Thursday, March 31, 2022
Manchin, Sinema, Kelly sink Biden labor nominee [Politico] David Weil’s bid to head the Labor Department’s Wage and Hour Division was dealt a fatal blow yesterday, after a trio of Senate Democrats voted against moving forward on his nomination. Weil, now the first Biden nominee to fail on the Senate floor, has faced heated opposition from Republicans and business groups dating back to his prior stint in the position for the Obama administration, meaning that he’d have likely needed unified Democratic support. The fate of the vote was still up in the air throughout Wednesday, as several key Democrats had been cagey about where they stood on Weil in recent days. Arizona Sens. Kyrsten Sinema and Mark Kelly and Sen. Joe Manchin, three of the caucus’ moderates, voted against the procedural vote. The final vote count was 47-53 against invoking cloture. Weil’s defeat on the Senate floor is a major defeat for the Biden administration, which has prided itself on its labor agenda, and for Senate Majority Leader Chuck Schumer, as leaders typically do not move items if they do not have the votes to pass. Shortly after the vote concluded, Senate HELP Chair Patty Murray issued a statement lamenting the failure of “an exceptionally qualified nominee with a long track record fighting to ensure workers get the wages they have earned.” Weil’s critics have faulted him for Obama-era policy moves on issues like independent contractor classification, joint employment designations and overtime pay, making him one of President Joe Biden’s most polarizing labor-related nominees. Several groups have been applying pressure on moderate Democrats like Sinema in hopes of tanking Weil’s nomination. The Senate HELP Committee deadlocked 11-11 on a vote last year to approve Weil. Lawmakers eventually voted to advance his nomination along party lines in January — aided by the absence of Sen. Rand Paul (R-Ky.) at the time. The Biden administration will have to regroup and will likely consider putting forward a different nominee for the post.
California Fair Employment & Housing Council Proposes Sweeping Regulation of Automated Decision-making and Artificial Intelligence in Employment On March 15, 2022, the California Fair Employment & Housing Council released draft revisions to the state’s employment non-discrimination laws that would dramatically expand the liability exposure and obligations of employers and third-party vendors that use, sell, or administer employment-screening tools or services that embody artificial intelligence, machine learning, or other data-driven statistical processes to automate decision-making. Learn More
Biden Signs Executive Order Promoting Pay Equity and Transparency In addition to digesting OFCCP’s release of a new directive on compensation, government contractors may soon see new regulations around inquiries into and the use of prior salary information. In conjunction with Equal Pay Day, President Biden signed a new Executive Order on Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency. In the Order, President Biden directs the Federal Acquisition Regulatory Council, in consultation with the Secretary of Labor to “consider issuing proposed rules to promote economy, efficiency, and effectiveness in Federal procurement by enhancing pay equity and transparency for job applicants and employees of Federal contractors and subcontractors.” Specifically, the President instructs the FAR Council to consider whether any such rules should limit or prohibit Federal contractors and subcontractors from seeking and considering information about job applicants’ and employees’ existing or past compensation when making employment decisions. Prohibitions on the reliance on prior salary history are not new, but up to this point have not been legislated at the federal level and have come through state and municipal action.
San Diego Supervisor Chair Nathan Fletcher Calls for Repeal of County PLA Ban During State of the County Speech Signaling how important construction union support is to Nathan Fletcher, he used the recent annual State of the County address to embrace the repeal of the County ban on PLAs for county construction. Speaking before an audience at the San Diego Continuing Education Center in the Mountain View neighborhood, he said he was there to talk “where we are, progress made and where we need to go.” The Ban on Project Labor Agreements in the San Diego County Charter ballot proposition was approved by 75.8% of county voters at the November 2, 2010 ballot. The ballot question was voted onto the ballot by a 4-1 vote of the San Diego Board of Supervisors. County supervisor Greg Cox voted against putting it on the ballot. San Diego County already had a county ordinance that banned PLAs. With the enactment of Proposition A in 2010, that ban became a part of the county charter. Proposition A says in part, "Except as required by state or federal law as a contracting or procurement obligation, or as a condition of the receipt of state or federal funds, the county shall not require a contractor on a construction project to execute or otherwise become a party to a project labor agreement as a condition of bidding, negotiating, awarding or performing of a contract." On October 2, 2011, Gov. Jerry Brown signed Senate Bill 922, the first of several bills to prevent California cities and counties from banning government-mandated PLAs. You can read and watch Fletcher (if you have a strong stomach) here.
California Continues to Go to the Dogs On March 17, Rover—a digital application connecting pet owners with daily pet-care providers—argued to the Ninth Circuit that it should uphold a California federal judge’s finding that a dog-sitter was properly classified as an independent contractor. While maintaining that it passes the strict three-pronged “ABC test” Rover also asserted that it is a “referral agency” under the California Labor Code and is, therefore, subject to the 11-factor Borello test, which is less stringent than the ABC test and focuses on whether the hiring entity has the right to control the worker in both the work completed and in the manner and means in which the work is performed. Rover asserted that the individual pet-care provider’s control over their rates; cancellations; services provided – including when, where, how, and for whom those services are provided; and that Rover requires no exclusivity from pet-care providers indicate that the providers are independent contractors. Additionally, Rover argued that facilitating a direct connection between clients and pet-care providers is different from “directly and continuously providing those services.” Moreover, Rover urged that since the dog walker uses her own tools for her work—in an industry where she works separately from Rover and has only used Rover sporadically—she is primarily engaged in her own independent business endeavor. The appellant pet-care provider, however, claimed that Rover “exerts pressure” on providers to perform certain tasks while pet sitting, such as sharing photos with owners while providing services. Further, the pet-care provider contends that Rover’s 20% service fee gives the company effective control over the provider’s rates. Chances are, this case will eventually end up at SCOTUS.
13 vulnerable trifectas in ’22 Thirteen state government trifectas are vulnerable this year, according to our annual trifecta vulnerability ratings. Democrats are defending seven and Republicans are defending six. A state government trifecta exists when one party controls the governorship and both chambers of the legislature. There are currently 14 Democratic trifectas, 23 Republican trifectas, and 13 states with divided governments. Arizona is the only highly vulnerable Republican trifecta this year. Race forecasters have rated the gubernatorial election as a Toss-up, and Republicans have a one-seat majority in both the state House and Senate.