Capitol Hill Update

Workplace Issues Remain a Top Focus for Both Parties in Congress

Oct 23, 2015

As the 2016 presidential and congressional elections draw nearer, both sides of the aisle in Congress continue advancing public policy issues that distinguish their views from those of the other party on workplace matters. Below are a few of the recent public policy actions undertaken in Congress related to the workplace.

Joint Employer Legislation—The National Labor Relations Board’s (NLRB) recent decision to reject the 30-year-old legal standard for whether a business is a “joint employer” of another employer’s employees continues to receive scrutiny on Capitol Hill. As previously reported by SHRM, legislation has been introduced to reject this new standard and return to the well-established joint employer standard focusing on actual exercise of direct control over another business’s employees.

Earlier this month, the Senate Health, Education, Labor and Pensions Committee, as well as the House Education and the Workforce Committee, convened hearings to highlight implications of this change on the workplace, in particular the franchise industry, as well as other businesses that use a subcontractor or temp agency. Congressional action is expected on this legislation in the coming months, but neither the Senate nor the House currently have enough votes to overturn an expected presidential veto. Congressional leaders may also look to the appropriations process to attempt to block or delay this rule change. SHRM support’s efforts to overturn the NLRB’s decision and return to the well-established joint employer standard focusing on actual exercise of direct control over another business’s employees.

Small Business Committee Is Talking Overtime—Earlier this month, a House Small Business subcommittee convened a hearing highlighting the concern that small businesses will be disproportionately impacted by the Department of Labor’s (DOL’s) proposed Fair Labor Standards Act overtime regulations. Chairman Cresent Hardy (R-NV) criticized the DOL’s analysis of the rule’s impact on small businesses as required by the Regulatory Flexibility Act. Chairman Hardy noted that the DOL “vastly underestimates the number of affected small businesses and what the real ramifications are for those companies and their employees.” Congressional interest in the overtime rule is only expected to increase as the DOL prepares for a final rule next year.

Although SHRM would support a reasonable increase to the FLSA’s minimum salary threshold, the proposed level in the draft regulation issued by DOL is too high and would impact non-profit organizations, small business, state and local governments and employers in certain geographic areas of the country significantly. SHRM also supports the position taken in the DOL proposal to refrain from making any changes to the existing duties test elements of the regulation.

Federal Contractors and Background Checks—Earlier this month, the Senate Homeland Security and Governmental Affairs Committee voted to approve the Fair Chance Act (S. 2021), bipartisan legislation introduced by Senator Cory Booker (D-NJ) and Senator Ron Johnson (R-WI) that would prohibit federal contractors from requesting that a job applicant disclose his or her criminal history before the applicant has received a conditional offer of employment. Exceptions were included in the legislation for positions related to law enforcement or national security and those that involve interaction with minors, among others.

While the legislation has advanced past the initial hurdle, it will likely not move forward until later in this congressional term. Stay tuned for additional legislative updates in the coming months.

Other Labor Legislation Introduced—Last month, Senator Patty Murray (D-WA) and Congressman Bobby Scott (D-VA) introduced the Workplace Action for a Growing Economy (WAGE) Act, amending the National Labor Relations Act to expand the remedies for employees who have been retaliated against for participating in union organizing activities. Provisions include: tripling back pay that employers must pay to workers who are fired or retaliated against; providing workers with a private right of action to bring a lawsuit to recover monetary damages; and establishing civil penalties of up to $50,000 for employers that commit unfair labor practices.

This legislation is unlikely to move forward in the Republican-controlled Congress, but its introduction sends a strong signal indicating the top labor priorities for congressional Democrats as the 2016 election draws nearer.


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