AWFS is a client of LobbyIt. Each month, LobbyIt prepares the following report on public policy updates and activity for AWFS and its member companies.
AWFS Monthly Report
Greetings!
During the month of April, Lobbyit continued to monitor Congressional developments and also met again with the Department of Labor regarding workforce development options for AWFS.
Advocacy Highlights
The month of April saw Congress making efforts to return to “regular order”. After the President almost vetoed the Omnibus because he was unhappy with the size of the spending package, Congress has an incentive to pass the individual spending (appropriations) bills. However, it has been a very long time since Congress passed all twelve appropriations bills and the likelihood that they will succeed this year is low. But we will monitor to see. Going forward, we anticipate that the bandwidth on the Hill will be filled with appropriations negotiations, confirmation hearings in the Senate, negotiations on FAA reauthorization, and the Farm Bill. These next few months will be a flurry of activity as Congress tries to complete its business in time to leave for full time campaigning at the end of the summer.
As part of our efforts to find ways for AWFS to take a leading role in the workforce development space, we met again with the Department of Labor’s Employment and Training Administration (ETA) and discussed with them the options that are available for associations and other organizations to take a role in the existing registered apprenticeship space, as we wait for the Department to finalize the new industry-led space. During this meeting we were introduced to additional staff who work in the ETA and have oversight of the different sectors we would have to interact with. One individual assists organizations like AWFS in determining the next steps that would be required to launch an apprenticeship and what considerations the association must take into account. From our conversations, we understand that DOL takes an active role in assisting organizations to stand-up workforce development programs, including assistance at the regional level and connecting with colleges that can help facilitate this process and potentially be a part of the finished program once it gets underway.
The next steps in the process is to work to identify the career tracks that are most in need for AWFS members and determine what steps can AWFS do to best help fill this pipeline. It could be that we identify both public and private partners at the national and regional level that AWFS can lend its expertise and voice to, helping to raise the profile and get the membership involved. Alternatively, it could be that AWFS decides to set up its own certification program that both generates revenue and addresses the problem.
But first, as we approach the half-year mark, we will be working with AWFS staff to reassess our legislative strategy and determine if we need to make adjustments for the rest of the year based on AWFS priorities and the shifting legislative calendar.
Legislative & Regulatory Updates
Association Health Plan Rule Under Review At OMB, Expected Out By Summer
The Trump administration’s controversial proposed rule promoting association health plans (AHPs) is under review by the White House and is expected to be released this summer.
If finalized, the rule would loosen the definition of an employer under ERISA to encourage creation of AHPs that could cover workers from various industries and include sole proprietors and their dependents.
Republican lawmakers and other AHP supporters have praised the rule as a way to provide more affordable coverage choices. But Democrats and advocacy groups see it as another way to undermine the Affordable Care Act, and have asked the Department of Labor to scrap the proposal, or at the very least rewrite it in a way that would protect consumers from harmful insurance practices.
Labor Dept to let teens work longer hours in hazardous jobs: report
The Trump Labor Department wants to loosen protections that prevent teenagers from working longer hours at hazardous workplaces, Bloomberg Law has reported.
Sources familiar with the move have said that the Labor Department is going to propose relaxing some decades-old Hazardous Occupations Orders (HO).
The current rules allow some 16- and 17-year-old apprentices and high school students to receive very limited exemptions to work in hazardous occupations – usually no more than an hour a day.
Some of these dangerous jobs include roofing work or operating chainsaws and other powerful machinery deemed too dangerous for those under 18. According to a draft regulatory notice, obtained by Bloomberg, the Department of Labor expects to introduce by October to the hazardous occupations provisions of the Fair Labor Standards Act.
“The Department proposes to safely launch more family-sustaining careers by removing current regulatory restrictions on the amount of time that apprentices and student learners may perform HO-governed work,” the document reportedly states.
Joint-Employer Bill Finds Roadblock in Senate
There’s slim chance a House-passed joint-employer bill could pass the Senate any time soon.
That’s the message Senate Health, Education, Labor and Pensions Committee Chairman Sen. Lamar Alexander (R-Tenn.) told an audience at the International Franchise Association Legal Symposium in Washington, D.C.
“The all-likely solution is the NLRB revisits the rule because that’s after all how it was changed in the first place,” Alexander said, suggesting that the GOP-controlled National Labor Relations Board is more likely to act on the joint employer question than the Senate. Alexander said there’s not currently enough Democrat support to move legislation to undo a 2015 NLRB decision expanding joint employer liability for affiliated businesses.
The House in November passed legislation (H.R. 3441) to restrict joint employer liability in a vote that included eight Democrats crossing the aisle to vote in favor. At least nine Democrats would have to support the measure to pass it in that chamber.
Joint employer liability is at the center of one of the most heated labor policy and legal questions in recent years. Supporters of expanded liability say it prevents businesses from hiding behind complicated contractual relationships to avoid responsibility for labor and wage and hour violations. Critics argue it makes businesses in franchise and staffing arrangements potentially on the hook for other employer’s workers.
A Democrat-majority board in Browning-Ferris Industries of California Inc. ruled that organizations with indirect control over contractors, franchisees, or staffing agency workers may be considered their joint employers under federal labor law.
The NLRB in a December 2017 ruling briefly reverted to a restricted, “direct control” test for joint employer liability for unfair labor practice and unionization purposes. That move was short-lived: the board later dropped the decision because of ethics concerns related to Member William Emanuel’s (R) participation in the case.
Big Hurdle for Bill
The pending legislation would amend the National Labor Relations Act and the Fair Labor Standards Act, laws that give workers the right to organize and require employers to pay minimum wages and overtime.
The measure has not drummed up any public support from Senate Democrats, shrinking hope the measure could pass the chamber in the near future. Republicans need support of nine Democrats to achieve the 60 votes needed to pass legislation.
The IFA is among several employer advocates seeking passage of the bill, which they say would reverse board overreach. Others argue that the current approach to joint employment gives workers a seat at the table with the companies actually setting the terms and conditions of their jobs.
The Browning-Ferris decision is currently on appeal.
Labor Board Considering Joint Employer Regulation
The National Labor Relations Board may eventually use a regulation to resolve the hotly contested joint employer liability debate.
The board is “considering engaging in rulemaking to establish the standard for determining joint-employer status under the National Labor Relations Act,” according to the 2018 regulatory agenda released May 9. The item is listed under “long-term actions,” and the description doesn’t include a target date for a proposed regulation.
NLRB Chairman John Ring said in a May 9 tweet that the board’s Republican majority “will work to issue a proposed rule ASAP, and we will consider the views of all interested parties.”
“How could anyone argue against notice and comment rulemaking?” Ring said. “It’s the most fair process and best way to get everyone’s views on the joint employer standard.”
Democratic board member Lauren McFerran tweeted shortly afterward that decisions as to the regulatory agenda are Ring’s prerogative, not formal board action. And Jennifer Abruzzo, the board’s former acting general counsel under a Democratic majority, told Bloomberg Law May 9 that “NLRB rulemaking is done very infrequently, particularly with regard to reversing case precedent, which is typically done through adjudicatory action.”
The announcement comes as the board is still grappling with how to determine one business’s liability for another business’s workers under federal labor law. An Obama-era NLRB decision making it easier to tag companies as joint employers for unionization purposes remains in effect, despite Republican control of the five-member board.
The board dropped a December decision to revert to a more limited joint employer standard as a result of conflicts-of-interest concerns related to Member William Emanuel’s (R) participation in the case. Abruzzo suggested that the rulemaking is “perhaps” a way “to get around potential recusal issues of current board members.”
Some observers and former board appointees have previously said it’s doubtful the NLRB will actually use the regulatory process to clarify joint employer liability. That’s because of the long and drawn-out public comment process required for rulemaking and the possibility of immediate legal challenges.
“It can’t be entirely aspirational, otherwise they wouldn’t have bothered to put it on there,” Michael Lotito, an attorney with management-side firm Littler Mendelson, told Bloomberg Law. But simply flagging the issue for a possible regulation won’t immediately resolve the debate, he said. “Even if engaged in rulemaking, that doesn’t stop them from having to process cases under the existing standard.”
Several Paths to New Policy
The board typically creates or changes labor policy by reinterpreting the federal statute it’s responsible for administrating on a case-by-case basis. A precedent set in one particular case can then apply to other cases involving similar allegations.
The NLRB often changes those precedents in a partisan manner when a new administration takes control, creating a continuous flip-flopping on important workplace policies.
A federal court could also weigh in on the joint employment issue, by ruling in an appeal of the board’s 2015 decision to expand joint employer liability. Alternatively, the board could take up a new unfair labor case and use it to update the joint employment standard.
A third route, through Capitol Hill, appears to be blocked indefinitely. Legislation to address the issue has stalled because it lacks Democratic support in the Senate.
Until next month,
Lobbyit.com
Lobbyit.com | 1425 K Street, NW | Suite 350 | Washington, DC 20005 | Phone: 202.587.2736 | Fax: 202.747.2727
info@lobbyit.com | lobbyit.com | Copyright © 2011. All Rights Reserved.