Republicans Propose a Bad Deal for American Workers through Labor-HHS-Education Appropriation Bills
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- Milo Allen
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1 Republicans Propose a Bad Deal for American Workers through Labor-HHS-Education Appropriation Bills The Labor, Health and Human Services, and Education (LHHS) appropriations bill is a critical part of our overall budget s work to grow the middle class, strengthen communities, and create opportunities for American workers and families. Unfortunately, Republicans in both the House and Senate have proposed numerous policy riders to the fiscal year 2016 Appropriations LHHS bills that would hurt consumers, taxpayers, and workers. The inclusion of these contentious and extraneous legislative issues into the appropriations process show that once again, Republicans are putting big corporations and their profits ahead of workers safety and economic security. Some of these riders propose to eliminate long-standing policies of the Department of Labor (DOL) and the National Labor Relations Board (NLRB), while others remove all funding for implementing new initiatives that improve conditions for workers and update government policies for the 21 st century workplace. These harmful policy riders would put at risk workers health and safety, shortchange their retirement savings, and roll back crucial collective bargaining rights. The LHHS appropriations bill provides oversight and sets funding levels for federal agencies and programs for the upcoming fiscal year. It should not be a partisan vehicle to attack workers rights and protections. The following report outlines some of the bills most egregious policy riders. Weakening labor standards and undermining the Department of Labor The Republican bills propose significant legislative changes to longstanding, needed protections for American workers. They also dismantle critical occupational safety and health regulations. The appropriations process is not the means by which Congress should review and potentially rewrite decades-old labor laws, or stand in the way of essential updating and modernization efforts to keep these well-established policies relevant in the 21st-century economy. Denying insurance claims adjusters overtime pay (Sec. 108) Under the Fair Labor Standards Act (FLSA), workers are entitled to overtime pay, or time-andone-half pay, for every hour worked over 40 in a given week. However, Section 108 of the Senate Republican bill amends the FLSA so that it does not apply to some insurance claims adjusters for a period of two years following a major disaster. In effect, the rider would remove insurance claims adjusters and licensed insurance agents from overtime protection under federal, state, and local Wage and Hour laws for two years following any major disaster declared by a federal or state agency. This means that employees who may be dealing with a high volume of insurance claims in the wake of a disaster would not be eligible for time-and-a-half pay for working more than 40 hours in a week. Though the rider is limited to workers earning at least $591 a week or some other minimum proscribed by the Secretary, it 1
2 would prevent a segment of insurance claims adjusters from earning any overtime at all at a time when they are likely to be working the longest hours. Gutting the Conflict of Interest (Fiduciary Duty) Rule (House Sec. 113 and Senate Sec. 110) Sections 113 and 110 of the Republican LHHS appropriations bills would prevent DOL from issuing a rule addressing conflict of interest in retirement advice. Today s outdated policy contains large loopholes that expose middle-class families and all individuals saving for retirement to biased investment advice. At the same time, the modern retirement system has moved toward newer, self-directed products, such as IRAs and 401(k)s, which means that now, more than ever, workers are more vulnerable to deceptive practices by their advisers as they navigate the emerging marketplace. The DOL s proposed rule requires more retirement investment advisers to put their client s best interest first by expanding the types of retirement investment advice covered by fiduciary protections and while still preserving access to retirement education. This rulemaking has attracted legislative interest since it was initially proposed in Congress initially legislated on the issue at that time, and stated that the prohibition in the 2012 LHHS bill should not be construed as preventing the Secretary from publishing a new or revised NPRM relating to the definition of a fiduciary, provided that interested parties and stakeholders are afforded a sufficient opportunity to review and comment on the proposed rulemaking. After a lengthy period of in-depth consultation, DOL has now issued a proposed rule to protect investors from backdoor payments and hidden fees in retirement investment advice. The Department continues to review the more than 390,000 comments it received over the past year, and consider ways to improve the proposed rule. The Republican-proposed rider would prevent DOL from finalizing a rule of critical importance to middle-class investors in light of the changing nature of our retirement system. The existing legal framework has not been meaningfully updated since 1975, and middle class families will continue to remain vulnerable to the deceptive practices of investment advisors until this rule is finalized. Conflicted advice leads to lower investment returns. Savers receiving conflicted advice earn roughly 1 percentage point less each year (thus, conflicted advice reduces what would be a 6 percent return to a 5 percent return). One estimate of the aggregate annual cost of conflicted advice is about $17 billion each year and growing. Limiting employee rights to effective workplace safety and health inspections (House Sec. 114) Section 114 of the House bill restricts employee rights under the Occupational Safety and Health Act, which enable a representative of the employer and an authorized representative of the employee to accompany the Occupational Safety and Health (OSHA) inspector. The Department has permitted third parties to be walk-around representatives to make a positive contribution to a thorough and effective inspection. The policy uses, for example, a union rep, an industrial hygienist, or a safety engineer who is not an actual employees of the employer, to be walk-around representatives. 2
3 In 2013, OSHA clarified that policy should correspond to actual practice and noted that other worker representatives could accompany OSHA inspectors if, as the relevant OSHA regulation had long stated, the inspector found it, reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace. This rider would virtually eliminate any right of employees to designate a non-employee representative to accompany the OSHA inspector, even those in workplaces that have elected collective bargaining representatives, such as an industrial hygienist from the union s national headquarters. As OSHA inspections are unannounced, and take place within a short time of the inspector s arrival in the workplace, having an election of employees prior to the inspection would be impossible. Denying an increase in the minimum wage (House Sec. 111) Section 111 of the House bill would deny an increase in the minimum wage to $10.10 provided by Executive Order (EO) and DOL s final rule for certain workers on covered federal contracts. Raising the pay of these low-wage workers will not only help them to better make ends meet, it can also help increase morale, improve the productivity and quality of their work, lower turnover and its accompanying costs, and reduce supervisory costs. These cost savings and quality improvements will lead to improved economy and efficiency in government procurement. Moreover, as Secretary Perez noted upon the issuance of the final rule, No one who works full time in America should have to raise their family in poverty.... By raising the minimum wage for workers on Federal contracts, we re rewarding a hard day's work with fair pay. The rider would narrow the EO s intentionally broad scope and diminish the EO s effectiveness by wholly excluding from coverage individuals working for a variety of recreational establishments that operate on federal land pursuant to permits under which they provide services to the general public. Specifically, because the EO and DOL s final rule expressly apply to contracts in connection with Federal property or lands and related to offering services for the general public, the rider would exclude from coverage federal outfitter and guide permits that plainly fall within this category of covered contracts. The rider also would likely generate confusion among contractors providing services on Federal lands as to whether their activities fall within the scope of the rider, thereby engendering challenges for contracting agencies, contractors, and DOL. The current broad coverage standard is considerably clearer than one that would attempt to include an industry-specific carve-out. Finally, the rider would grant an exemption when no legitimate particular need has been articulated to justify it. DOL s final rule was published in the Federal Register on October 7, However, the Executive Order and DOL s final rule apply only to new contracts, which are those resulting from solicitations issued on or after January 1, 2015, or that are awarded outside the solicitation process on or after January 1, This phase-in of the wage increase and DOL s significant compliance and other assistance concerning the regulation will assist with implementation by contracting agencies, contractors, and other stakeholders. 3
4 Ending efforts to prevent thousands of deaths from harmful crystalline silica (Senate Sec. 115) Section 115 of the Senate Republican bill would prevent OSHA from issuing a new rule, standard, or policy to regulate workers exposure to harmful crystalline silica until numerous additional studies and reports are completed. DOL s proposed silica rule brings crystalline silica protections that haven t been updated in 40 years into the 21 st century. The rule, if finalized and implemented, is expected to prevent thousands of deaths from silicosis, lung cancer, and other respiratory diseases. The rider would delay OSHA s ability to issue a final rule until the completion of a Small Business Regulatory Enforcement Fairness Act study by OSHA, a National Academy of Sciences (NAS) independent study of the issue, and a report from OSHA to the Senate Committee on Appropriations and Committee on Health, Education, Labor, and Pensions, on the findings of the NAS independent study. The proposal was issued two years ago, and already includes extensive review of scientific evidence relating to the health risks of exposure to respirable crystalline silica. This rider would force a grossly outdated, 40 year old standard that does not adequately protect workers, to remain the only official, enforceable standard on the books to protect workers from exposure to crystalline silica. Weakening the National Labor Relations Act and the right to band together National data indicate that workers basic right to bargain with employers is one of the most important tools working Americans have in seeking to improve workplace conditions and secure a decent living. The Republican policy riders would undermine workers ability to exercise their right to join with their coworkers to improve incomes and workplace conditions. Denying workers efficient means of voting that streamline the bargaining process (House and Senate Sec. 406) Section 406 of the Republican LHHS bills would continue to prevent the NLRB from using any funds to issue any rules or regulations that permit employees to use electronic voting to choose representatives for collective bargaining. This rider which has been included in the LHHS bill since FY 2012 prevents the NLRB from modernizing the voting process to make it more efficient and private, removing the element of fear or intimidation for the employee, and increasing the chances that workers participate in the bargaining process altogether. Passing this rider would allow employers to continue to influence voting decisions and thereby permit the privacy of the voting system to remain compromised. Without this rider, the NLRB could update the current standard, which requires employees to vote in person and often in the same facilities where they work. With electronic voting, polls may be held at a centralized location, away from the worker s place of employment, preserving the privacy of their vote and removing the element of fear for the employee. Votes would be 4
5 tabulated and reported electronically as well, streamlining the process and making it more efficient overall. Delaying union elections and sabotaging the bargaining process altogether (House and Senate Sec. 407) In December 2014, the NLRB issued a final rule to make needed reforms to its election procedures to modernize and streamline the process. But Section 407 of the Republican LHHS bills would prevent the NLRB from using any funds to implement or enforce the Election Rule. The underlying rule would limit unnecessary litigation and streamline the union election process, avoiding current anti-union tactics, such as employers filing numerous appeals to the NLRB and running anti-union campaigns to delay elections for months. The rule provides a framework to consolidate some of the appeals and hold off on resolving certain issues until after an election takes place. In effect, the language in Section 407 would prevent the Election Rule from being implemented or enforced. A similar attempt to block the rule was made earlier this year, via a Congressional Review Act Resolution that passed the Republican-led Senate and House, was vetoed by the President, and failed to muster sufficient votes to sustain a Senate override. Allowing corporations that contribute to labor violations at franchises to continue to avoid liability (House and Senate Sec. 408) Section 408 of the Republican LHHS bills would prevent the NLRB from using any funds to change the interpretation or application of the standard for determining whether entities are joint employers. In the recent Browning-Ferris decision, the NLRB revised its standard for joint-employment, holding that the employer s control need not be direct in order to support joint-employer status; rather, control over employees that is exercised through an intermediary may be sufficient to support such a finding. Although the Board s decision had to do with bargaining obligations, the decision raises crucial questions as to how the joint-employer standard applies in different situations, such as to franchisors in relation to franchisees, especially if a pattern of labor violations is evident. Under the current standard, which has been in place since 1984, a corporation may have instances of unfair labor practices at multiple individual franchises, but liability is assessed at the individual level, and therefore each individual franchise would have to be sued to obtain compliance or a change in behavior. The outcome would have no impact on corporate policy. However, if liability is assessed at the corporate level, far-reaching changes may be implemented across all establishments with the corporate name. In effect, this rider would prevent the NLRB from issuing guidance as to how the Browning- Ferris decision may impact other industries, allowing employers to continue to shield their liabilities by relying on the franchiser-franchisee corporate structure. 5
6 Limiting the relevance and specificity of bargaining units (House Sec. 410 and Senate Sec. 409) The standard for determining initial bargaining units allows workers to have bargaining units that are specialized and better represent their interests. Both Republican LHHS bills in Section 410 and 409 would prevent the NLRB from using any funds to implement this standard, as specified in the Specialty Healthcare decision. The underlying policy clarifies precedent on what defines an appropriate bargaining unit when forming a union, particularly with respect to when smaller bargaining units can form within the same facility. Republicans claim that the decision would cause micro unions to form, but since taking effect in 2011, the average size of bargaining units has changed little. In effect, the rider would prevent the NLRB from implementing this revised standard which Republicans have tried, unsuccessfully since 2012, to override through a rider on the LHHS bill. 6
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