Perkins Project on Worker Rights and Wages Policy Watch

The Worker Rights and Wages Policy Watch tracks actions by the Trump administration, Congress, and federal agencies that affect working people and the economy. The goal is to monitor policy actions as they unfold and assess their impact. Do they move us toward a fairer economy in which workers gain as the economy grows?  Or do they favor the already-affluent—including corporate owners and Wall Street?

This clearinghouse, maintained by a team of economists and labor lawyers, catalogues bills, regulations, executive orders, and presidential memoranda. These actions will reveal whether policymakers are working for, or undermining, a fair economy.

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Agency

Hearing: Confirmation Hearing of Secretary of Labor Nominee, Alexander Acosta

Confirmation Hearing of Secretary of Labor Nominee, Alexander Acosta – Senate Committee on Health, Education, Labor, and Pensions.

Actions:

  • Hearing on March 22, 2017

Executive Order on a Comprehensive Plan for Reorganizing the Executive Branch: EO 13781

Description: The executive order instructs the director of the Office of Management and Budget (OMB) to propose a plan to reorganize governmental functions and eliminate unnecessary agencies, components of agencies, and agency programs. Within 180 days of the date of the order, the head of each agency must submit to OMB a proposed plan to reorganize the agency, if appropriate, in order to improve the efficiency, effectiveness, and accountability of the agency. Reorganization plans must focus on the costs of agency programs, and whether some or all of the functions of an agency, a component, or a program are appropriate for the federal government or would be better left to state or local governments or to the private sector.

Fair Economy Impact: The order is a direct attack on the administrative agencies that are charged with protecting everything from the air we breathe, to the water we drink, to the food we eat, in addition to safeguarding our homes, our workplaces, our health, and our economy. Take the Department of Labor, for example, which administers a variety of federal labor laws including those that guarantee workers’ rights to safe and healthful working conditions, a minimum hourly wage and overtime pay, freedom from employment discrimination, unemployment insurance, and other income support. Allowing the Trump administration’s political appointees to target agencies and agency programs for elimination based on costs—not benefits—gives them free rein to put profits ahead of people.

Actions:

  • Issued March 13, 2017

Presidential Memorandum on the Hiring Freeze

Description: The memorandum imposes a freeze on hiring of federal civilian employees. No vacant positions existing at noon on January 22, 2017, may be filled and no new positions may be created. Military personnel are exempted from the hiring freeze. The Office of Management and Budget, in consultation with the Office of Personnel Management, must, within 90 days, recommend a long-term plan to reduce the federal workforce through attrition.

Fair Economy Impact: Federal employees serve the public every day by implementing the federal policies and programs that help America run. This arbitrary hiring freeze hinders the federal government’s ability to serve the American people.

Actions:

  • Issued January 23, 2017

Jobs

Congressional Review Act resolution to block rule establishing appropriate occupations for drug testing: H.J. Res. 42/S.J. Res. 23

Description: The resolution would block the Obama-era rule establishing rules for drug testing applicants for unemployment insurance (UI) benefits. The rule is the result of a 2012 bipartisan compromise that provided for an extension of certain UI benefits, a payroll tax cut, and Medicare provisions. As part of the deal, states were permitted to drug test UI applicants who had been discharged from their last job for drug use or whose only suitable work opportunity is in a field that regularly drug tests workers. The rule directed the secretary of labor to determine which occupations regularly drug test. The Department of Labor issued a rule defining such “occupations” as those that are required, or may be required in the future, by state or federal law, to be drug tested.

Fair Economy Impact: This rule would have clarified circumstances under which individuals filing for unemployment benefits may be subjected to drug testing. Mandatory drug testing for UI applicants is arguably unconstitutional and unnecessarily stigmatizes jobless workers. Conditioning receipt of UI benefits on this type of requirement fundamentally challenges our nation’s UI system, creating the perception that workers do not earn unemployment insurance. However, workers earn the right to unemployment insurance benefits through prior participation in the workforce. Workers only access their earned benefit when they lose their job and are working to find a new one. This rule would have benefited workers who have lost their jobs. The repeal of this rule will benefit opponents of unemployment benefits, and employers seeking reduced payroll taxes (payroll taxes help finance unemployment benefits).

Actions:

  • On February 7, the White House issued a Statement of Administration Policy indicating that the president would sign the resolution.
  • Senate passed (51–48) on March 14, 2017.
  • House passed (236–189) on February 15, 2017.

Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement

Description: The memorandum immediately withdraws the United States as a signatory to the Trans-Pacific Partnership (TPP) and directs permanent withdrawal from TPP negotiations. The memorandum instructs the U.S. Trade Representative to pursue, wherever possible, bilateral trade negotiations.

Fair Economy Impact: It is critical to a fair economy that trade agreements include meaningful and enforceable worker protections. Further, it is critical for trade agreements to stop intentionally eroding protections for American workers’ wages and jobs while simultaneously providing explicit protections for corporate profits. Going forward, there is no reason to think, however, that a renewed focus on bilateral agreements will be better for American workers if those new agreements do not contain protections for workers.

Actions:

  • Issued January 23, 2017

Regulation

Executive Order on Enforcing the Regulatory Reform Agenda: EO 13777

Description: The order mandates that the head of each agency (other than those agencies given waivers) designate an agency official as its Regulatory Reform Officer (RRO) to oversee the implementation of regulatory reform initiatives and policies. The RRO is charged with ensuring that agencies effectively carry out regulatory reforms. The order also requires that each agency establish a Regulatory Reform Task Force. These task forces are required to identify existing regulations for replacement or repeal, with a focus on the costs of regulations and job impacts.

Fair Economy Impact: The order requires the identification of regulations for repeal based largely on the cost of the regulation, rather than whether the regulation provides a public benefit. The economic impact of a regulation depends not just on the costs of the rule, but also the benefits to workers, safety, health, the environment, and other public goods. Focusing on lowering the costs to business places corporate interests ahead of workers’ interests in a safe workplace and the public’s interest in a healthy environment.

Actions:

  • Issued February 24, 2017

Executive Order on Reducing Regulation and Controlling Regulatory Costs: EO 13771

Description:   The order mandates that for every new regulation issued, at least two prior regulations be identified for elimination. For fiscal 2017, heads of all agencies are directed that the total incremental cost of all new regulations, including the cost savings associated with eliminating the two prior regulations, must be no greater than zero—unless otherwise required by law or consistent with written advice of the director of the Office of Management and Budget.

Fair Economy Impact:  President Trump’s “2-for-1” executive order requires federal agencies to assess whether a regulation is worthwhile based solely on costs – regardless of the benefits of the regulation. The executive order mentions costs 18 times, but never once mentions benefits. This emphasis on costs threatens regulations that protect workers, consumers, and the environment. Compliance with rules is part of the overall cost of conducting business in a way that doesn’t cause harm to workers and the environment. Rules that, for example, prevent workplace injuries provide great benefits to workers who would otherwise bear the costs of injury, through emergency room visits, medical bills, and absence from work.

Actions:

  • Issued January 30, 2017

Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing

Description: The memorandum directs the Secretary of Commerce to solicit comments from the public (for period not to exceed 60 days) concerning federal actions to streamline permitting and reduce regulatory burdens for domestic manufacturers. The memorandum also directs the Secretary of Commerce to develop a permit-streamlining action plan and send it to the president within 60 days of outreach process.

Fair Economy Impact: While the impact on the economy remains to be seen from this memorandum, any plan presented regarding regulations on domestic manufacturing must ensure basic safeguards for workers in order to achieve a more fair economy.

Actions:

  • Issued January 24, 2017

Presidential Memorandum on Regulatory Freeze Pending Review

Description: The memorandum instructs agency heads to send no regulation to the Federal Register until a department or agency head appointed or designated by the president reviews and approves the regulation, and to withdraw pending regulations not yet published. The memorandum temporarily postpones, for 60 days from the date of memo, rules published that have not taken effect.

Fair Economy Impact: The memorandum is similar to memos issued by previous administrations when first entering office.

Actions:

  • Issued January 20, 2017

Retirement Security

Department of Labor announcement of a proposed delay of the fiduciary rule

Description: The U.S. Department of Labor has announced a proposed extension of the applicability dates of the fiduciary rule from April 10 to June 9, 2017. The announcement follows a presidential memorandum issued on February 3, 2017, which directed the department to examine the fiduciary rule to determine whether it may adversely affect the ability of Americans to gain access to retirement information and financial advice.

Fair Economy Impact: The rule simply requires financial advisers to provide what most clients probably already think they are receiving: advice about their retirement plans untainted by conflicts of interest. It would prohibit common practices such as steering investments to companies that pay the adviser a commission. The financial industry strongly opposes this rule because it wants to preserve a system that allows financial advisers to give their clients advice that is in the adviser’s interest rather than the client’s. Conflicted advice leads to lower investment returns, causing real losses—an estimated $17 billion a year—for the clients who are victimized. The delay of the rule, ostensibly to further investigate its impacts, is a thinly veiled attempt to kill it. As part of the rulemaking process that the Department of Labor undertook to finalize the fiduciary rule, the department prepared a 382-page cost-benefit analysis examining in detail the expected economic impact of the rule. This was the culmination of a roughly six-year process that incorporated the feedback from four days of hearings, more than 100 stakeholder meetings, and thousands of public comments. Delaying the rule to revisit questions that have already been so thoroughly investigated is irresponsible and unjustifiable. Delaying the rule would cost retirement savers $3.7 billion over the next 30 years.

Actions:

  • Issued March 1, 2017

Congressional Review Act Resolution to block rules Providing for State and Local Savings Initiatives for Private Employees: H.J. Res 66 and H.J. Res. 67

Description:  The resolutions would block two Obama-era rules that assist states and municipalities that create Individual Retirement Account (IRA) programs for private-sector workers.  Some states and municipalities are moving forward with initiatives that would require employers that do not offer a workplace retirement plan to automatically enroll workers in payroll deduction IRAs administered by the state or municipality. The Obama-era rules clarify that such plans, if funded entirely through voluntary employee contributions, are not covered by the Employee Retirement Income Security Act (ERISA), the federal law governing private-sector employer-sponsored retirement plans.

Fair Economy Impact: An estimated 55 million private-sector wage and salary workers ages 18-64 do not have access to a retirement savings plan through their employers.  State and local payroll deduction savings initiatives encourage employees to contribute to tax-favored IRAs through automatic payroll deduction.  These savings initiatives provide important assistance to workers in saving for retirement because few workers contribute to a retirement plan outside of work. By clarifying the legal status of these plans, the Obama-era rules allayed concerns that employers, states, municipalities or the plans themselves could take on unwanted liabilities or duties under ERISA. The Government Accountability Office warned that such legal uncertainties could delay or deter states’ efforts to expand coverage.

Actions:

  • House Passed (HJ Res. 66: 231-193 / H.J. Res. 67: 234-191) on February 15, 2017.
  • Received in the Senate February 16, 2017
  • On March 13, 2017, The White House issued a Statement of Administration Policy indicating that the president would sign the resolution.

Presidential Memorandum on Fiduciary Duty Rule

Description: The memorandum directs the secretary of labor to examine the fiduciary rule and “prepare an updated economic and legal analysis concerning the likely impact of the Fiduciary Duty Rule.” According to the memorandum, if the labor secretary determines that the rule is likely to harm investors, will result in “dislocations or disruptions within the retirement services industry,” or “cause an increase in litigation,” then the labor secretary should begin the administrative process to rescind or revise the rule.

Fair Economy Impact: The rule simply requires financial advisers to provide what most clients probably already think they are receiving: advice about their retirement plans untainted by conflicts of interest. It would prohibit common practices such as steering investments to companies that pay the adviser a commission. Opponents of the fiduciary rule want to preserve a system that allows financial advisers to give their clients advice that is in the adviser’s interest rather than the client’s. Conflicted advice leads to lower investment returns, causing real losses for the clients who are victimized.

Actions:

  • Issued February 3, 2017

Unions and organizing

Hearing: Tribal Labor Sovereignty Act of 2017

U.S. House of Representatives, Committee on Education and the Workforce – HELP Subcommittee, “H.R. 986, Tribal Labor Sovereignty Act of 2017”

Actions:

  • Hearing on March 29, 2017

Hearing: Restoring Balance and Fairness to the National Labor Relations Board

U.S. House of Representatives, Committee on Education and the Workforce – HELP Subcommittee, “Restoring Balance and Fairness Needed to the National Labor Relations Board”

Actions:

  • Hearing on February 14, 2017

 

Wages

Hearing: Federal Wage and Hour Policies in the Twenty-First Century Economy

U.S. House of Representatives, Committee on Education and the Workforce – Workforce Protections Subcommittee, “Federal Wage and Hour Policies in the Twenty-First Century Economy”

Actions:

  • Hearing on February 16, 2017

Worker safety

Congressional Review Act resolution to block the Department of Labor’s rule titled, “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness”: H.J. Res. 83 / S.J. Res. 27

Description:  The resolution would block an Obama-era rule that involves an employer’s duty to keep accurate logs of workplace injuries and illnesses.  Under the Occupational Safety and Health Act, many employers are legally required to keep records of workplace injuries and illnesses, and to maintain those records for 5 years.  The Obama-era rule clarified that an employer could be issued a citation and fined for failure to properly record a workplace injury/illness any time during that 5-year period.  The resolution would block this rule.

Background:  Since the early 1970s, the Occupational Safety and Health Administration (OSHA) has required many employers to keep careful records of workplace injuries and illnesses, and to maintain those records for 5 years.  If an employer’s injury/illness logs are inaccurate – for example, if a worker is injured on the job and the employer fails to log it – OSHA can issue a citation and fine.  For the past 40 years, OSHA had been issuing those citations any time within the 5-year period that the illness/injury record is required to be kept.

In 2012, the D.C. Circuit Court of Appeals ruled that if a worker got injured, OSHA only had six months to check an employer’s log and issue a citation if the injury was not recorded.  That meant that even though employers must maintain injury/illness records for five years, if OSHA inspectors do not catch the employer’s record omission within the first six months after the injury, the employer will get off the hook.  Since OSHA inspections generally take longer than 6 months, the court’s ruling made it a lot harder for OSHA to punish companies for bad record keeping.  One of the judges on the court, though, wrote that OSHA could issue a new rule clarifying employers’ recordkeeping duties.

In response, OSHA promulgated the rule to allow OSHA to resume what it had been doing for the last 40 years:  citing an employer for failure to log an injury/illness anytime within the entire 5-year period that the record of injury must be kept.  This rule created no new record keeping requirements for employers, it just allowed OSHA more time to do its work.

Fair Economy Impact: If Congress passes the resolution to block this rule, they are giving employers a get-out-of-jail free card when employers fail to maintain – or falsify – their injury/illness logs.  These records are not just paperwork:  If an employee is injured on the job (say cut or burned, or worse, suffers an amputation or fatality) then it is the employer’s duty to record that injury and investigate what happened.  Failure to keep injury records means that employers, OSHA, and workers cannot learn from past mistakes, and makes it harder to prevent the same tragedies from happening to others in the future.

Actions:

  • House Passed (231-191) on March 1, 2017.
  • Senate Passed (50-48) on March 22, 2017.
  • On February 28, The White House issued a Statement of Administration Policy indicating that the president would sign the resolution.

Congressional Review Act resolution to block Fair Pay and Safe Workplaces rule: H.J. Res. 37/S.J. Res. 12

Description: The resolution would block the Obama-era rule that requires federal contractors to disclose workplace violations—specifically violations of federal labor laws and executive orders that address wage and hour, safety and health, collective bargaining, family medical leave, and civil rights protections. The rule directs that such violations be considered when awarding federal contracts. In addition, the rule mandates that contractors provide each worker with written notice of basic information including wages, hours worked, overtime hours, and whether the worker is an independent contractor. Finally, the rule prohibits contractors from requiring workers to sign pre-dispute arbitration agreements for discrimination, harassment, or sexual assault claims.

Fair Economy Impact: Currently, there is no effective system to ensure that taxpayer dollars are not awarded to contractors who violate basic labor and employment laws. As a result, the federal government awards billions of dollars in contracts to companies that break the law. This rule would have helped ensure that federal contracts (and taxpayer dollars) are not awarded to companies with track records of labor and employment law violations. Workers, taxpayers, and law-abiding contractors would have benefited from this rule. Contractors with records of cutting corners by violating labor and employment laws will benefit from the congressional resolution to block this rule.

Actions:

  • On February 1, the White House issued a Statement of Administration Policy indicating that the president would sign the resolution.
  • Senate passed (49–48) on March 6, 2017.
  • House passed (236–187) on February 2, 2017.

Glossary of terms

Presidential memorandum: Directive by the president used to govern the actions of government officials and agencies; does not need to be published unless the president determines that the memo has “general applicability and legal effect.”

Executive order: Directive by the president used to govern or direct actions of government officials or agencies; must be published in the Federal Register.

Statement of administration policy: Formal means through which the president comments on legislation pending before Congress; indicates intent to support or veto a measure.

Congressional Review Act (CRA): Oversight tool which provides for a special set of procedures for considering a joint resolution disapproving an agency final rule. It requires only a majority vote in the Senate.  Enactment of a CRA joint resolution of disapproval blocks the rule from taking effect and, when a rule has already taken effect, it prohibits the rule from continuing to be in effect.

Joint resolution: Legislative measure which, with one exception (constitutional amendment), requires approval of both chambers of Congress and is submitted to the president for signature into law.