Punching In: Congressional Review Act Threat Looms for DOL Rules

Monday morning musings for workplace watchers.

CRA Deadline|Budget Limbo

Rebecca Rainey: Rules finalized as early as next May could be at risk of being undone under the Congressional Review Act, scholars say, potentially threatening several high-profile US Labor Department regulations currently being wrapped up by the Biden administration.

Because the congressional calendar for next year hasn’t been finalized, it’s hard to pinpoint exactly when the law—which requires agencies to submit final rules to Congress and gives lawmakers a 60-day period to pass a resolution to nullify rules they oppose—will come into play. Sarah Hay and Steve Balla of the George Washington University Regulatory Studies Center estimate that rules published between May and September next year could potentially fall victim to the CRA.

“If I’m a regulator who’s concerned about that, if I want to CRA-proof my regulation, I’d certainly want to have it issued before then,” said Balla, who is a co-director of the policy center and a professor at GWU.

That could mean that DOL rules seeking to raise the overtime threshold and include union representatives in workplace safety inspections, among others that have just completed their public comment period, could be at risk if Democrats were to perform poorly in the 2024 elections.

The looming deadline’s importance has grown as lawmakers have deployed CRA measures more frequently, despite knowing they have no chance of passing.

The CRA has conventionally been viewed as an effective tool when used in between administrations to undo rules issued by the outgoing party. Because resolutions of disapproval under the law must be passed by both chambers and are subject to a presidential veto, the CRA typically only comes into play when there is a change in parties in the White House and with unified control of Congress.

But lately Republican lawmakers in particular are using the law’s disapproval process to put their colleagues on the record about potentially politically disadvantageous regulations, according to Balla and Hay, a policy analyst for the center.

“It’s a great way to have a press release. It’s a great way to talk to the folks back home about how you’re fighting, whatever the big bad agency is. That’s always going to be a value to members of Congress in one way,” Balla said. “The more interesting question to ask is ‘why don’t members do this all the time?’” he added. “Because half of Congress is opposed to pretty much every regulation.”

Lawmakers seem to be catching on to that strategy, at least when it comes to labor policy.

Earlier this month, a group of House and Senate Republicans introduced a CRA resolution aimed at rescinding a National Labor Relations Board rule that would make it easier for companies to be found jointly liable for their subcontractors’ and franchisees’ labor violations.

And President Joe Biden was forced to issue the first veto of his presidency in March when Congress passed a CRA resolution canceling a DOL rule allowing retirement plan managers to weigh environment, social, and governance issues in their investment decisions. Despite Democrats having control of the Senate, Biden has issued seven vetoes of CRA resolutions during his term, noted Hay, the most of any president.

Former Speaker of the House Kevin McCarthy (R-Calif.) signs a resolution passed by the House and Senate that aims to block a Biden administration rule encouraging retirement managers to consider ESG factors when making investment decisions, during a bill signing at the US Capitol March 9, 2023.

Photo by Drew Angerer/Getty Images

Diego Areas Munhoz: House Republicans are struggling to pass a spending bill that funds the Labor Department due to steep cuts that have moderates balking.

A vote on the Labor-HHS-Education appropriations bill was postponed last week, marking the fourth time Republican leadership has failed to pass a spending bill on the floor this year. Moderates in the party have railed against the legislation, which would cut the DOL’s budget by nearly 30%, and eliminate a series of programs including the Job Corps and the Women’s Bureau at the agency.

Rep. Brian Fitzpatrick, an influential moderate Republican from Pennsylvania, has called the bill the “most egregious” of all the 12 appropriations bills drafted by the House this year.

Democrats have gone on the offensive, attacking the cuts to workforce development programs.

“These apprenticeship programs literally pay dividends for the American economy,” Rep. Susan Wild (D-Pa.) said in a press call. “The House GOP has missed the memo.”

The Democratic Women’s Caucus pushed back on the elimination of the Women’s Bureau, a division created in 1920 to promote the welfare of women in the workplace and provide policy recommendations regarding those issues. Rep. Bobby Scott (D-Va.) criticized the GOP bill’s proposed $38 million cut to the Employee Benefits Security Administration, citing a Government Accountability Office report that shows the DOL subagency responsible for protecting Americans’ retirement savings is struggling to stay afloat after years of declining resources.

But while passage of the bill as it stands looks highly unlikely, the fate of the DOL and the NLRB’s funding—like the entire federal budget—remains unclear.

Biden on Nov. 17 signed a funding patch that will keep the government running until early 2024. The DOL and NLRB will have their budget intact through Feb.2.

Meanwhile the Senate’s Labor-HHS bill is more bipartisan, with far fewer cuts to the agencies, and has serious chances of clearing the chamber. Appropriations Committee Ranking Member Sen. Susan Collins (R-Maine.) indicated last week that the bill could be in the next funding package to hit the Senate floor after the Thanksgiving break.

Vote Highlights: Despite the continued limbo, there were some curious votes on Republican amendments for the House Labor-HHS bill on the floor last week.

Over 130 Republican members voted to completely defund the Occupational Safety and Health Administration. The measure, proposed by Rep. Mary Miller (R-Ill.), failed but was able to garner a majority of the GOP conference.

A provision to reduce NLRB funding by an extra $100 million similarly failed. But proposals to block the board’s Cemex decision and its rule to expedite union elections passed by voice votes.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.