Beltway Buzz, April 21, 2023

Senate Committee Vets Biden’s Labor Pick. On April 20, 2023, the U.S. Senate Committee on Health, Education, Labor and Pensions held a confirmation hearing on Acting Secretary of Labor Julie Su’s nomination to be secretary of labor. In her testimony before the committee, Su, who previously served as deputy secretary of labor under former secretary of labor Marty Walsh, emphasized her role in expanding apprenticeship and workforce programs “to provide training to meet employers’ need for skilled workers and to give more workers access to quality jobs.” She also noted her close partnership with Walsh, whose record as labor secretary some Republicans and business groups regard as having been pragmatic, and she described her leadership in “finding and expanding the vast areas of common ground between employers and employees.” Various business groups nevertheless oppose Su’s nomination. Even if the committee advances Su’s nomination, her confirmation on the Senate floor is no guarantee, as Senators Joe Manchin (D-WV), Kyrsten Sinema (I-AZ), and Jon Tester (D-MT)—all of whom are up for reelection next year—remain undecided on the nomination.

House Committee Examines Independent Contractor Issues. On April 19, 2023, a subcommittee of the U.S. House Committee on Education and the Workforce held a hearing titled “Examining Biden’s War on Independent Contractors.” The hearing focused on the U.S. Department of Labor’s (DOL) pending changes to the Fair Labor Standards Act’s independent contractor test, as well as Su’s role in implementing California’s A.B. 5 while in charge of the state’s Labor and Workforce Development Agency. Worker witnesses expressed concerns that state ABC tests threaten their livelihood as independent contractors and warned against the DOL’s adoption of a similar analysis.

Foxx Invites Su to Testify. In conjunction with both Su’s nomination hearing and the independent contractor hearing, Virginia Foxx (R-NC), chair of the U.S. House of Representatives Committee on Education and the Workforce, sent Su a letter inviting her to testify before the committee on May 17, 2023. In the letter, Foxx told Su that during her time in leadership at the DOL, the agency “has pursued a destructive agenda that stifled economic growth with more regulations and red tape, produced fewer results for workers and employers, and ballooned costs at the expense of the American taxpayer.”

FTC Noncompete Update. Comments on the Federal Trade Commission’s (FTC) proposal to ban noncompete agreements were due on April 19, 2023. Among the groups filing comments was the U.S. Chamber of Commerce, which initially criticized the proposal as “blatantly unlawful.” In its comments, the Chamber urges the FTC to withdraw the proposal because the Federal Trade Commission Act “does not empower the Commission to issue sweeping substantive regulations that bind private parties.” The Chamber also argues that the proposal is arbitrary and capricious because it “elevates speculative competitive harms over well-recognized procompetitive benefits.” With Republican FTC Commissioner Christine Wilson having resigned her position effective March 31, 2023, the comments will be reviewed by the remaining three commissioners—all Democrats who voted to issue the proposal in the first place.

Senate Republicans Seek Structural Change at NLRB. This week, a group of Republican senators introduced the “National Labor Relations Board Reform Act.” The bill responds to Republican concerns—expressed recently by members in the U.S. Senate and the U.S. House of Representatives—about alleged improprieties in the operation of union representation elections, as well as accusations that the National Labor Relations Board (NLRB) unfairly targets specific employers. The bill would:

• add a sixth member to the Board and require an even three-to-three split between Democratic and Republican members;
• require decisions of the Board to be rendered by a majority of the members;
• adjust member terms to require that one Democrat and one Republican seat expires every two years;
• allow parties to seek review of complaints in federal district court;
• allow parties to request disclosure of underlying internal memoranda relevant to the complaint; and
• require the Board to issue a final order within one year of the underlying decision by an administrative law judge or regional director.

Obviously, the bill won’t see much progress in the Democratic-controlled Senate.

Republicans Introduce Employee Rights Act. It was a busy week for Republicans on the labor legislation front, as they also introduced the Employee Rights Act (ERA) in both the Senate and House. The bill could potentially provide fodder for hearings in the House, and may even advance there, but will not be addressed by the Democratic-controlled Senate. The bill would:

• require unions to be certified through secret ballot elections;
• provide employees with control over personal information provided to unions during organizing drives;
• prohibit unions from using employees’ dues payments for activities unrelated to collective bargaining and contract administration unless so authorized in writing; and
• provide that an entity may be a joint employer only when it “directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over the essential terms and conditions of employment of the employees of the other employer.”

Like the National Labor Relations Board Reform Act, the ERA will have difficulty finding traction in the Senate.

The First V.P. On this day, April 21, in 1789, John Adams assumed his duties as the first vice president of the United States. Pursuant to the rules of the recently ratified U.S. Constitution, as runner-up to George Washington in the presidential election, Adams became vice president. Suffice it to say, Adams wasn’t thrilled with the idea of being vice president, writing to his wife, Abigail, “My country has in its wisdom contrived for me the most insignificant office that ever the invention of man contrived or his imagination conceived.” The Buzz is confident that many vice presidents who followed Adams shared this sentiment. That said, as president of the Senate, Adams cast important tiebreaking votes, including one in 1794 that defeated a proposed trade embargo on Great Britain, helping avert a brewing conflict between the two nations. During his eight years as vice president, Adams cast twenty-nine tiebreaking votes—second all-time behind John C. Calhoun, who cast thirty-one such votes while serving under presidents John Quincy Adams and Andrew Jackson. In just over two years in office, Vice President Kamala Harris has already tied Adams by casting twenty-nine tiebreaking votes.