of nominees Nov. 15, including Trump’s designees for DOL solicitor and the leader of the agency’s employee benefits division.
Several labor-related bills have moved swiftly through the House Committee on Education and the Workforce, where the HELP’s counterpart has spent much of its time on work issues. Some measures have even been passed by the GOP-controlled House, where lawmakers can approve legislation with a simple Republican majority. The Senate’s filibuster rule means that eight Democrats have to cross the aisle to get the 60 votes needed to pass a measure in that chamber. The Senate can confirm nominees, however, by a majority vote.
Political observers told Bloomberg Law that moving nominees is an easier path for Senate Republicans this Congress. That’s in part because labor issues continue to create partisan divides.
“The Democrats in the Senate have much more leverage. They have a filibuster and it is much more decentralized than in the House,” said David Bateman, a political science professor at Cornell University. “The Democrats in the Senate can do a lot to influence and block legislation.”
Some of the HELP-approved nominees have been confirmed by the Senate. They’re already working to reverse some Obama-era regulations such as DOL’s overtime rule. That, along with action in the courts, is the path the Republican party is taking to undoing Obama policies they said thwarted job creation.
“Courts have become the battleground for a number of labor issues important to the restaurant industry,” Angelo Amador, executive director of the National Restaurant Association’s Restaurant Law Center, told Bloomberg Law. “The joint employer standard, tip-pooling, and overtime have all been brought to the forefront of litigation since the start of this administration. Secretary Acosta has taken a deliberate approach to reviewing a number of the harmful regulations affecting the business community. ”
Committee Democrats have voiced stern disapproval of many of Trump’s nominees to labor posts. And HELP ranking member Sen. Patty Murray (D-Wash.) told Bloomberg Law that the nominees will be “attacking” workers rights.
“There’s been no policy, but they have pushed a number of people through,” she said. The new personnel at the Labor Department and other agencies “are attacking labor’s rights,” Murray said. “That is what we have to be very conscious of,” she said.
The path to confirmation can be time-consuming. Nominees have to submit background-check paperwork, hearings are usually scheduled, and votes have to be held before a nomination reaches the Senate floor for consideration. There have been some delays this year, including the weeks lost when DOL secretary-designate and fast-food executive Andrew Puzder withdrew his nomination in February.
The inaction on labor policy could benefit congressional Democrats, who are eager to use the 2018 midterm election to reclaim a majority in Congress.
“There’s only so much time for them to move on legislation. It was like the first half of Congress was spent on health care,” said Gregory Wawro, a political science professor at Columbia University. “That’s going to suck all the oxygen out of the room and hard to do anything significant on other policy issues.”
Meanwhile, there’s mounting legislation for HELP’s consideration on issues ranging from paid leave to the gig economy workforce.
That includes a House-passed bill, Working Families Flexibility Act ( H.R. 1180, S. 801), which would allow employers to offer paid time off instead of time-and-a-half wages for overtime hours. There are also calls for the Senate to take up a bill the House passed recently that would reverse a controversial 2015 National Labor Relations Board ruling that redefined joint-employer liability.
Alexander hinted Nov. 7 that the Senate will be seeking to take action on the joint employer bill, but he stopped short of saying when.
Labor policy hasn’t been at a total standstill in the Senate. Earlier this year, the Senate Committee on Indian Affairs approved the Tribal Labor Sovereignty Act ( H.R. 986, S. 63) by voice vote. That measure has yet to come up for floor consideration.
Cornell’s Bateman said he doesn’t expect the Senate to pick up the pace on labor legislation.
“There will not be much chance of labor policy from Congress,” he said. “Instead it will be through executive orders, agencies like the NLRB, and the Supreme Court that we can expect to see more severe changes.”
That’s fine with employer advocates such as HR Policy Association lawyer Roger King, who said “there’s no concern about the HELP committee” this year.
“The most important work of that committee is to go through the various nominees and get them confirmed,” he told Bloomberg Law. “We think the committee has been very good with scheduling hearings and moving them forward.”
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