Congress Has Until January 30 to Fund the Federal Government

Congress has until the end of this month to fund the federal government in order to avert another partial government shutdown. The Department of Labor (DOL) has issued wage-hour opinion letters concerning the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). A Senate committee held a hearing on the future of retirement. The Senate confirmed members of the National Labor Relations Board (NLRB) that results in restoring a quorum on the Board.

Congress Faces Funding Deadline – The Congress has returned from the holidays and has until January 30 either to pass the remaining appropriations bills for the fiscal year that began on October 1, 2025, or pass another continuing resolution. Failure to do so will result in another partial government shutdown.

DOL Issues Wage-Hour Opinion Letters – The Wage and Hour Division (WHD) of the Department of Labor (DOL) has issued opinion letters interpreting the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). The opinion letters are fact specific and represent the position of DOL on the issues raised by those seeking the opinions. According to WHD Administrator Andrew Rogers, “Our goal is to empower employers and workers with the tools and knowledge they need to prevent violations before they happen.”

The FLSA opinion letter, FLSA 2026-1 concerned whether a licensed clinical social worker (LCSW) who was considered an exempt salaried professional employee could be reclassified as non-exempt and paid on an hourly basis. According to WHD, the work performed required advanced knowledge and academic credentials to meet the exempt learned professional criteria. However, the WHD stated that “employers have the discretion to classify such employees as non-exempt as long as they pay at least the federal minimum wage for all hours worked and the overtime premium for work in excess of 40 hours in a workweek.” The WHD noted that the misclassification of a non-exempt employee as exempt is all that the FLSA prohibits.

The FMLA opinion letter, FMLA 2026-2 involved whether travel time to and from medical appointments can qualify for FMLA leave. The WHD found that “when an eligible employee travels to or from a health care provider for a medical appointment regarding the employee’s serious health condition, he or she may take FMLA leave not only for the actual appointment, but also the time traveling to or from the appointment.” In addition, according to the WHD, the FMLA or its regulations do not require health care providers to provide information about the travel time of an employee on a medical certification.

Senate Committee Holds Hearing on Strengthening Retirement – The Senate Committee on Health, Education, Labor, and Pensions (HELP) on how to strengthen the retirement system to benefit American workers and their families. Senator Bill Cassidy (R-LA) stated that the HELP Committee would be focusing on encouraging young workers to save for their future by passing legislation enabling employers to allow 18 year olds to participate in retirement plans. He also recommended that Congress assist workers in accessing lifetime income products that can help in providing secure retirement income.

Chad Williams, financial advisor at Edward Jones expressed the support of his company for the Auto Reenroll Act (S. 1831) that would allow employers to reenroll their workers automatically after three years if they had previously opted out of the employers defined contribution retirement plan. He stated that a 2023 survey by the Plan Sponsor Council of America found that automatic enrollment can increase participation rates by at least 15%. He also testified that Edward Jones endorses the Helping Young Americans Save for Retirement Act (S. 1707). Both of these bill were introduced by Senator Cassidy and Senator Tim Kaine (D-VA). He concluded that these bills would “strengthen the retirement savings system and help more Americans enjoy the dignified and secure retirement they have worked so hard to achieve.”

James Coopland, Senior Fellow and Director, Legal Policy, Manhattan Institute for Policy Research testified that the United States faces twin retirement challenges since the Social Security system is heading towards paying reduced benefits and a significant portion of American workers have insufficient private savings to compensate for any cuts to their Social Security benefits. He noted that Social Security has for more than a decade paid out more in benefits than it collects in payroll taxes and its trust fund balances will be exhausted within the next decade resulting in an automatic 23% benefit cut. Further, only 54% of American households have defined contribution retirement or other retirement benefits.

Richard Fiesta, executive director, Alliance for America noted that in the years 2024 – 2027, there will be 11,400 Americans who will turn 65 each day, more than at any time in the history of the country. He believes that secure retirement for all is at risk since today, Social Security benefits are not enough to keep seniors out of poverty. Additionally, the shift to defined contribution plans from defined benefit plans that guarantee workers with lifelong income has placed all investment risk on workers and has been an inadequate replacement for traditional pensions. He recommends strengthening Social Security and increasing the wages and retirement benefits of workers.

NLRB Quorum Restored – The Senate has confirmed James Murphy and Scott Mayer who were nominated by President Trump to the National Labor Relations Board (NLRB). The 5 member board now has 3 members, which allows it to issue decisions and propose rules. 

James Murphy has worked for the NLRB since 1974, serving most recently as the chief counsel to former NLRB chairman Marvin Kaplan. Prior to being nominated, Scott Mayer was the chief counsel at Boeing Co. In addition, the Senate confirmed Crystal Carey as the NLRB general counsel. She worked at the NLRB leaving to join the law firm of Morgan Lewis where she was promoted to partner several months ago.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.