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.
Robert Lighthizer confirmed by the Senate (82-14) as United States Trade Representative.
- Confirmed May 11, 2017
Alexander Acosta confirmed by the Senate (60-38) as Secretary of Labor.
- Confirmed April, 27, 2017
- Approved by Senate HELP Committee (12-11) March 30, 2017
- Hearing on March 22, 2017
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.
- Hiring freeze was lifted pursuant to guidance from OMB Memo, April 12, 2017
- Issued January 23, 2017
Description: On April 4, 2017, the Trump Department of Labor (DOL) announced a recommitment to using its existing enforcement authority on the H-1B visa program—a guestworker program for workers in professional occupations.
Fair Economy Impact: American employers have for too long used temporary guestworker visa programs to carve out an ever-larger zone in labor markets where workers are powerless to assert their rights. DOL announced it will initiate investigations of employers, engage stakeholders on the program, look into abuses of the program by H-1B-dependent employers (those with large shares of their workforces composed of H-1B workers), and also consider changes to the Labor Condition Application to improve transparency in the H-1B process.
Immigration policy should aim to provide fair pay and benefits to American workers and immigrants, not simply to provide employers with cheap labor from workers who are virtually indentured to them. DOL’s announcement did not provide specific information about its plan or about how DOL will conduct this enforcement given the massive cuts to the Labor Department included in President Trump’s proposed fiscal year 2018 budget. So while it is encouraging that the Trump DOL has signaled that it will examine the H-1B program, it remains to be seen whether this announcement will lead to enhanced enforcement that would benefit U.S. workers. Furthermore, the Trump administration’s criminalizing and scapegoating of immigrants has created a political climate in which meaningful immigration reforms are much more difficult to achieve.
Description: President Trump proposed drastic cuts to worker protection agencies in his fiscal 2018 budget blueprint.
Fair Economy Impact: The Trump administration’s budget blueprint for fiscal year 2018 proposes a 20 percent cut ($2.5 billion) to funding for DOL—the department tasked with enforcing the majority of this nation’s worker protection laws and administering our job training and workforce development programs. The budget outline fails to specify how that cut will be allocated across DOL’s worker protection agencies, but the magnitude of the cuts makes it clear that the Trump administration does not value DOL’s enforcement programs. Programs likely to suffer are the Wage and Hour Division (which enforces minimum wage protections and protects workers from wage theft), OSHA (which enforces worker safety protections including inspecting worksites for hazardous working conditions), and the Employee Benefits and Security Administration (which safeguards workers’ retirement savings). While it is unlikely that this proposal will be reflected in actual funding levels, it reveals Trump’s priorities when it comes to our nation’s workers.
- President Trump released proposed budget on March 15, 2017
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.
- Issued March 13, 2017
Description: On January 20, 2017—his very first day in office, Trump officially nominated his choice for secretary of labor: Andrew Puzder, CEO of a company with a record of labor law violations.
Fair Economy Impact: Trump failed U.S. workers with his nomination of Andrew Puzder. Puzder, then-CEO of CKE Restaurants (the parent company of Carl’s Jr. and Hardee’s), has opposed raising the minimum wage and the overtime threshold, criticized paid sick time proposals and health and safety regulations, and headed a company with a record of violating laws and regulations that protect workers’ wages, safety, and rights. While his nomination was ultimately withdrawn, Trump’s original selection made a powerful statement—the president was prepared to support a labor nominee who is hostile to policies that would benefit our nation’s workers. Instead of nominating someone who respects and follows the law and who would be committed to enforcing our labor and employment laws, Trump sent a clear message with his first nomination: the Trump administration does not value America’s workers.
Description: On April 18, 2017, President Trump signed an executive order calling for a review of government procurement commitments in the World Trade Organization and other trade deals.
Fair Economy Impact: It is important to evaluate American trade policy rules to ensure that they maximize benefits for American workers; however, this executive order fails to outline any remedy for discovered imbalances with foreign countries in government procurement opportunities. The executive order also instructs agencies to look into new rules that could be proposed or existing rules that could be updated to improve the immigration system and root out fraud and abuse. One section of the executive order focuses on the H-1B program, directing agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” This is the first clear signal that Trump may propose a regulation to end the process of issuing H-1B visas via random lottery. The nation’s immigration system is in need of reform. However, this executive order offers no concrete reforms.
U.S. Department of Labor announces plans to protect American workers from H-1B program discrimination
Description: The H-1B program provides temporary, nonimmigrant U.S. work visas for college-educated workers and fashion models from abroad. The Department of Labor announced it will use its existing authority to initiate investigations of H-1B program violators, in coordination with the departments of Homeland Security and Justice; consider changes to the Labor Condition Application for future application cycles; and continue to engage stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes.
Fair Economy Impact: While it is important to attract skilled, talented workers to the United States, the reality is that the biggest beneficiaries of the H-1B program are outsourcing companies that have hijacked the system—using between one-third to one-half of the visas—to replace thousands of U.S. workers with much-lower-paid H-1B workers while also sending tech jobs abroad. In addition, these outsourcing companies rarely provide H-1B employees with a path to permanent residence and citizenship. Reforms to the H-1B visa program that would help achieve a fair economy would include making the program fairer for U.S. workers, who should have the first opportunity to apply for jobs in the United States, and fairer to H-1B workers, who deserve fair pay for their work according to U.S. wage standards and who should not have to fear retaliation and exploitation by employers.
- Issued April 4, 2017.
Congressional Review Act resolution to block rule establishing appropriate occupations for drug testing: H.J. Res. 42/S.J. Res. 23
Description: The resolution blocks 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).
- President Trump signed into law on March 31, 2017
- Senate passed (51–48) on March 14, 2017
- House passed (236–189) on February 15, 2017
- On February 7, the White House issued a Statement of Administration Policy indicating that the president would sign the resolution.
Description: On March 31, 2017, President Trump signed two executive orders focused on evaluating trade policy:
- Presidential Executive Order Regarding the Omnibus Report on Significant Trade Deficits and;
- Presidential Executive Order on Establishing Enhanced Collection and Enforcement of Antidumping and Countervailing Duties and Violations of Trade and Customs Laws.
Fair Economy Impact: Any reexamination of U.S. trade policies and their effects on workers is welcome and long overdue. But the impact of these executive orders on U.S. workers remains unclear. The first order directs the secretary of commerce and the White House National Trade Council to identify practices that contribute to the U.S. trade deficit with different countries. The second order calls for stepping up collection of anti-dumping and countervailing duties, focusing on small fines for past unfair trade practices.
The first executive order does little beyond delay much-needed reform. The causes of trade imbalances are well known. Chief among these is the inflated value of the U.S. dollar. If the president were truly interested in adopting trade policies that would benefit U.S. workers and our economy, he would address currency valuation now instead of requesting additional evaluation of the issue.
The second executive order is similarly off the mark about protecting American workers. While enforcement of fair trade practices is critical to safeguarding U.S. workers and our economy, a focus on past unfair trade practices does nothing to ensure that trade policies are complied with in the future. And while recovering fines for past unfair trade practices will have some economic benefit, that benefit will be small compared with the U.S. goods trade deficit. Consider that the estimated total uncollected fines between 2001 and 2016 of $2.8 billion are the equivalent of a 0.1 percent tariff. It is unlikely that focusing on past unfair trade practices and uncollected fines will have any meaningful benefit for our nation’s workers and our economy moving forward.
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.
- Issued January 23, 2017
Description: The act requires agencies to produce a publicly available list of each pending regulation, and similar list of public communications the agency makes about each regulation, and to make reports to Congress. Under the act, any public communication issued by an executive agency that refers to a pending agency regulatory action may not directly advocate (for or against) the pending action, appeal to the public to, or solicit a third party to undertake advocacy in support of or against the pending agency regulatory action. The act also prohibits public communication by an executive agency regarding a pending regulatory action to be directly or indirectly for publicity or propaganda.
Fair Economy Impact: This legislation imposes restrictions on agency communications. Fear of violating the act will likely lead agencies to limit communications on regulatory proposals, depriving the public of information on proposed rules and preventing agencies from the benefit of public engagement.
- S. 951 reported out from Senate Committee on Homeland Security and Governmental Affairs May 17, 2017
- Received in the Senate March 2, 2017
- H.R. 1004 Passed by the House (246-176) March 2, 2017
Description: In order for a major rule to take effect, the agency proposing the major rule must submit its report on the rule to Congress, and Congress must enact a joint resolution of approval within 70 session days or legislative days. A major rule may take effect for 90 days without such approval if the president determines it is necessary because of an imminent threat to health or safety or other emergency, for the enforcement of criminal laws, for national security, or to implement an international trade agreement.
Fair Economy Impact: This legislation shifts regulatory power from agency officials with subject-matter expertise to members of Congress, enabling regulated entities to lobby against proposals that would benefit the public but impose burdens on the entities. Requiring congressional approval of a major rule is counter to rulemaking processes established by the Administrative Procedures Act and will lead to a politicized process.
- S. 21 reported out by Senate Committee on Homeland Security and Governmental Affair May 17, 2017
- Received in the Senate January 6, 2017
- H.R. 26 passed by the House (237-187) January 5, 2017
Description: The act codifies and revises the centralized regulatory review process, currently required under executive order, for the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget to. Under the act, OIRA must chair the Regulatory Working Group that assists agencies with regulatory issues, publish a unified agenda of each agency’s regulations that are under development or review, and review each agency’s significant regulatory actions. With these requirements, OIRA’s review is expanded to include the significant regulatory actions of independent regulatory agencies. Excluded from OIRA’s review are the Government Accountability Office, the Federal Election Commission, the governments of the District of Columbia and of the territories and possessions of the United States, and government-owned contractor-operated facilities.
Fair Economy Impact: The legislation imposes numerous, burdensome requirements on agencies engaged in rulemaking. Furthermore, it undermines independent agencies, some of which are responsible for holding Wall Street accountable (the Consumer Financial Protection Bureau for example), by requiring that those agencies report to the Office of the President when issuing a regulation. This requirement politicizes agencies that are congressionally mandated to act independent of the administration.
- Received in the Senate March 2, 2017
- Passed by the House (241-184) March 1, 2017
Searching for and Cutting Regulations that are Unnecessarily Burdensome Act (SCRUB Act): H.R. 998 Rep. Smith (R-MO)
Description: The SCRUB Act would establish a “Retrospective Regulatory Review Commission,” consisting of political appointees, to identify regulations to eliminate or modify to “lower the cost to the economy.” When targeting regulations for elimination, the commission would consider only the costs associated with the rule, as opposed to conducting a true cost-benefit analysis. For example, the bill directs the commission to consider if there is a less costly alternative to the rule—without requiring that they also consider the benefits of potential alternatives.
Fair Economy Impact: This legislation focuses on the costs associated with a regulation as opposed to balancing costs with the benefits to the public—including worker health and safety, consumer protection, and environmental protection.
- Received in the Senate March 2, 2017
- Passed by the House (240-185) March 1, 2017
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.
- Issued February 24, 2017
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.
- 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.
- Issued January 24, 2017
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.
- Issued January 20, 2017
Description: The Regulatory Accountability Act of 2017 includes significant changes to the rulemaking procedures that apply to all federal agencies. These include requirements to analyze “any substantial alternatives” to a rule identified by “interested persons,” hold public hearings on “high impact rules” at the request of any individual, and choose the lowest-cost alternatives that meet statutory objectives. It also ends the precedent of judicial deference to agencies on statutory and regulatory interpretations.
Fair Economy Impact: This legislation provides potentially regulated entities and their allies with unprecedented power to interfere with and delay the regulatory process. The bill requires agencies to consider costs associated with rulemaking as opposed to balancing costs with public benefits.
- Received in the Senate January 12, 2017
- Passed by the House (238-183) January 11, 2017
Description: The U.S. Department of Labor has implemented a 60-day 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 will cost retirement savers $3.7 billion over the next 30 years.
- Hearing: Subcommittee on Health, Employment, Labor and Pensions May 18, 2017
- Rule implementation delayed until June 9, 2017.
- Delay issued April 7, 2017.
Congressional Review Act Resolution to block rule Providing for State Savings Initiatives for Private Employees: H.J. Res 66
Description: The resolution would block the Obama-era rule that assists states that create Individual Retirement Account (IRA) programs for private-sector workers. Some states 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. The Obama-era rule clarifies 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 rule 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.
Congressional Review Act Resolution to block rule Providing for Local Savings Initiatives for Private Employees: H.J. Res. 67
Description: The resolution would block the Obama-era rule that assists municipalities that create Individual Retirement Account (IRA) programs for private-sector workers. Some 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 rule clarifies 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 local efforts to expand coverage.
- President signed into law April 13, 2017
- Senate Passed 50-49 on March 30, 2017
- On March 13, 2017, The White House issued a Statement of Administration Policy indicating that the president would sign the resolution.
- House Passed 234-191 on February 15, 2017
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.
- Issued February 3, 2017
Description: This bill amends the Surface Mining Control and Reclamation Act of 1977 to transfer certain funds to the Multiemployer Health Benefit Plan and the 1974 United Mine Workers of America (UMWA) Pension Plan to provide health and pension benefits to retired coal miners and their families.
Fair Economy Impact: The United Mine Workers of America health care and pension fund faces insolvency because of a string of coal-industry bankruptcies. This looming insolvency would leave thousands of retired miners without the retirement and health care benefits they earned. Pension and health care obligations should be honored as part of a fair economy.
- Introduced in Senate January 17, 2017
- Introduced in House January 3, 2017
Unions and organizing
Description: When workers seek to organize and bargain collectively, employers often hire union avoidance consultants – also known as “persuaders” – to orchestrate and roll out anti-union campaigns. Union avoidance consultants may engage with workers directly to deliver their anti-union presentations, such as in face-to-face meetings. Or they may attempt to influence workers indirectly by operating behind the scenes, by creating anti-union flyers, speeches, and videos for management to use to communicate with employees.
In 1959, Congress enacted the Labor Management Reporting and Disclosure Act (LMRDA), which requires employers and union avoidance consultants to publicly disclose to the Department of Labor (DOL) how much money employers paid for anti-union services. But for nearly 50 years, employers have been exploiting a loophole in the law that allows them to avoid reporting indirect anti-union work that union avoidance consultants do behind the scenes. On March 24, 2016, the DOL attempted to close that loophole with its persuader rule, which would have required employers and hired consultants to report their indirect anti-union activities. The rule has not yet been implemented because employer groups tied it up in litigation in federal court in November 2016.
The DOL has now published a notice of proposed rulemaking to repeal the Obama-era rule.
Fair Economy Impact: The persuader rule closed a massive reporting loophole that has allowed employers to keep indirect persuader activity secret. Disclosure of the large amounts of money employers pay to anti-union consultants – sometimes hundreds of thousands of dollars – would allow workers to know whether the messages they hear are coming directly from their employer, or from a paid, third-party consultant. Seeing how much money employers are paying out to these consultants would provide important perspective on employers’ frequent argument that the company cannot afford to pay union wages, and would give workers the information they need to make informed choices as they pursue their right to organize. The persuader rule would have helped level the playing field for workers who want to join together to negotiate with their employer for better working conditions.
- DOL published Notice of Proposed Rulemaking to rescind the persuader rule on June 12, 2017
Description: The legislation amends the National Labor Relations Act (NLRA) to provide that any enterprise or institution owned and operated by an Indian tribe and located on the tribe’s land is not considered an employer under the NLRA.
Fair Economy Impact: The legislation would deprive thousands of workers of protections they receive under the National Labor Relations Act. Workers employed by for-profit tribal enterprises would lose the right to collectively bargain for better wages and working conditions as well as the right to engage in protected concerted activity with their coworkers. Many other federal employment statutes apply to for-profit tribal enterprises, including the Fair Labor Standards Act, the Family and Medical Leave Act, and the Employee Retirement Income Security Act.
- Hearing: U.S. House of Representatives, Committee on Education and the Workforce – HELP Subcommittee March 29, 2017
- Introduced in House February 9, 2017
- Introduced in Senate January 9, 2017
Description: The bill would prohibit the federal government from requiring project labor agreements on federally funded construction projects. A project labor agreement (PLA) is a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project.
Fair Economy Impact: Prohibiting the use of project labor agreements when awarding federal construction contracts would most likely lead to lower wages for the employees who work on federal construction projects. Because unions’ collective bargaining power has been eroded over the years, construction wages are lower today than they were in 1970, despite 40 years of economic growth and a higher national income. Prohibiting workers having a seat at the table to negotiate a project labor agreement would put less money in construction workers’ pockets.
- Introduced in House March 15, 2017
- Introduced in Senate March 14, 2017
Description: The bill would allow employees who work in a unionized workplace, but decline to become union members, to refuse to pay a fair share fee to the union that represents all employees in the workplace, union members and nonmembers alike. The term “right-to-work” does not mean everyone is guaranteed a job, but instead means employees can work at a unionized workplace without paying any contribution to the union that negotiates for their benefits. Currently, the National Labor Relations Act permits each state to choose whether it wants to allow these so-called “right to work” arrangements, and many states have passed “right-to-work” laws prohibiting fair share payments in the state. This bill seeks to prohibit fair share payments nationwide.
Fair Economy Impact: This bill would undermine unions’ bargaining strength by making it harder for workers’ organizations to sustain themselves financially. For example, since unions are required by law to represent both members and non-members, unions must spend their resources to represent non-members when they file grievances against the employer. This creates a free-rider problem for unions, who must expend resources to assist workers who do not pay their fair share in union dues. It is also unfair to union members who do pay their fair share in dues. This legislation would further weaken unions and the workers they represent while continuing to strengthen corporate profits for shareholders and CEOs. Because unions are able to negotiate higher pay, wages are 3.1 percent lower in so-called “right-to-work” states, for union and nonunion workers alike, even after accounting for differences in cost of living, demographics, and labor market characteristics.
- Introduced in Senate March 7, 2017
- Introduced in House February 1, 2017
U.S. House of Representatives, Committee on Education and the Workforce – HELP Subcommittee, “Restoring Balance and Fairness Needed to the National Labor Relations Board”
- Hearing on February 14, 2017
Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act: H.R. 987 Rep. Rokita (R-IN) / S. 155 Sen. Rubio (R-FL)
Description: The legislation amends the National Labor Relations Act to permit employers who are a party to a collective bargaining agreement to provide additional pay to individual employees covered by the collective bargaining agreement without negotiating with the union.
Fair Economy Impact: The legislation attacks collective bargaining and unions. Collective bargaining agreements establish the terms and conditions of employment for bargaining unit employees. Permitting employers to reach separate agreements with individual workers outside of the collective bargaining process defeats collective bargaining. Workers covered by collective bargaining agreements are more likely to earn higher wages, receive paid leave, and have employer-provided health care.
- Introduced in House February 9, 2017
- Introduced in Senate January 17, 2017
Description: The legislation would amend the Fair Labor Standards Act (FLSA) to allow private-sector employers to “compensate” hourly workers with compensatory time off in lieu of overtime pay.
Fair Economy Impact: The legislation does not create employee rights, rather it creates a new employer right – the right to delay paying any wages for overtime work for as long as 13 months. The legislation forces workers to compromise their paychecks for the possibility – but not the guarantee – that they will get time off from work when they need it. At no risk to the employee, the FLSA already allows an employer to grant time off to employees who work overtime. H.R. 1180 adds nothing but delay and risk to the employees’ right to receive extra compensation when they work more than 40 hours in a week.
- Passed the House (229-197) on party line vote, May 2, 2017
- On May 2, 2017, The White House issued a Statement of Administration Policy indicating the President would sign the legislation
- Hearing April 5, 2017, in House Committee on Education and the Workforce, Subcommittee on Workforce Protections
- Introduced in Senate April 3, 2017
- Introduced in House February 16, 2017
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”
- Hearing on February 16, 2017
Description: The legislation repeals the Davis-Bacon Act, which requires that workers engaged in federally funded construction projects be paid no less than the local prevailing wage as determined by the Secretary of Labor.
Fair Economy Impact: Davis-Bacon prevailing wage protections ensure that the federal government, as a major buyer in the construction sector, does not drive down local construction-worker wages.
- Introduced in House January 30, 2017
- Introduced in Senate January 30, 2017
Occupational Safety and Health Administration has halted an Obama-era rule requiring employers to submit workplace injury and illness data for posting online
Description: The Occupational Safety and Health Administration (OSHA) delayed a rule that requires employers to electronically submit injury and illness data that they already record. Under the Occupational Safety and Health Act of 1970, many employers with more than 10 employees are required to keep a record of serious work-related injuries and illnesses. (Certain low-risk industries are exempted.) Minor injuries requiring first aid only do not need to be recorded. OSHA’s electronic submission rule, which took effect Jan. 1, 2017, requires certain employers to electronically submit the injury and illness data that they are already required to record. Some of the data will also be posted to the OSHA website, as “OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public.” The rule also prohibits employers from retaliating against workers for reporting injuries or illnesses.
In announcing the delay, OSHA posted this statement on its website: “OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information electronically. Updates will be posted to this webpage when they are available.”
Fair Economy Impact: The Trump Administration’s action in delaying this OSHA rule is a further example of its hostility toward transparency and lack of concern for worker safety. OSHA’s delay follows a petition filed earlier this month by the Chamber of Commerce, the National Association of Home Builders, the National Chicken Council and several others industry associations, requesting that the Department of Labor delay the rule and re-open rulemaking. According to former OSHA Assistant Secretary David Michaels, “This action demonstrates that the Trump Administration continues to put corporate interests over worker safety, and shows they have no commitment to following the rule of law.” This delay follows the DOL’s delay of the Silica Rule and re-opening of the Beryllium Rule. Despite his campaign promises to help workers, Trump is not building a pro-worker administration, and workers will pay the price for rolling back these basic safety protections.
- Delay of enforcement announced on May 17, 2017
- Rule delayed until July 1, 2017
Department of Labor announcement of delay of the Crystalline Silica Standard for the construction industry
Description: The Department of Labor announced a 3-month delay in the enforcement of the final rule on Occupational Exposure to Crystalline Silica in the construction industry, which established a new permissible exposure limit for construction workers. The rule is comprised of two permissible exposure standards, one for Construction and one for General Industry and Maritime. The rule became effective June 23, 2016, and enforcement was to begin on June 23, 2017. The Department stated that its decision to delay enforcement was based on the desire to conduct additional outreach to the regulated community and to provide additional time to train compliance officers.
Fair Economy Impact: The Occupational Safety and Health Administration (OSHA) issued this rule to reduce workers’ exposure to cancer-causing respirable crystalline silica. Studies have linked exposure to silica to lung cancer, silicosis, chronic obstructive pulmonary disease and kidney disease. About 2.3 million workers are exposed to respirable crystalline silica in their workplaces, including 2 million construction workers who drill, cut, crush, or grind silica-containing materials such as concrete and stone. Responsible employers have been protecting workers from harmful exposure to silica for years, using widely-available equipment that controls silica dust with a simple water spray to wet the dust down, or a vacuum system to contain the dust. OSHA estimates that the rule will save over 600 lives and prevent more than 900 new cases of silicosis each year, once its effects are fully realized. The final rule already had a built-in, one-year grace period to give employers time to adjust their practices. Further delaying enforcement of this rule needlessly puts workers’ lives at risk, and is unfair to responsible employers who do not cut corners with health and safety.
- Announced on April 6, 2017
- Enforcement delayed until September 23, 2017
Description: The Senate confirmed President Trump’s nominee Neil Gorsuch to the Supreme Court
Fair Economy Impact: On April 7, 2017, the Senate confirmed Trump’s choice, Neil Gorsuch, to fill the vacant seat on the Supreme Court. This confirmation will significantly affect this nation’s workers. Over the next few terms, the Supreme Court is likely to decide several cases that will dramatically impact workers’ rights, and will issue decisions that could undermine the foundational legal principles workers rely on to have a voice in their workplaces. Significant cases involving collective bargaining, forced arbitration, and employment discrimination are all either already on the docket for the next term or likely to be on the docket in the coming years. And Gorsuch has a record of ruling in favor of employers in workers’ rights cases.37
To highlight one example: Gorsuch was questioned extensively at his confirmation hearing about his dissent in the TransAm Trucking, Inc. v. Administrative Review Board case.38 The majority of a three-judge Tenth Circuit panel upheld an Administrative Review Board ruling in favor of a truck driver who refused to follow his supervisor’s orders to either drag his trailer—which had frozen brakes—or remain with the stranded trailer (in subzero temperatures with no heat) until a repair person arrived. Because he was experiencing symptoms of hypothermia, the driver unhitched the trailer from the truck and drove to a gas station. He was fired for violating company policy by abandoning his trailer while under dispatch. However, under the Surface Transportation Assistance Act, a truck driver may not be fired for refusing to operate a vehicle when he reasonably fears for his or others’ safety. An administrative law judge, the Administrative Review Board, and the Tenth Circuit majority held that the driver had been unlawfully fired. Only Gorsuch dissented.
Gorsuch’s dissent in this case suggests a hostility to fundamental worker protections. In his dissent, he describes health and safety goals as “ephemeral and generic” and views a worker having to wait in subzero temperatures with no access to heat while experiencing symptoms of hypothermia as merely “unpleasant.” This language indicates that Judge Gorsuch does not understand workers’ lives or the laws that protect them. His dissent should raise serious concerns for working men and women about his treatment of protections in other labor and employment laws.
- President Trump nominated Neil Gorsuch on January 31, 2017
- Senate Confirmed on April 7, 2017
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 blocked 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 nullified 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: When Congress passed, and President Trump signed, the resolution to block this rule, they gave 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.
- President Trump signed into law April 3, 2017
- Senate Passed (50-48) on March 22, 2017
- House Passed (231-191) on March 1, 2017
- On February 28, The White House issued a Statement of Administration Policy indicating that the president would sign the resolution.
Department of Labor announcement of a proposed delay of the rule for Examination of Working Places in Metal and Nonmetal Mines
Description: The U.S. Department of Labor announced a delay in the effective date of the Final Rule for Examination of Working Places in Metal and Nonmetal Mines from May 23, 2017, to July 24, 2017. The final rule, if implemented, would improve miners’ safety and health by requiring mine operators to: (1) conduct working place examinations to identify hazards before work begins in an area, (2) notify affected miners of hazardous conditions that are not corrected immediately; and (3) record the locations examined, the adverse conditions found, and the date of the corrective action. The department stated that the delay will allow the Occupational Safety and Health Administration (OSHA) to further review and consider the rule, as required by a Jan. 20, 2017, White House memorandum, “Regulatory Freeze Pending Review.”
Fair Economy Impact: This announcement delays critical workplace examinations exposing more miners to unsafe work conditions. From January 2010 through mid-December 2015, there have been 122 miners killed in 110 accidents at metal and nonmetal mines.
- Announced on March 27, 2017
- Delayed until July 24, 2017
Congressional Review Act resolution to block Fair Pay and Safe Workplaces rule: H.J. Res. 37/S.J. Res. 12
Description: The resolution blocks 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 blocking this rule.
- President Trump signed into law on March 27, 2017.
- Senate passed (49–48) on March 6, 2017.
- House passed (236–187) on February 2, 2017.
- On February 1, the White House issued a Statement of Administration Policy indicating that the president would sign the resolution.
Description: The Department of Labor announced a delay in the effective date of the Occupational Exposure to Beryllium rule from March 21, 2017, to May 20, 2017. The department stated that the delay will allow the Occupational Safety and Health Administration (OSHA) to further review and consider the rule, as required by a Jan. 20, 2017, White House memorandum, “Regulatory Freeze Pending Review.”
Fair Economy Impact: It remains to be seen what the impact will be of this delay, or if the administration attempts to further delay this health and safety rule. OSHA had issued this final rule to prevent chronic beryllium disease and lung cancer in American workers by limiting their exposure to beryllium and beryllium compounds. The rule contains standards for general industry, construction, and shipyards. About 62,000 workers are exposed to beryllium in their workplaces, including approximately 11,500 construction and shipyard workers. This is an important rule to protect workers.
- Announced on March 22, 2017
- Delayed until May 20, 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.