| | | | | |  | | By Nick Niedzwiadek | | | | | SUING SU: The fate of the Biden administration’s labor agenda will almost certainly be decided in court, it is just a matter of how. Congressional Republicans and business groups like the Flex Association and Job Creators Network have grown increasingly vocal about their opposition to acting Labor Secretary Julie Su remaining in the position after it has become evident she stands little chance of being confirmed to officially succeed Marty Walsh, who left in March. They have raised a number of constitutional concerns about Su’s continued service and whether the White House and Department of Labor are attempting an end run around the Senate’s “advice and consent” function. For its part DOL has held firm that Su is on firm ground and elevated her public presence in recent weeks. Su sits in the center of a messy nexus of the Federal Vacancies Reform Act of 1998, an even older statute structuring DOL’s chain of command, the need for presidents to plug gaps in the executive branch with temporary leadership and the Schrödinger’s cat of a moribund nomination that is still (theoretically) a pending matter before the Senate. Supreme Court Justice Clarence Thomas expressed “grave constitutional concerns” about appointing top officials outside of the Senate confirmation process in a 2017 labor issues case. The end goal of any such challenge would be to invalidate actions taken by DOL regarding gig workers, independent contractors, or any number of other closely watched issues. Nevertheless, it's unclear how it would fare before a judge. “The argument would be that the regulation hasn't been legally issued because it was signed by somebody who did not have the authority to serve … because she was there for too long or because her service violated the Constitution,” Nina Mendelson, a University of Michigan law professor, told POLITICO. But, she added, “in my view they’re fairly weak.” Some employer groups who are also readying potential lawsuits are less keen on pursuing the Su angle and are instead planning more typical legal arguments — such as DOL exceeding its statutory authority or if a rule is written impermissibly vague. However, it only takes one judge to throw a major wrench in the administration’s gears and throw DOL into uncertainty. But that remains theoretical, and in the interim Republicans are exploring other avenues to make their displeasure known. House Education and the Workforce Chair Virginia Foxx (R-N.C.) and Rep. Kevin Kiley (R-Calif.) introduced a bill Thursday that specifically targets the law the Biden administration is citing to permit Su to serve indefinitely. GOOD MORNING. It’s Monday, July 31. Welcome back to Morning Shift, your go-to tipsheet on labor and employment-related immigration. We hope you’re having a hot PTO summer. It’s been 139 days since the Senate received Julie Su’s nomination. Send feedback, tips, and exclusives to NNiedzwiadek@politico.com and OOlander@politico.com. Follow us on Twitter at @nickniedz and @oliviaolanderr.
| | | | A message from UPS: Want the latest on UPS-Teamsters negotiations? Learn more about the tentative agreement. | | | | | DOL ALJs OK: A federal judge on Thursday dismissed a legal challenge brought against the Labor Department’s use of administrative courts to adjudicate civil penalties assessed by the agency. In 2015, DOL ordered a New Jersey farm to pay a little more than $500,000 in back pay and penalties for multiple violations of the H-2A visa program for seasonal agricultural workers, and those findings were upheld by an administrative law judge. The Institute for Justice challenged DOL’s in-house process, arguing it violates the constitutional right to a jury trial, as POLITICO highlighted earlier this month. But District Judge Joseph Rodriguez ruled that the setup is backed up by both congressional intent and Supreme Court precedent. “Based on the clear language of the statute, Congress authorized the DOL to adjudicate civil monetary penalties or back pay in administrative proceedings,” wrote Rodriguez, an appointee of Ronald Reagan. Following the ruling, IJ senior attorney Rob Johnson said the decision underscores their arguments against the deference granted to agency judges and that they intend to appeal. “Sun Valley was fined more than half a million dollars in an agency court, where agency employees served as prosecutor, judge, and jury,” Johnson said in a statement. “Now, when Sun Valley finally had a chance to make its case before a real judge, the judge held he had no choice but to give a rubber stamp to that biased administrative proceeding.” More immigration news: “As Biden boosts legal immigration pathways, an implementing agency is pushed to the brink,” from Government Executive.
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| | SENATE EYES RENT AID FOR NLRB: The labor appropriations bill passed out of committee last week holds flat funding for the National Labor Relations Board — but also floats a $10 million lifeline to help the agency meet its office needs. The lease for the NLRB’s Navy Yard headquarters expires in June 2025, and the General Services Administration — functionally the federal government’s office manager — recently posted information for prospective bidders on the matter. Overall the NLRB is aiming to slash its footprint by about 40 percent, either by relocating to a smaller space or paring back its existing offices — as your host reported in March. (The government’s preference is to renew its lease unless there’s an “economically advantageous” alternative that meets its specs.) The Senate language would authorize $10 million “solely for costs necessary to achieve rent reductions through the expiration and replacement of leases for NLRB’s headquarters and several regional offices.” The offer is a far cry from the $27.5 million the Biden administration had requested earlier this year to address the situation, but nevertheless it will face stiff odds to survive negotiations with a House GOP that has proposed chopping the NLRB’s budget by about a third. The NLRB declined a request to comment Friday.
| | RETIREMENT ENROLLMENT, REVISED: Sens. Tim Kaine (D-Va.) and Bill Cassidy (R-La.) recently rolled out legislation designed to get more people who have opted out of their employers’ retirement program to periodically reconsider their decision. The bill is aimed at the share of private-sector workers who do not participate in available employer-sponsored retirement plans, as well as those who are enrolled but aren’t maxing out their employers’ matching contribution. It would tweak portions of ERISA and tax law to give retirement plan sponsors the option to automatically enroll non-participants at least once every three years — provided they do not choose to opt out again. Kaine first proposed the idea last year, but the version introduced last week includes revised language to make it less of a mandate on employers and make it more appealing to Republicans like Cassidy. “Auto-reenrollment puts workers in the better position to prepare for retirement while staying in control of their financial decisions,” Cassidy, the top HELP Republican, said in a statement. More hill news: “28 senators call for joint-venture battery plants to be included in national UAW contracts,” from the Detroit News.
| | | | A message from UPS:   | | | | | HOUSEKEEPERS VS SWIFTIES: The union representing workers at dozens of hotels in the Los Angeles area called on Taylor Swift to postpone her upcoming tour dates in the city as a sign of solidarity amid an ongoing strike. “Protesting workers held printed signs referencing the tour and Swift’s music, urging, 'Taylor, make this your solidarity era,’” the Los Angeles Times reports. UNITE HERE Local 11 noted the massive economic boon that the tour has brought in — so much so that it’s drawn the notice of the Federal Reserve — arguing that Swift has leverage to boost the union’s efforts to win higher pay for its hotel workers. Last week’s move generated considerable media attention for the strike, though the artist has given no indication that she would take up the request. More union news: “Why We Know So Little About The U.S. ‘Union Busting’ Industry,” from HuffPost.
| | | PUTTING THE KEY IN KEYSTONE: Former president Donald Trump staged a rally in Erie County, Pennsylvania over the weekend in a bid to pry away some of the working class voters that helped Joe Biden carry the state in the 2020 election, our Myah Ward reports. Trump made direct appeals to union workers, hoping to pry a wedge between the rank-and-file and their leadership — which have largely aligned behind Biden’s reelection effort. “Don’t forget the Democrats start off with a big advantage, they think they have the unions,” Trump said. “I happen to think the unions, the workers … we have a lot of the people in the unions with us. I think we have largely a majority. You’ve got to win that whole East Coast.” In particular the former president has tried to court the United Auto Workers — which has loudly withheld its endorsement from Biden to date — by trying to link their concerns about EV production to his overall criticisms of the Biden administration’s green energy policies. More state news: “The Economic Cost of Houston’s Heat: ‘I Don’t Want to Be Here Anymore,’” from The Wall Street Journal.
| | | | HITTING YOUR INBOX AUGUST 14—CALIFORNIA CLIMATE: Climate change isn’t just about the weather. It's also about how we do business and create new policies, especially in California. So we have something cool for you: A brand-new California Climate newsletter. It's not just climate or science chat, it's your daily cheat sheet to understanding how the legislative landscape around climate change is shaking up industries across the Golden State. Cut through the jargon and get the latest developments in California as lawmakers and industry leaders adapt to the changing climate. Subscribe now to California Climate to keep up with the changes. | | | | | |  | what we're reading | | — “TSA employees are finally earning similar wages to most other federal workers,” from Government Executive. — “Fox set to postpone Emmy Awards until January amid actors' and writers' strikes,” from the Los Angeles Times. — “The economy's long, hot, and uncertain summer," from CBS News. THAT’S ALL FOR SHIFT!
| | | | A message from UPS: UPS and the Teamsters recently reached a tentative agreement. Throughout bargaining, UPS focused on negotiating a new labor contract that provides wins for our employees, the union, UPS and our customers. Today, union employees at UPS receive industry-leading wages, low-to-no-cost health care, pension benefits, tuition assistance and more. The new agreement increases our already industry-leading compensation package. Learn more. | | | | | | | Follow us on Twitter | | | | Follow us | | | | |
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