The Fifth Circuit Court of Appeals ruled that the Pregnant Workers Fairness Act was lawfully enacted during the COVID-19 pandemic despite the use of proxy voting in the House of Representatives. The House Committee on Education and the Workforce passed several bills that would impact the workforce. The Occupational Safety and Health Administration (OSHA) issued new guidance increasing penalty reductions for OSHA violations. A House subcommittee held an oversight hearing on OSHA. The Labor Department issued guidance encouraging AI workforce training.

5th Circuit Rules Pregnant Workers Fairness Act Was Lawfully Enacted – The United States Court of Appeals for the Fifth Circuit ruled that the Quorum Clause of the Constitution does not require the physical presence of members of the House of Representatives for legislation to be passed. In the case of State of Texas v. Bondi, U.S. Attorney General, the Fifth Circuit stated, “In light of the plain language of the Clause, its basic purpose, and the historical practice of Congress since its inception, we conclude that the Quorum Clause does not require physical presence for a house of Congress to conduct business.”

During the COVID-19 pandemic, the United States House of Representatives adopted a rule allowing remote voting. The State of Texas sought an injunction contending that the passage of the consolidated appropriations act that included the Pregnant Workers Fairness Act (PWFA) was a violation of the Quorum Clause of the Constitution. The District Court ruled in favor of Texas finding that the Constitution did not allow the House of Representatives to count physically absent Members toward a quorum since the “Quorum Clause is not a majority-participation requirement, but a majority-presence requirement.”

In reversing the District Court, the Fifth Circuit noted that the House resolution allowing it to engage in business during the COVID-19 pandemic helped ensure majoritarian rule. After all, declared the Fifth Circuit, “over 99% of House members – an overwhelming majority – participated in the vote on the bill at issue.” Additionally, the Fifth Circuit believed that while the Constitution requires a majority for either House of Congress to transact business, it does not set forth how determining the required majority should be determined.

House Committee Approves Workforce Bills – The House Committee on Education and the Workforce has passed several bills that would impact the workforce. The bills need to be approved by the full House of Representatives.

H.R. 2262, the Flexibility for Worker Education Act, introduced by Representative Ashley Hinson (R-IA) would exclude from hours worked under the Fair Labor Standards Act (FLSA) any time spent participating voluntarily in education and training programs that occurs outside of the regular working hours of the employee and the employee does not perform any productive work for the employer during the attendance or participation. According to Representative Tim Walberg (R-MI), the bill “removes obstacles preventing businesses from offering training opportunities to workers and empowers workers to pursue employer-offered upskilling opportunities at no cost to the worker.”

H.R. 4366, the Save Local Business Act, introduced by Representative James Comer (R-KY) attempts to clarify the joint employer rule by defining a joint employer as one that shares direct, actual, and immediate control over employees with another employer. The factors that would establish a joint employment relationship included in the legislation are the hiring and firing of employees, determining compensation, supervising employees, assigning work schedules, position or tasks, and disciplining employees.

H.R. 1319, the Modern Worker Empowerment Act, introduced by Representative Kevin Kiley (R-CA) sets forth when an individual would be considered an independent contractor rather than an employee. If the person for whom the work is performed does not exercise significant control over the way the work is performed and while the work is performed, the individual has opportunities and risks the individual would be an independent contractor. Several factors are enumerated that may not be used in determining employee status including requiring compliance with legal requirements and health and safety standards, carrying insurance, and meeting agreed-upon performance standards and deadlines.

H.R. 1320, the Modern Worker Security Act introduced by Representative Kevin Kiley (R-CA) would allow portable work-related benefits to be provided to independent contractors without making them employees. Work-related benefits are defined in the bill as including such things as workers’ compensation, skills training, professional development, paid leave, health insurance, and retirement savings.

OSHA Update – The Occupational Safety and Health Administration (OSHA) issued a new policy that increases penalty reductions for small employers as well as employers without a history of serious, willful, repeat, or failure to abate OSHA violations. The new policy detailed in the Penalties and Debt Collection chapter of OSHA’s Field Operations Manual increased the penalty reductions for small businesses so that a penalty reduction of 70% previously applicable to business with up to 10 employees would apply to businesses with up to 25 employees. Guidelines are included for a 15% penalty reduction for employers who immediately take action to correct a hazard. A 20% penalty reduction is available for those employers who have never been inspected by federal OSHA or an OSHA State Plan as well as those employers who have been inspected in the previous five years and had no serious, willful, or failure-to-abate violations.

The House Subcommittee on Workforce Protections of the Committee on Education and the Workforce held a hearing on “Safe Workplaces, Stronger Partnerships: The Future of OSHA Compliance Assistance.” Subcommittee Chairman Ryan Mackenzie (R-PA) stated, “New industries, emerging technologies, and evolving hazards require OSHA’s compliance assistance programs to be more innovative, accessible, and adaptable than ever before.”

Chris Williams, executive director, Voluntary Protection Programs Participants’ Association testified in support of these programs. He noted that volunteer protection program sites maintain an average injury and illness rate 53% below industry averages and work to “raise the standard for workplace health and safety excellence.” He stated that voluntary protection programs are discretionary programs whose funding can be eliminated. He expressed support for H.R. 2844, that would make these programs a permanent part of OSHA and require that a percentage of OSHA’s annual budget be devoted to funding these programs.

Rebecca Reindel, Safety and Health Director, AFL-CIO testified that more than 5,000 workers annually die on the job from traumatic injury, an estimated 135,000 die each year from work-related chronic illness, and 3.2 million American workers report nonfatal injuries. She criticized the cuts in OSHA funding, which she claims has decreased 7% since 1991 despite an 82% growth in the number of workplaces during that time. She noted that the proposed OSHA budget for the upcoming fiscal year would further reduce OSHA funding and would “lead to more workers getting injured, ill and killed from preventable workplace hazards.” She called on the subcommittee to increase the budgets for job safety and health agencies and end reductions in job safety and health agency staff.

DOL Encourages AI Worker Training – The Department of Labor’s Employment and Training Administration issued guidance encouraging the state and local workforce development systems to use Workforce Innovation and Opportunity Act (WIOA) funding to help youth and adults develop artificial intelligence (AI) skills. Deputy Secretary of Labor Keith Sonderling stated, “We believe that AI literacy is the gateway to opportunity in an AI-driven economy, and this guidance will ensure that more Americans have access to the foundational AI skills they need to succeed.”

The WIOA established programs providing career and training services to job seekers. The programs help employers obtain the skilled workers they need and provide services through about 2,400 One-Stop Career Centers.

According to Training and Employment Guidance Letter No. 03-25, state and local workforce development boards are encouraged to use WIOA programs “to help participants develop AI skills by providing AI literacy training, looking for opportunities to integrate AI learning into relevant programs, partnering with other organizations and funding sources to provide participants with AI skills, and creating AI skills development programs.” Additional information about the federal government’s AI initiatives is available at www.ai.gov.

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 [email protected].