| | | | |  | | By Nick Niedzwiadek and Grace Yarrow | With help from Eleanor Mueller
| | ON OSHA: A small but influential segment on the right is embracing a court fight to shackle the Occupational Safety and Health Administration and potentially invalidate its authority altogether. Proponents of this effort argue that when Congress in 1970 drafted the Occupational Safety and Health Act, which spawned OSHA, they did so in a way that granted the agency virtually unlimited power to regulate workplace hazards — violating the Constitution’s non-delegation clause by ceding power to the executive branch in the process. “The problem with the overly permissive lack of enforcement of the non-delegation doctrine is that the executive branch has done things that really on the legislature can do, writing rules that are really closer to statutes,” said the Cato Institute’s Thomas Berry, who co-authored an amicus brief urging the Supreme Court to take up a case on the issue. The Biden administration has until April 1 to file its position on the case. That case, Allstates Refractory Contractors v. Julie Su, is the one that Cato, along with several business and conservative legal groups, want the Supreme Court to agree to hear during its fall term. Non-delegation issues tripped up the federal government during the New Deal era, but it has largely fallen by the wayside for a near-century. Courts have multiple times batted back challenges to OSHA — including the 6th U.S. Circuit Court of Appeals last August in this case involving Ohio contractor Allstates that centered on OSHA’s ability to set “reasonably necessary or appropriate” safety standards. “Even more than most statutes, which are pretty vague, this is vaguer,” said Berry, who co-authored a recent post arguing for OSHA’s unconstitutionality for the libertarian-leaning organization. “It doesn’t have to be necessary. It doesn’t have to be appropriate. It can be one or the other, and appropriate in particular is such a vague word that, in essence, it’s whatever the agency thinks is good policy.” Along those lines, Circuit Judge John Nalbandian’s dissent in the recent Ohio case said he would have ruled against the agency because “even under the minimal requirements needed to find an ‘intelligible principle’ — OSHA’s permanent standards provision does not pass muster.” OSHA’s critics have seized on the 2019 dissent from Supreme Court Justice Neil Gorsuch in Gundy v. United States they believe laid down a marker for future cases to revisit non-delegation. “To leave this aspect of the constitutional structure alone undefended would serve only to accelerate the flight of power from the legislative to the executive branch,” Gorsuch wrote. While Gorsuch was in the 5-3 minority at the time, the addition of Justices Brett Kavanaugh and Amy Coney Barrett and the high court’s willingness to cast aside long-standing precedents has emboldened conservatives — with a particular eye on penning in the regulatory state, a signature focus of Gorsuch’s. But this depiction of OSHA as an unfettered monster is incongruent with on-the-ground reality, according to agency defenders. Inspectors are spread paper-thin across the American workforce, penalty caps are far too low to trouble large companies skimping on safety, and protections for workers — such as the heat-safety standards in development — can take years, if not decades, due to a litany of procedural hurdles. Still it’s an improvement on the pre-OSHA system, they argue, and that hamstringing its authority would leave vulnerable workers exposed. “Ultimately what you’re gonna have is a lot more workers getting killed from very plainly preventable hazards that had been regulated fairly strictly by OSHA, and instead it’s basically a free-for-all,” said Jordan Barab, former OSHA deputy assistant secretary during the Obama administration. GOOD MORNING. It’s Monday, March 18. Welcome back to Morning Shift, your go-to tipsheet on labor and employment-related immigration. 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.
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| | DOL CALLS PENSION BLUFF: The Labor Department officially supported a push for the Pension Benefit Guaranty Corporation (PBGC) to refund a $127 million overpayment tied to dead participants. The support from the Biden administration clears the way for Central States, the Teamsters-backed pension fund responsible for allocating a nearly $36 billion lifeline under the American Rescue Plan, to legally return the portion that was overpaid. As Central States was under fire for the misallocated money, pension officials sought advice from the Labor and Treasury departments on whether it could return the money without putting it in legal jeopardy, Nick reported. The Labor Department called for the $127 million to be refunded in a statement late last week: “While these excess payment amounts may represent only a small fraction of total SFA [special financial assistance] payments, they would not otherwise have been paid and, as such, must be refunded to the United States government. The plans do not have a valid claim to the funds, which never should have been paid and would not otherwise have been.” Top Republicans on congressional labor committees have repeatedly called for the money to be returned, sending letters to the PBGC and Central States and threatening subpoenas if officials did not comply. Sen. Bill Cassidy (R-La.), ranking member of the Senate HELP Committee who has led the Senate push to retrieve the overpaid money, applauded the DOL’s decision and called on the Treasury Department to follow suit. “Getting this $127M in improperly obtained funds back to taxpayers is a priority and we will continue to press this until it is resolved,” Cassidy posted on X. A subcommittee of the House Education and the Workforce Committee chaired by Rep. Bob Good (R-Va.) will hold a hearing on PBGC policies on Wednesday. Rep. Virginia Foxx (R-N.C.), chair of the House Education and the Workforce Committee, said it was “about time” for DOL to release the statement,though “this outcome is a step in the right direction, it remains abundantly clear that there is serious room for improvement.” Rep. Bobby Scott (D-Va.), the ranking member of the full committee, also lauded the news. “This announcement shows the Biden Administration’s continued commitment to strengthening the SFA program and safeguarding taxpayer dollars,” Scott said in a statement.
| | STEEL SALE COMPLICATED: The sale of U.S. Steel to its Japanese rival Nippon Steel is being scrutinized by the Justice Department over potential antitrust concerns, three people with knowledge of the matter told our Josh Sisco. Unions and lawmakers have come out against the $14.1 billion deal, arguing that the storied U.S. industrial titan should not be owned by a foreign company — even one based in Japan, one of America’s closest allies. President Joe Biden on Thursday echoed that concern in a highly unusual statement, saying it must “remain an American steel company that is domestically owned and operated.” The United Steelworkers union has opposed the deal, saying it puts U.S. jobs at risk. Biden and presumptive Republican presidential nominee Donald Trump are vying for an endorsement from the massive steel workers union, Josh writes. Steel workers’ support is highly sought-after for both parties, but the Biden administration is also wary of alienating Japan, a key trade partner and national security ally. Trump has already pledged to block the deal. FOXX PRESSES UNIONS: Foxx sent letters to the presidents of 12 private sector unions on Friday, asking the leaders about how they protect members from “fraud, corruption, and improper accounting.” More union news: “Cannabis Industry Mandates to Stay Union-Neutral Come Up Short,” from Bloomberg Law.
| | | FIRST IN SHIFT: The Democratic Women's Caucus will release an executive action agenda today that calls on Biden to act on issues like paid leave before his term ends, our Eleanor Mueller reports. Specifically, the caucus wants the president to issue an executive order that would require federal contractors to provide workers with 12 weeks of paid family and medical leave. They're also asking him to appoint a caregiving czar, require EEOC and OFCCP to publish data on wage gaps, direct DOL to prioritize domestic work in its wage and hour enforcement, and issue an executive order that would block federal contractors from using mandatory arbitration, among other things.Read the agenda here. MORE PAID LEAVE PRESSURE: Companies including maternity clothier Hatch, stroller company Bugaboo and postpartum health products maker Anya are shuttered today as they call on Congress to pass a federal paid leave policy, our Eleanor Mueller reports. "This action is a reminder in an election year that paid leave is an issue important and motivating to women voters and to the business community," Paid Leave for All Director Dawn Huckelbridge, whose coalition is leading the push, told Weekly Shift. "It's been stalled long enough." Policymakers enacted a temporary paid leave program during the pandemic but allowed it to lapse. President Joe Biden unveiled a budget request last week that urged 12 weeks of paid leave for all workers, in line with his State of the Union remarks and Build Back Better proposal. “All parents should be able to prioritize their baby, and their own well-being, without the added stress of financial concerns," Bugaboo Chief Commercial Officer Jeanelle Teves said in a statement. But the outlook on the Hill is grim. A bipartisan House working group unveiled a framework earlier this year that would expand paid leave tax credits and help states stand up paid leave programs, among other things — a far cry from Biden's vision. TAX NEGOTIATIONS STALLED: A major tax package — and an opportunity to squash nearly $80 billion in fraud from an employee retention tax credit — is teetering on the brink of failure in the Senate, our Brian Faler reports. Lawmakers are mostly at odds over Democrats’ bid to expand the Child Tax Credit, but the proposed crackdown on phony claims of a pandemic-era tax credit could become collateral damage. If the legislation dies, lawmakers will lose their chance to help the IRS fight a torrent of fraudulent claims for the Employee Retention Credit, a break for businesses worth up to $26,000 per worker. The agency reports receiving 20,000 requests for the credit every week. “This is a four-alarm fraud fire,” said Senate Finance Committee Chair Ron Wyden (D-Ore). “It is outrageous what is going on.” Negotiations between Wyden and the top Finance Committee Republican, Sen. Mike Crapo, ground to a halt late last week, Brian writes. WHAT DOES THE FOXX SAY?: Foxx caught up with Grace last week to talk about her legislative and oversight strategies for her last few months as chair of the House Education and the Workforce Committee. She’s still pushing to revamp and reauthorize the Workforce Innovation and Opportunity Act, which funds workforce development programs. She’s also garnered bipartisan support for a bill expanding Pell Grants, and maintains optimism that it’ll pass despite union opposition and a recently-scrapped floor vote. “Most of the institutions don't want anything to change,” Foxx told Grace. “They're fat and happy right now with the way things are. And we're not discussing right now any kinds of concessions.”
| | RIDESHARES RETALIATE: Uber and Lyft said they will no longer offer services in Minneapolis, Minnesota, after the city council voted to enact a pay raise for drivers, the Star Tribune reported. The two rideshare giants said they will stop operations in Minneapolis on May 1, when the raised minimum pay for drivers is slated to take effect. The Minneapolis city council voted 10-3 on Thursday to override Mayor Jacob Frey’s veto of an ordinance that gives drivers a raise with the intent to be at least minimum wage equivalent. Frey pleaded with council members to adjust the ordinance to a smaller pay boost that would be more acceptable to rideshare companies. Uber and Lyft are the only licensed rideshare companies in Minneapolis, though other smaller-scale companies could look to scale up operations to fill the void left after May 1.
| | | | A DIRTY JOB: Mike Rowe thought he was meeting with Robert F. Kennedy Jr. to discuss efforts to bolster the skilled trades. It turned out Rowe was being interviewed for Kennedy’s running mate, our Playbook colleagues write. Rowe, best known for hosting the Discovery Channel’s “Dirty Jobs” and as an advocate for the blue-collar trades, laid out a detailed look at how Kennedy is vetting vice presidential candidates in an interview with NBC News. Rowe said they spoke at length about workforce development and Rowe’s advocacy. Kennedy’s campaign will reveal his running mate at a March 26 event.
| | | | DON’T MISS AN IMPORTANT TALK ON ACCESS TO AFFORDABLE PRESCRIPTION DRUGS IN CA: Join POLITICO on March 19 to dive into the challenges of affordable prescription drugs accessibility across the state. While Washington continues to debate legislative action, POLITICO will explore the challenges unique to California, along with the potential pitfalls and solutions the CA Legislature must examine to address prescription drug affordability for its constituents. REGISTER HERE. | | | | | | | | | — “Young Entrepreneurs Find a Way to Indulge Their C.E.O. Dreams,” from The New York Times. — “New Lie-Detecting AI for Job Interviews Risks Violating Old Laws,” from Bloomberg Law. — “America’s Biggest Circus Is Back From the Dead,” from The Wall Street Journal. — “A Growing Union Campaign Has Put REI's Progressive Image On Trial,” from HuffPost. THAT’S YOUR SHIFT! | | | | Follow us on Twitter | | | | Follow us | | | | |
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