News & Commentary

June 10, 2021

Maxwell Ulin

Maxwell Ulin is a student at Harvard Law School.

The Occupational Safety & Health Administration (OSHA) has published its long-awaited emergency temporary standard (ETS) to its website this morning.  The rule mandates that covered employers implement comprehensive COVID-19 safety plans, install barriers and improved ventilation, provide personal protective equipment (PPE) to employees, enforce social distancing, and grant employees paid time off for vaccinations and quarantines, among other requirements. In a major setback for labor advocates, OSHA’s ETS will apply only in a binding manner to the healthcare industry, while guidelines remain voluntary for other businesses.  The announcement marks a notable policy reversal for the White House, as President Joe Biden ran in part last year on a pledge to implement binding safety rules for COVID-19 after OSHA leadership under President Trump refused to do so.  After requesting action from OSHA in January, the Biden administration fell behind on its internal deadlines for emergency rulemaking, a task further complicated by ongoing changes to guidance from the Center for Disease Control (CDC). Still, unions and other labor rights advocates remain concerned, particularly as many workers in industries such as food service continue to feel unsafe. 

News of OSHA’s upcoming announcement came as part of five-hour, marathon testimony yesterday before the House Committee on Health, Education, Labor and Pensions (HELP) by Secretary of Labor Marty Walsh.  During the hearing, Walsh also mentioned that the Department of Labor (DoL) also plans to review its current salary threshold for overtime pay under the Fair Labor Standards Act (FLSA), noting that the current $36,000 per year income maximum was “definitely” too low.  In addition to raising the threshold, DoL is likely to consider a potential rulemaking that would establish automatic increases in the overtime salary ceiling, Walsh said.  Republican criticized Walsh for the alleged effects of the American Rescue Plan’s $300 weekly expanded unemployment benefit on job gains in recent months, an accusation to which Walsh responded by advocating for increased child care funding that would help return parents to work.  Freshman Republican Congressman Bob Good (R-VA) additionally pressed Walsh on the former Boston Mayor’s hiring of a city police chief in January with a history of domestic abuse, asking Walsh if he thought he should resign.  In addition to the police chief scandal, Walsh continues to be dogged by a wrongful termination lawsuit dating to his time as mayor, as a federal judge in Massachusetts ruled Wednesday that claims by former Boston Health and Human Services Director Felix G. Arroyo could move forward.

On the other side of the Capitol Wednesday, the Senate HELP Committee announced plans to hold nomination hearings on three Biden Labor Department nominees: Rajesh Nayak, Biden’s nominee for DoL policy chief; Taryn Williams, nominated for head of the Office of Disability Employment Policy; and Doug Parker, nominee for OSHA administrator.  The White House, meanwhile, stated its intention yesterday to nominate Javier Ramirez, a longtime career civil servant, to serve as Director of the Federal Mediation and Conciliation Service (FMCS), a body charged under the Taft-Hartley Act of 1947 with attempting to persuade parties in labor-management disputes to resolve their differences without resorting to disruptive strikes or lockouts.

While Biden’s Labor Department nominees slowly make their way toward confirmation, former President Trump’s appointees to the National Labor Relations Board (NLRB) continue to shape policy.  Yesterday, the Board held unanimously in Professional Transportation, 370 NLRB No. 132 (2021) that ballot solicitation by either unions or management in mail-in NLRB-sponsored elections constitutes objectionable conduct and could provide grounds for overturning the result.  Writing for the Board, Chair Lauren McFerran stated that in such cases, election results may be overturned if one or both sides had solicited enough votes over the course of the campaign as to affect the final outcome. Only Member Emanuel objected to this standard, arguing instead for a bright-line rule that would invalidate any election where solicitation took place.  McFerran also suggested in the opinion that the Board may wish to explore other alternatives to in-person voting going forward, particularly in light of changes wrought by the pandemic, which forced the NLRB to conduct the vast majority of its elections by mail.  

In the second request of its kind, the Office of United States Trade Representative (USTR) has asked that Mexico investigate alleged labor rights abuses in violation the newly signed USCMA agreement.  Workers at a Tridonex auto-parts factory in the Mexican state of Tamaulipas were allegedly harassed and fired by management for organizing with an independent union, SNITIS, rather than the company-sponsored charro union aligned with their employer.  The request from USTR comes in response to a joint complaint on the matter filed by the AFL-CIO, SEIU, and Mexico’s Sindicato National Independiente de Trabajadores de Industrias y de Servicios Movimiento 20/23—the first private complaint of its kind under the new trade agreement. According to the USTR, both it and the DoL had found “sufficient and credible evidence” to initiate enforcement proceedings. Last month, the USTR filed a similar request for investigation regarding a labor rights violations at another Mexican factory, while Mexico filed its own complaint regarding the treatment of migrant workers in the U.S. meatpacking and agricultural industries.

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