For the third time during this fiscal year, the federal government has averted a partial shutdown by passing a funding bill through March 11^th. A portion of the minimum wage increase for federal contractors has been enjoined and several states have filed two separate lawsuits challenging the executive order raising the minimum wage for contractors. The Labor Department has launched an initiative to protect workers in the warehouse and logistics industries. An appellate court has raised reversed the denial of a preliminary injunction in a case challenging the COVID-19 vaccine policy of United Airlines. A public sector bargaining bill has been introduced in the House of Representatives.

Congress Approves Another Temporary Government Funding Bill – The US Congress passed, and President Biden signed another continuing resolution funding the federal government through March 11, 2022. This action prevents a partial government shutdown that would have occurred on February 18^th. None of the twelve appropriations bills funding the federal government have been passed so far during this fiscal year that began on September 30, 2021, and this is the third continuing resolution passed to avoid a partial government shutdown.

Portion of Minimum Wage for Federal Contractors Enjoined – The U.S. Court of Appeals for the Tenth Circuit, in the case of Duke Bradford, et al. v. U.S. Department of Labor, enjoined the federal government from enforcing the $15/hour minimum wage for employees of federal contractors for those “contracts or contract-like instruments entered into with the federal government in connection with seasonal recreational services or seasonal recreational equipment rental for the general public on federal lands.” President Biden issued Executive Order 14026 raising the minimum wage for employees of federal contractors to $15/hour effective January 30,2022.

There are eight states that joined recently in filing two lawsuits challenging this executive order. The States of Arizona, Idaho, Indiana, Nebraska, and South Carolina joined together to file the case of State of Arizona et al. v. United States Department of Labor, et al. in U.S. District Court for the District of Arizona while the States of Texas, Louisiana, and Mississippi combined to file the case of State of Texas, et al. v. Joseph Biden, et al. in the U.S. District Court for the Southern District of Texas, Victoria Division.

DOL Initiative to Protect Warehouse & Logistics Industries Workers – The U.S. Department of Labor (DOL) launched a warehouse and logistics workers initiative designed to ensure that workers in these industries are:

• Paid their legally earned wages.
• Safe from harassment and retaliation when asserting their rights.
• Able to take time off under the Family and Medical Leave Act.
• Not misclassified as independent contractors.

While noting the vital role workers in these industries have played during the pandemic, Acting Wage and Hour Division Administrator Jessica Looman stated that the “Wage and Hour Division will use all of its tools to ensure employers comply with federal labor laws and pay workers their hard-earned wages.” The Wage and Hour Division will use education, outreach, and enforcement to ensure compliance and reduce violations of federal laws.

Appellate Court Questions United Airlines Vaccination Policy – The U.S. Court of Appeals for the Fifth Circuit has reversed a U.S. District Court ruling in the case of David Sambrano, et al., v. United Airlines. In this case, the District Court refused to issue a preliminary injunction against the policy of United Airlines that required employees in the United States either to be vaccinated against COVID-19 or receive a medical or religious exemption. The District Court found that the six plaintiffs who brought this case alleging violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act could not establish an irreparable injury that was one of the factors needed to grant a preliminary injunction. According to the Fifth Circuit, “the purpose of a preliminary injunction is to preserve the status quo and prevent irreparable injury until the court renders a decision on the merits.”

The accommodation provided to those employees granted exemptions was retaining their jobs, but not being allowed to go to work, not being paid, and not receiving benefits. After this lawsuit was filed, the company changed its policy to require vaccinations only for those employees who had direct customer contact. In reversing the District Court, the Fifth Circuit stated that “United has presented plaintiffs with two options: violate their religious convictions or lose all pay and benefits indefinitely. That is an impossible choice for plaintiffs who want to remain faithful but must put food on the table. In other words, United is actively coercing employees to abandon their convictions.” The Fifth Circuit remanded the case to the District Court to consider other factors that needed to be evaluated when deciding whether a preliminary injunction will be issued.

Public Sector Bargaining Bill Introduced – The Public Service Freedom to Negotiate Act (H.R. 5727) has been introduced by Representative Matthew Cartwright (D-PA). The bill has 181 cosponsors – 178 Democrats and 3 Republicans and has been referred to the Committee on Education and Labor. The bill would provide public employees with the right to join unions and require that public employers recognize unions selected by a majority of employees in a designated bargaining unit and engage in collective bargaining with them.

The bill would be administered by the Federal Labor Relations Authority (FLRA) which would issue rules within one year of the law being enacted. The FLRA would have 180 days after the effective date of the law to determine if state laws provide collective bargaining rights. If not, they would be subject to FLRA authority two years after the enactment of the law.  During the two-years after enactment of the law, states could pass their own collective bargaining law.

The bill would prohibit any employer, emergency services employee or law enforcement officer from engaging in a lockout, strike or other job action that could result in a disruption of the delivery of emergency or public safety services. The bill would require an impasse resolution procedure culminating in binding arbitration. The bill would authorize payroll deductions for union fees.

For private sector employees, the Protecting the Right to Organize Act (H.R. 842, S. 420) has been introduced by Representative Bobby Scott (D-VA) and Senator Patty Murray (D-OR). The House of Representatives has passed H.R. 842, which is designed to strengthen federal laws that protect workers’ rights to organize a union and bargain for wages and benefits. The bill is pending in the U.S. Senate. 

An alternative to the bills designed to encourage unionization is the Teamwork for Employees and Managers Act (S. 3585, H.R. 6579) introduced by Senator Marco Rubio (R-FL) and Representative Jim Banks (R-IN). The proposal would allow for the establishment of voluntary Employee Involvement Organizations (EIOs) as an alternative to unions in private sector companies with more than $1 billion in annual revenues. The EIOs would be designed to create a new way for managers and workers to discuss workplace issues such as quality of work, productivity, efficiency, compensation, benefits (including education and training), and accommodation of religious belief and practices.  The EIOs are an alternative to unions and would be prohibited from engaging in or negotiating collective bargaining agreements. The EIOs could be dissolved by the employer. Any disputes that arose would be determined by courts and not the National Labor Relations Board (NLRB). The bills have been referred to the House Committee on Education and Labor and the Senate Committee on Health, Education, Labor, and Pensions.

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.