As tens of millions of Americans await congressional action on coronavirus relief, talks among lawmakers have hit another snag.  Sticking points remain over the extent of federal aid for state and local governments and the nature of lawmakers’ proposed business liability shield.  Conflict between the White House and Senate Republicans over whether to prioritize stimulus checks or an extension of emergency unemployment benefits has also mucked up negotiations. Earlier this week, a bipartisan group of lawmakers announced the outlines of a $908-billion compromise proposal that would reinstate expanded unemployment benefits at $300 per week and provide limited liability protection for businesses with a six-month moratorium on lawsuits.  In addition to the millions receiving enhanced forms of regular unemployment insurance, around 7.3 million artists, freelancers, and independent contractors are slated to lose benefits under the Pandemic Unemployment Assistance (PUA) program by December 26, absent a deal.  Many of these workers—unable to qualify for additional unemployment for lack of employee status—have been organizing under the new advocacy group ExtendPUA to pressure lawmakers to preserve the program.

As Harold Meyerson notes in The American Prospect, even with a divided Congress, President-elect Joe Biden stands in a position to enact sweeping changes to benefit worker wages.  Among these, a newly-minted Biden administration could issue binding workplace safety standards, raise wage requirements for federal contractors, and crack down on employee misclassification and wage theft by issuing an interpretive rule that would expand the number of workers covered under the Federal Labor Standards Act (FLSA).  Should Democrats win two runoff Senate elections in Georgia next month, moreover, Democrats could use the Congressional Review Act (CRA) to reverse a number of last-minute rulemakings by the Trump administration, including one set to reduce the federal minimum wage for tipped workers’ non-tipped work hours to just $2.13.

Seeking to act quickly on his ambitious labor agenda, President-elect Biden has already been recruiting a series of labor policy experts to serve in “acting” roles at the Department of Labor to begin crafting new policies while more permanent staff await confirmation.  Among the names rumored for acting posts are Nikki McKinney, current chief staffer for Sen. Patti Murray on the Senate Health, Education, Labor, and Pensions (HELP) Committee, and the Blog’s own Sharon Block.  Names have also been floated for some of the following positions at the Department:

  • Wage & Hour Division: Sonia Ramirez, chief administrator of Oregon’s Wage & Hour Division and a former building trades lobbyist.
  • Occupational Health & Safety Administration: former Steelworkers safety official Jim Frederick or Cal OSHA chief administrator Doug Parker.
  • Solicitor of Labor: Obama-era Solicitor Patricia Smith or Seema Nanda.

Meanwhile, outlets are reporting that Patrick Gaspard, head of the Open Societies Foundation and former political director for SEIU, is now the leading candidate for Labor Secretary.  Speculation rose last week when Gaspard, who served as political director in the Obama White House, announced that he would be stepping down from the Foundation at the end of this year to begin a new phase of his career. In addition to Gaspard, California Labor Secretary Julie Su and Boston Mayor Marty Walsh remain under consideration.

Meanwhile, as outgoing Labor Department leaders refuse to impose new binding workplace safety standards, many states have acted to fill the vacuum with their own.  Over the past six months, 14 states have issued comprehensive regulations for businesses to protect workers, and other states like Maryland are considering similar measures for essential workers.  The most detailed restrictions comes from Virginia, the first state to impose its own binding safety standard, and California, whose new 21-page emergency rule covers everything from social distancing to ventilation and employee notification of exposure.  Experts have cited both states as potential models for the incoming administration it looks to issue binding workplace safety standards at the national level through OSHA.  

Not all states are on board, however. In North Carolina, outgoing Republican Labor Commissioner Cherie Berry has flatly refused to issue binding workplace safety rules for COVID-19.  In a public statement issued on the decision this week, Berry claimed that COVID-19 “has not been proven likely to cause death or serious harm from the perspective of an occupational hazard.” Over 280 workplace outbreaks have been reported in North Carolina this year, with over 6,636 work-related cases and 30 deaths.

On Monday, the Supreme Court chose not to hear a case on whether the Eighth Circuit’s legal standard for Title VII hostile work environment claims is too restrictive.  In the case, Paskert v. Kemna-ASA Auto Plaza, the Eighth Circuit held that while the plaintiff may have experienced frequent sexist or suggestive jokes from her boss, the behavior was not severe or pervasive enough to constitute a hostile work environment under Supreme Court precedent.  Other circuits, however, apply a looser standard, asking whether a reasonable person would consider the sexist behavior to have altered workplace conditions.  The High Court’s decision comes just a week after the justices moved to take up two cases regarding the right of employers to deny employees scheduling accommodations for their religious practices.  Under the Court’s current standard, employers need not accommodate employees’ religious practices if the burden on business is more than trivial.  Plaintiffs in the case now ask the Court to raise its standard by requiring that businesses demonstrate a “significant difficulty or expense” in accommodating an employee, mirroring the current standard under the Americans with Disabilities Act (ADA).