April showers may bring May regulations

Delivered every Monday by 10 a.m., Weekly Shift examines the latest news in employment, labor and immigration politics and policy.

Apr 01, 2024 View in browser   By Nick Niedzwiadek QUICK FIX Q2 TO-DO: The Biden administration is entering into a crucial stretch to finalize a host of regulations this spring or risk the possibility that they would be overturned via the Congressional Review Act if Washington flips to Republican control in this year’s elections. The CRA sets up a fast-track process for lawmakers to block unpopular executive branch policies that sidesteps the Senate filibuster and, when successful, bars future administrations from enacting substantively similar regulations. It was famously used to kill the Clinton administration’s workplace ergonomics standard after George W. Bush took office, but was a relative afterthought until Republicans resurrected it to great effect in 2017. (Democrats in 2021 used it to a much lesser degree to roll back some late Trump-era policies.) Experts on the CRA’s procedural nuances have pegged late May as the timeframe when rules finalized afterward could be in trouble come 2025. “Around May 22, somewhere in that vicinity, is when rules will be vulnerable to disapproval,” said Steven Balla, co-director of George Washington University’s Regulatory Studies Center. “So anything that’s still really in the pipeline as we enter into April is going to be finished after that, in all likelihood.” The Labor Department has already kicked into gear. In January, it rolled out its revamped criteria for distinguishing independent contractors from full-fledged employees, which is currently subject to a CRA push from the GOP. And last week, it finalized a rule that would ensure that union officials and other outside representatives can accompany federal safety inspectors on worksite visits — over the consternation of employer groups, who have opposed the idea across multiple Democratic presidencies — and, along with two other agencies, clamped down on short-term health plans. The White House’s Office of Information and Regulatory Affairs on Wednesday wrapped up its review of a safety standard for hazardous silica dust exposure, which poses respiratory risks to miners, construction workers and kitchen renovators, putting that rule on track to come out in the next few weeks. OIRA also has several DOL rules in the hopper, including the closely-watched expansion of overtime pay guarantees and fiduciary obligations on certain retirement investment advice. But DOL is far from the only agency vying for OIRA’s attention, and even though administrations are fully aware of the risk of letting regulations slip into the CRA’s lookback window, some inevitably get tripped up by the rulemaking process. GOOD MORNING. It’s Monday, April 1. Welcome back to Morning Shift, your go-to tipsheet on labor and employment-related immigration. This UNC grad recants all past slander against N.C. State. Send feedback, tips and exclusives to nniedzwiadek@politico.com and gyarrow@politico.com. Follow us on X, formerly known as Twitter, at @NickNiedz and @YarrowGrace. WELCOME ABOARD: We’re excited to announce that Lawrence Ukenye is joining Nick and Grace on POLITICO’s labor team. Lawrence most recently worked as a POLITICO fellow and contributed to Morning Score and West Wing Playbook. He is a graduate of Temple University and Philadelphia holds a special place in his heart, despite growing up in the great state of Maryland. Hit him up at lukenye@politico.com or @Lawrence_Ukenye.   Access New York bill updates and Congressional activity in areas that matter to you, and use our exclusive insights to see what’s on the Albany agenda. Learn more.     Want to receive this newsletter every weekday? Subscribe to POLITICO Pro. You’ll also receive daily policy news and other intelligence you need to act on the day’s biggest stories. In the Workplace PHOENIX PASSES HEAT ORDINANCE: The Phoenix City Council last week unanimously passed a heat safety measure for outdoor workers that will take effect at the end of April. The ordinance applies to businesses that contract, lease or license with city — and their subcontractors — though unlike other municipalities that have tackled the issue, it does not extend to private employers that are not tied to the government. It requires businesses to develop and post safety plans that include things like how workers can access shade or take breaks, the availability of water and training related to heat stress. DOL’s Occupational Safety and Health Administration is working to develop a nationwide heat safety standard, though it remains far off and local governments have been increasingly trying to fill the gap to protect workers. However these efforts have faced pushback from business groups, who argue they’re often duplicative or poorly designed to accommodate various workplace setups, and Republicans in places like Texas and Florida have moved to curtail municipalities' ability to enact requirements in their jurisdictions. More workplace news: “How Much Would You Pay to Make Sure You Never Sawed Off a Finger?” from The New York Times. Around the Agencies SU SCHEDULE SNAFU: The Department of Labor is months behind on publicly posting acting Labor Secretary Julie Su’s monthly calendars, with the last one posted in August. The schedules are a useful tool for government watchdogs, interest groups, lawmakers and reporters seeking insight on high-level agency happenings that go beyond other advisories like the ones marking Su’s public appearances across the country. The backlog covers a key stretch of Su’s tenure that includes this past fall’s autoworkers strike and an uptick in rulemaking activity. DOL said that the calendars are currently undergoing reviews to redact certain information — typically related to personal privacy or the secretary’s security — as allowed under the Freedom of Information Act and that it intends to release them soon. Unions STARBUCKS STRIKES OUT AT D.C. CIRCUIT: A split D.C. Circuit panel on Thursday upheld a National Labor Relations Board decision that the company broke labor law by discouraging baristas from handing out pro-union insignia on their breaks. Starbucks argued that the manager’s statements at the heart of the case were strictly limited to distributing buttons to customers while at work, though the NLRB determined that they could have a broader chilling effect on worker organizing. “[T]he board's conclusion that [the manager's] statement was not limited to interactions with customers is supported by substantial evidence," the panel wrote in an 2-1 decision. Judge Gregory Katsas dissented, arguing that the NLRB’s position is “unsupported by substantial evidence.” A Starbucks spokesperson said in a statement the company was “disappointed” by the ruling and that “our focus continues to be on supporting our managers to ensure respect of our partners’ rights to organize, freely associate and engage in other lawful activities.” More union news: “Liz Shuler Wants AI to Reinvigorate the Labor Movement,” from POLITICO Magazine. On the Hill PITY THE STAFFERS: Partisan acrimony and legislative dysfunction has many senior congressional staffers on the brink of quitting, The Washington Post reports. “What’s driving this new bout of staff departures is the overall environment on Capitol Hill. That includes pandemic fallout, ranging from partisan battles over mask mandates to the long closure of the buildings to the public. It also accounts for the ongoing toxicity since the January 2021 attack on the Capitol. These factors have added to an institution that was already pretty partisan.” Pro analysis: “H.J. Res. 116 (118): Independent contractor CRA awaits House floor,” from our Jordan Williams. IN THE STATES ADVENTURES IN AI: An AI chatbot rolled out by New York City Mayor Eric Adams designed to assist small businesses regularly provides information that is wrong or illegal, The Markup reports. The faulty info spit out by the tool included advising businesses that they can take a cut of workers’ tips (nope) and that employers need not provide advance notice for scheduling changes (as required for certain industries like food service or retail). A spokesperson for the city told the outlet that the technology is part of a pilot program and “has already provided thousands of people with timely, accurate answers” to user questions. More state news: “Disabled workers can be paid less than the minimum wage. Some states want to end that,” from Stateline.   SUBSCRIBE TO GLOBAL PLAYBOOK: Don’t miss out on POLITICO’s Global Playbook, the newsletter taking you inside pivotal discussions at the most influential gatherings in the world, including WEF in Davos, Milken Global in Beverly Hills, to UNGA in NYC and many more. Suzanne Lynch delivers the world's elite and influential moments directly to you. Stay in the global loop. SUBSCRIBE NOW.     Immigration H-1B FIASCO: A growing number of American workers are filing with the Equal Employment Opportunity Commission alleging that an Indian firm is firing them and filling their jobs with foreign visa holders in violation of federal law, The Wall Street Journal reports. They accuse the company, Tata Consultancy Services, of discriminating against them because of their age and race. “In their complaints, the former employees cite comments that TCS’s global human resources head Milind Lakkad made in an interview with Indian media last year. He said TCS is trying to reduce the number of Americans it employs in the U.S. and would like to provide more opportunities to Indians there, according to the report.” The company denies wrongdoing and called the claims misleading, according to WSJ. More immigration news: “Farmworker advocates take issue with U.S. House ag committee recommendations on H-2A program,” from Investigate Midwest. WHAT WE'RE READING — “Amazon Spent $3.1 Million On Anti-Union Consultants In 2023,” from HuffPost. — “Here’s how crews will remove up to 4,000 tons of debris to help find victims of the Baltimore bridge collapse,” from CNN. — “The State That’s Trying to Rein in DEI Without Becoming Florida,” from The Atlantic. — “Baltimore braces for economic hit amid fears port shuttered for months,” from The Washington Post. THAT’S YOUR SHIFT!   Follow us on Twitter Nick Niedzwiadek @nickniedz   Follow us

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