Update: On Saturday, December 13, 2014, the Senate approved the funding legislation in a bipartisan 56-40 vote.
In an eleventh-hour attempt to avoid a government shutdown, the House of Representatives narrowly approved in a 219-206 vote a measure that would fund the federal government through September 20, 2015, with the exception of funding for immigration enforcement, which receives shorter-term “continuing resolution” funding. The Senate is expected to do the same. Part continuing resolution and part omnibus appropriations bill, the final “cromnibus” legislation includes a number of provisions affecting the workplace.
Federal contractors will be relieved to know that the so-called “Ellison Amendment” was omitted from the final spending bill. Over the past year, Rep. Keith Ellison (D-MN) has successfully introduced amendments to various federal agency funding bills that would effectively debar contractors that have committed Fair Labor Standards Act (FLSA) violations within the past five years. Such violations could include a finding of fault and liability in any civil, criminal, or administrative proceeding, including entering into wage and hour conciliation agreements or consent decrees that include a “finding of fault.” While this “blacklisting” amendment appears to no longer be a threat in the funding bill, contractors should be reminded that the new “Fair Pay And Safe Workplaces” Executive Order issued in July of this year would achieve a similar end. Among other things, the Order changes the procurement process for contracts worth more than $500,000, and requires federal contractors to disclose during the bid process any labor law violations committed within the past three years. A rule implementing this Executive Order is expected to be issued next month.
On April 8, 2014, President Obama issued a Presidential Memorandum – Advancing Pay Equality Through Compensation Data Collection – directing the DOL to issue regulations within 120 days that will require federal contractors and subcontractors to submit to the DOL summary data on the compensation paid their employees, including data by sex and race. The OFCCP issued a proposed data collection rule on August 8, 2014. The cromnibus package directs the OFCCP, which will receive $106 million in funding, “to seek input from stakeholders on issues related to scope, content and format of the Nondiscrimination in Compensation: Compensation Data Collection Tool and to carefully consider input and public comments on any proposed rule.”
Multi-Employer Pension Reform
An extensive amendment to the funding package will make significant changes to multiemployer pension plans to seek to avoid the so-called “pension cliff” for such plans. Reps. John Kline (R-MN) and George Miller (D-CA) introduced the amendment, which makes certain provisions of the Pension Protection Act (PPA) permanent. Among other things, the amendment repeals the anti-cutback rules for underfunded multi-employer pension plans, and allows plan sponsors to apply to the Pension Benefit Guaranty Corporation to partition a plan.
Wage and Hour
The Department of Labor’s Wage and Hour division will receive $227.5 million in funding under the measure. According to the report accompanying the legislation, the WHD must provide a report to the House and Senate Committees on Appropriations within 180 days outlining the steps it has taken “to improve the process for wage determinations for public works projects and correct the deficiencies found in the 2004 OIG report titled ‘Concerns Persist with the Integrity of Davis-Bacon Act Prevailing Wage Determinations.'” Within 120 days the WHD must submit a report on the methodology and accuracy of the “Adverse Effect Wage Rates.”
OSHA, which is slated to receive $553 million, is directed to notify the Appropriations Committees “10 days prior to the announcement of any new National, Regional or Local Emphasis Program including the circumstances and data used to determine the need for the launch of a new Program.”
National Labor Relations Board
The Board, which today released its final election rule changes, will receive $274 million, is prohibited from using any of this funding “to issue any new administrative directive or regulation that would provide employees any means of voting through any electronic means in an election to determine a representative for the purposes of collective bargaining.”
Equal Employment Opportunity Commission
The EEOC will receive $364.5 million, but would not be able to use any of this funding to “implement any workforce repositioning, restructuring, or reorganization until such time as the Committees on Appropriations of the House of Representatives and the Senate have been notified of such proposals, in accordance with the reprogramming requirements of section 505 of this Act:”