US Federal Labor Viewpoints – Week Of April 26, 2021 – Employment and HR

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This is a weekly post spotlighting labor topics in focus by the
US legislative and executive branches during the previous week. In
this issue, we cover:

  • Biden Administration Labor Leadership Updates
  • Recap of the President’s Remarks to Congress
  • Executive Order on Federal Contractors and Minimum Wage
  • E.O. on Worker Organizing
  • 2020 Tip Final Rule
  • Labor Department Grants
  • OSHA COVID-19 Emergency Regulation | House Hearing
  • Protecting America’s Workers Act
  • Upcoming Congressional Hearing

Biden Administration Labor Leadership Updates.
On Thursday, April 29, the Senate Health, Education, Labor, &
Pensions (HELP) Committee held a confirmation hearing for
Ms. Jennifer Abruzzo to serve as General Counsel
of the National Labor Relations Board (NLRB) and Ms. Seema
to serve as Solicitor for the U.S. Department of
Labor. In opening remarks, Senate HELP Committee Ranking
Member Richard Burr (R-North Carolina) criticized the Biden
Administration for what he considers its abrupt and unprecedented
firing of NLRB General Counsel Peter Robb, questioning the
independence and integrity of the General Counsel’s office
after this action. He also expressed concern over Ms. Abruzzo’s
involvement in the Agency Review Team for Labor and questioned Ms.
Nanda’s “highly partisan” background.

On April 23, U.S. President Joe Biden announced his intent to nominate Mr.
Rajesh Nayak
as Assistant Secretary of Labor for Policy.
On April 27, the President announced his intent to nominate Ms.
Elizabeth Watson
to serve as Assistant Secretary for
Congressional and Intergovernmental Affairs. Ms. Watson previously
served as Labor Policy Director and Chief Labor Counsel to the
House Education & Labor Committee; she currently serves as
Executive Director of the Congressional Progressive Caucus

Reports emerged this week that President Biden might soon
nominate Mr. David Weil to serve as Wage and House
Division Administrator. Mr. Weil previously served in this role
during the Obama Administration. He has supported increased
government oversight of gig-economy companies, such as Instacart,
DoorDash Inc., Uber Technologies Inc., and Lyft Inc.

Recap of the President’s Remarks to
In his Joint Address to Congress Wednesday evening,
President Biden emphasized the plight and importance of middle
class and blue caller workers, saying they, not Wall Street, built
the country. He urged Congress to send to his desk for signature
the Protect the Right to Organize Act (PRO Act), adding,
“[S]o we can support the right to unionize.” The
President called for Congress to approve a bill that would raise
the federal minimum wage to $15 per hour and to send him the
Paycheck Fairness Act, which he said would “ensure
greater equity and opportunity for women.”

President Biden also outlined his third trillion dollar package
– the American Families Plan (“the Plan”) –
that would expand education and child care in the United States.
According to a White House fact sheet, the Plan would:

  • Create a national comprehensive paid family and medical leave
    program to bring the American system in line with competitor
    nations that offer paid leave programs;

    • Guarantee twelve weeks of paid parental, family, and personal
      illness/safe leave by year 10 of the program, and also ensure
      workers get three days of bereavement leave per year starting in
      year one; and
    • Provide workers up to $4,000 a month, with a minimum of
      two-thirds of average weekly wages replaced, rising to 80 percent
      for the lowest wage workers.
  • Provide $109 billion for first-time students and workers
    wanting to re-skill to enroll in a community college to earn a
    degree or credential for free;
  • Add $2 billion that would be directed towards building a
    pipeline of skilled health care workers with graduate degrees;
  • Support “hundreds of thousands of child care providers and
  • Ensure a $15 minimum wage for early childhood staff and ensure
    that those with similar qualifications as kindergarten teachers
    receive comparable compensation and benefits;
  • Ensure child care workers receive job-embedded coaching and
    professional development, along with additional training
    opportunities funded by the American Jobs Plan and American
    Families Plan; and
  • Ultimately reform unemployment insurance (UI) to automatically
    adjust the length and amount of UI benefits unemployed workers
    receive depending on economic conditions.

The fact sheet also noted the President is calling on Congress
to pass the Healthy Families Act, which would require
employers allow workers to accrue seven days paid sick leave per
year to seek preventative care for themselves or their family.

House Education & Labor Committee Ranking Member Virginia
Foxx (R-North Carolina) said of the Plan unveiled by the President:
“The American Families Plan calls for a paid sick leave
mandate that is too costly and disruptive for small businesses. It
also designs a child care system that works best for the federal
government, not families.” Senate HELP Ranking Member
Burr stated at the above-noted confirmation
hearing: “[P]artisan legislation, like the poorly named
PRO Act, masquerading as a pro-worker bill, is truly a dagger aimed
at the heart of America’s free enterprise

Executive Order on Federal Contractors and Minimum
On April 27, President Biden signed an Executive Order (E.O.) on “Increasing the
Minimum Wage for Federal Contractors.” In Section 2, the order
addresses contractors and covered subcontractors to the Federal
Government, requiring the minimum wage to be paid to these workers
be set at $15.00 per hour, effective January 30, 2022. The E.O.
also provides for the Secretary of Labor – beginning January
1, 2023, and annually thereafter – to determine the minimum
wage for Federal contractors and covered subcontractors, outlining
parameters for the decision and stating the Secretary must publish
at least 90 days before any such new minimum wage is to take

For those Federal contractors and/or covered subcontractors that
are tipped workers, the E.O. states the following:

  • Beginning January 30, 2022, the federal contractor minimum wage
    for tipped workers be at least $10.50 per hour,
  • Beginning January 1, 2023, 85 percent of the wage in effect
    under Section 2 of the E.O., rounded to the nearest multiple of
    $0.05; and
  • Beginning January 1, 2024, and for each subsequent year, 100
    percent of the wage in effect under Section 2 of the order.

The E.O. further stipulates: “Where workers do not receive
a sufficient additional amount on account of tips, when combined
with the hourly cash wage paid by the employer, such that their
wages are equal to the minimum wage under section 2 of this order,
the cash wage paid by the employer, as set forth in this section
for those workers, shall be increased such that their wages equal
the minimum wage under section 2 of this order.”

The Secretary of Labor is to issue regulations by November 24,
2021, compliant with existing U.S. laws, to implement the
requirements of the order.

House Education & Labor Committee Ranking Member Foxx
criticized the E.O., stating: “Mandating a $15 minimum
wage for companies of all sizes doing business with the federal
government will adversely impact these businesses by reducing
workers’ hours, eliminating jobs, and increasing

E.O. on Worker Organizing. On April 26,
President Biden signed an E.O. on “Worker Organizing and
Empowerment” to promote his policy of support for worker
power, worker organizing, and collective bargaining. The order
establishes a Task Force on Worker Organizing and Empowerment
(“Task Force”), with the Secretary of Labor serving as
Vice Chair over a panel that includes representatives from most of
the Federal Departments and Agencies.

The Task Force will identify Executive Branch policies,
practices, and programs that could be used, consistent with
applicable law, to promote support for worker power, worker
organizing, and collective bargaining. This includes
“policies, practices, and programs that could be used to
promote worker power in areas of the country with hostile labor
laws, for marginalized workers (including women and persons of
color) and hard-to-organize industries, and in changing
industries.” The Task Force is also responsible for
identifying statutory, regulatory, or other changes that may be
necessary to make policies, practices, and programs more effective
means of supporting worker organizing and collective bargaining.
Within 180 days of the date of the order, the Task Force will
submit to the President recommendations for actions that would
promote worker organizing and collective bargaining in the public
and private sectors, toward increasing union density. A White House
fact sheet on the Task Force is available here.

House Education & Labor Committee Ranking Member Foxx
characterized the Task Force as “anti-worker,” stating: “Democrats have long been
skeptical of workers’ ability to decide for themselves whether
to join a union, and today’s Executive Order underscores the
distrust Biden’s administration has for working class

2020 Tip Final Rule. On April 28, the Labor
Department published a final rule delaying portions of
the 2020 Tip Final Rule until December 31, 2021. The eight-month
extension of the effective date for specific portions of the 2020
Tip Rule allows the Department time to address additional questions
of law, policy and fact and complete separate rulemaking related to
the assessment of civil money penalties, and the application of the
Fair Labor Standards Act’s tip credit provision to
tipped employees who also perform non-tipped work. Effective April
30, 2021, the following portions of the Rule went into effect:

  • A prohibition on employers, including supervisors and managers,
    keeping tips received by workers, regardless of whether the
    employer takes a credit for workers’ tips toward their
    obligation to pay those workers minimum wage.
  • The recordkeeping requirements for an employer that does not
    take a tip credit to include non-tipped workers, such as cooks and
    dishwashers, in nontraditional tip-sharing arrangements.
  • An employer that collects tips for tip pools must distribute
    tips fully no later than the regular payday for the workweek or pay
    period in which the establishment collected the tips.

Labor Department Grants. On April 28, the Labor
Department announced the award of five grants totaling
more than $103 million to five state agencies – Kansas,
Kentucky, Minnesota, Ohio and Vermont – to continue and
expand pilot projects to help newly injured and ill workers remain
in the workforce, part of the Retaining Employment and Talent after
Injury/Illness Network (RETAIN).

On April 26, the Labor Department announced a funding opportunity of $3.5 million
for up to 10 grants to increase and retain the number of women in
quality Registered Apprenticeship Programs and nontraditional
occupations such as those in the manufacturing, infrastructure,
cybersecurity and healthcare industries. Additional details on this
opportunity are available here.

OSHA COVID-19 Emergency Regulation | House Hearing
The House Education & Labor Committee
postponed today’s scheduled hearing today titled,
“Protecting Workers from COVID-19: Monitoring the Status of
OSHA’s Emergency Temporary Standard.” In a statement, Ranking Member Foxx pushed for
rescheduling the hearing, stating: “Apparently, the
postponement of Friday’s hearing signals that Democrats are
worried their own administration will help make the case that
current scientific and economic data proves that a rushed and rigid
so-called ’emergency’ COVID-19 OSHA regulation is not

Meanwhile, OSHA is reportedly moving forward with its Emergency
Temporary Standard (ETS) for COVID-19 safety in the workplace. The
ETS is reportedly at the White House for review and could be issued
before Memorial Day. It would be take effect immediately.

Protecting America’s Workers Act. On April
28, House Education & Labor Committee Chairman Bobby Scott
(D-Virginia) – along with Representatives Joe Courtney
(D-Connecticut) and Alma Adams (D-North Carolina) – reintroduced the Protecting America’s
Workers Act, a bill that would strengthen and modernize the
Occupational Safety & Health Administration (OSHA), for the
first time since enactment of the Occupational Safety and
Health Act on April 28, 1971. Among other things, the bill

  • Expand OSHA coverage to 8 million state and local government
    employees in 24 states;
  • Mandate that employers correct hazardous conditions in a timely
    manner, rather than waiting until violations are litigated;
  • Re-instate an employer’s ongoing obligation to maintain
    accurate records of work-related illness and injuries, reversing a
    Trump Administration Congressional Review Act resolution;
  • Deter “high gravity” violations by providing
    authority for increased civil monetary penalties for serious or
    willful violations that cause death or serious bodily injury;
  • Expand injury and illness records that employers are required
    to maintain and report in order to enable OSHA to more effectively
    target unsafe workplaces;
  • Authorize the imposition of felony penalties against employers
    who knowingly commit OSHA violations that result in death or
    serious bodily injury and extend such penalties to corporate
    officers and directors;
  • Require OSHA to investigate all cases of death and serious
    injuries that occur within a place of employment; and
  • Establish rights for families of workers who were killed on the
    job by giving them the right to meet with OSHA investigators,
    receive copies of citations, and to have an opportunity to make a
    statement before any settlement negotiations.

Upcoming Congressional Hearing. On May 3, the
House Education & Labor Committee Subcommittee on Workforce
Protections is set to hold a hearing titled, “From Excluded to
Essential: Tracing the Racist Exclusion of Farmworkers, Domestic
Workers, and Tipped Workers from the Fair Labor Standards

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