Su Nomination in Limbo. Late last week, Senator Joe Manchin publicly voiced his opposition to Julie Su’s nomination to be secretary of labor. Senator Manchin stated:
I believe the person leading the U.S. Department of Labor should have the experience to collaboratively lead both labor and industry to forge compromises acceptable to both parties. While her credentials and qualifications are impressive, I have genuine concerns that Julie Su’s more progressive background prevents her from doing this and for that reason I cannot support her nomination to serve as Secretary of Labor.
This means that Su will need all remaining Democrats and the three Independents (and a tiebreaking vote by Vice President Kamala Harris) in the U.S. Senate to support her nomination in order to be confirmed. Even this might be a stretch, as the White House last week appeared to “out” Senator Kyrsten Sinema (I-AZ) by stating that they hope she reconsiders her position on Su, even though she has not publicly declared how she will vote on Su’s nomination. On July 19, 2023, Senator Bill Cassidy (R-LA), ranking member of the Senate Committee on Health, Education, Labor and Pensions, called on President Biden to withdraw Su’s nomination, noting that “[n]o Cabinet level nominee has waited longer for a floor vote when the Senate and White House were controlled by the same political party.” As Senator Cassidy pointed out in his letter, even with these political headwinds, due to the nature of Su’s appointment, it is possible that the administration might be trying to shoehorn Su into serving as acting secretary of labor indefinitely.
Workplace Safety Update. The Occupational Safety and Health Administration (OSHA) appears to be hitting its rulemaking stride, as it has recently advanced the following initiatives:
- Injury and illness reporting. Today, OSHA published in the Federal Register its latest changes to its injury and illness reporting rule. The final rule will require covered employers with one hundred or more employees to electronically submit to OSHA their Form 300 (work-related injuries and illnesses), Form 301 (injury and illness incident report), and Form 300A (yearly summary). OSHA will make these forms publicly available, and labor unions will undoubtedly be interested in reviewing them. The rule takes effect on January 1, 2024. John D. Surma and David B. Walston have a great write-up on the back-and-forth saga (spanning three administrations) of the regulation and what it ultimately means for employers.
- PPE proposal. On July 20, 2023, OSHA issued a proposed rule revising its personal protective equipment (PPE) standard for construction. The rule would clarify and “explicitly state that PPE must fit properly to protect workers from workplace hazards.” According to the proposal, OSHA “preliminarily concludes that the rule is not expected to impose new costs on employers as a result of a new regulatory requirement.” Comments are due by September 18, 2023. John Surma and Savannah M. Selvaggio have the details.
- OSHA targets warehousing industry. Effective July 13, 2023, OSHA launched a national emphasis program (NEP) on warehousing and distribution center operations. Pursuant to the NEP, OSHA inspectors will focus on “warehousing and distribution center operations, mail/postal processing and distribution centers, parcel delivery/courier services, and certain high injury rate retail establishments.” Inspections will scrutinize “powered industrial vehicle operations, material handling/storage, walking-working surfaces, means of egress, and fire protection,” as well as heat and ergonomic hazards. Wayne E. Pinkstone and John Surma have the details.
- Walkaround proposal advances. On July 17, 2023, OSHA transmitted to the Office of Information and Regulatory Affairs its rulemaking proposal that “will clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer.” The proposal will likely attempt to codify OSHA’s controversial 2013 interpretation letter that was subsequently rescinded by the Trump administration.
House Republicans Scrutinize DOL Rulemaking. On July 18, 2023, the House Subcommittee on Workforce Protections held a hearing entitled, “Cutting Corners at WHD: Examining the Cost to Workers, Small Businesses, and the Economy.” The hearing is another example of Republicans’ use of their congressional oversight authority to impact the administration’s rulemaking agenda. It also represents an example of Republican efforts—even though House Republicans lack the constitutional “advise and consent” authority possessed by their counterparts in the Senate—to derail the nominations of U.S. Department of Labor (DOL) nominees Su and Jessica Looman (nominated to serve as director of the Wage and Hour Division).
Revised Voluntary Self-Identification of Disability Form Deadline. July 25, 2023, is the deadline for federal contractors to incorporate the Office of Federal Contract Compliance Programs’ (OFCCP) revised Voluntary Self-Identification of Disability Form into their applicant and employee processes. In April 2023, OFCCP made revisions to the form to “update the preferred language for disabilities and to include additional examples of disabilities.” Cameron W. Ellis has the details on the changes.
Hip Hop Hooray! On July 20, 2023, the U.S. Senate passed by unanimous consent a resolution designating August 11, 2023, as “Hip Hop Celebration Day”; August 2023 as “Hip Hop Recognition Month”; and November 2023 as “Hip Hop History Month.” According to the resolution, August 11, 1973, is significant because it marks the day that Clive “DJ Kool Herc” Campbell “introduced his innovative style of disc jockeying” at a “Back to School Jam” in the recreation room of an apartment building in the Bronx, New York. Senate Majority Leader Chuck Schumer introduced the resolution and Senator Cassidy signed on as a cosponsor. In moving for passage of the resolution, Senator Schumer stated:
So hip hop is great. It is a uniquely American art form that quickly blossomed into a global movement. And we are proud—proud, proud, proud—today that this resolution honoring the 50th anniversary of hip hop will pass.