Employment Law Daily Spending bill advances with restrictions on DOL, NLRB regs and policies
Wednesday, July 20, 2016

Spending bill advances with restrictions on DOL, NLRB regs and policies

By Pamela Wolf, J.D. The full House Appropriations Committee on July 14 gave a thumbs up to a $161.6 billion draft Labor, Health and Human Service bill that includes several provisions that would prevent the Department of Labor and the National Labor Relations Board from using funds to enforce controversial regulations and policies. With a 31-19 vote, the committee approved the draft bill submitted by a subcommittee, with several additional amendments delineated in a full committee press release (see Spending measure would block disfavored DOL, NLRB regs and policies, July 11, 2016). Labor Department restrictions. The bill includes provisions that strike at a triad of DOL regulations and policy. One would bar enforcement of the FLSA overtime rule. The regulation raises the floor below which overtime must be paid from $455 to $913 a week, or stated annually, from $23,660 to $47,476, as projected for 2016. The final rule, which has also drawn considerable controversy, would be blocked by a joint resolution introduced on June 19. The appropriations bill would also prohibit enforcement of the controversial fiduciary rule, which was developed with the goal of eliminating certain conflicts of interest in investment advice. Opponents of the regulation see it as making it more difficult for working families to get retirement advice. A joint resolution that would have blocked the rule was vetoed last month by President Obama, who said the measure "would overturn an important Department of Labor final rule critical to protecting Americans' hard-earned savings and preserving their retirement security." Lawmakers were unable to garner sufficient votes to override the president’s veto. The spending measure in addition would continue appropriations provisions that provide flexibility in the H-2B program. NLRB regs and policies. The appropriations bill targets several NLRB regulations and policies, including one that would continue a prohibition on the use of electronic voting in union elections. The bill also includes a prohibition on use of funding for the implementation or enforcement of the representation-case procedures regulation—the so-called "quickie" election rule that continues to draw controversy over, among other things, the shortened time frame between the filing of a petition and the union election. Concerns about the rule tipping the scales in favor of unions do not appear to have borne out, however. One year later, the union win rate in elections with certified results remained about the same with the new rules in place (65 percent) compared to the same period the year before (66 percent), according to data posted by the NLRB. The appropriations bill would also place a bar on enforcement of joint-employer standards that were announced by the Board in its Browning-Ferris Industries decision. The announcement sparked a firestorm that included several congressional hearings. The question of when employers should be jointly liable for violations of workers’ rights continues to be a hot-button issue given changing business models and the rise of the "on-demand" economy. The spending measure in addition would place a prohibition on enforcement of bargaining unit standards that conflict with the standard articulated in the Board’s 2010 majority opinion in Wheeling Island Gaming Inc. and United Food and Commercial Workers International Union, Local 237. It would also bar NLRA enforcement against Indian tribes or the entities they own or operate on tribal lands.

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