Punching In: Many To-Do’s Remain on Labor Regulatory Agenda

Monday morning musings for workplace watchers.

Next-Up Regulations|Students Striking, UAW Election

Rebecca Rainey: The Biden DOL is wrapping up 2022 with quite a few items left on its regulatory agenda, including major rules that are expected to face scrutiny in the newly Republican-controlled House.

Here’s a rundown:

Overtime: We’re still waiting on the Wage and Hour Division to release a proposal to update its overtime regulations. The rulemaking was due last month, according to the regulatory agenda. Throughout the summer the agency held stakeholder meetings seeking input on the rule change, which is expected to expand time-and-a-half protections to more workers.

Under the Fair Labor Standards Act, workers are exempt from OT pay if they are salaried, earn more than a certain amount per year, and work in a “bona fide executive, administrative, or professional capacity.”

The salary threshold under which workers are automatically owed overtime pay is $35,568, a figure set by the Trump administration in 2019.

Democrats and labor groups say the department has the authority to raise the OT salary threshold to $82,732 by 2026, but it’s unclear if the Biden administration will go that far. Business groups have urged the Biden DOL to abandon the update all together, arguing that companies couldn’t shoulder the new payroll costs with rising inflation.

During the Obama administration, the WHD issued a rule to raise the salary threshold to $47,476, and update it every three years based on changes in average income. But a Texas-based federal judge invalidated the regulation in 2017, finding in part that the salary threshold was too high.

Prevailing wages: A final rule that would tweak how the agency calculates prevailing wages paid to workers on federally funded construction projects under the Davis-Bacon Act is due in December, according to the regulatory agenda. The 1931 law requires workers to receive pay and benefits equal to local rates for similar jobs when working on projects funded by the federal government.

The DOL’s changes are being closely watched ahead of the wave of infrastructure projects expected to be subject to those rules. Companies looking to tap into certain tax credits under the Inflation Reduction Act must pay prevailing wages, among other requirements.

The proposal would set the prevailing wage at the rate paid to at least 30% of workers doing a particular job in a geographic area. DOL currently calculates the “prevailing wage” through a survey process, and designates a rate as “prevailing” if more than 50% of workers in a certain area are paid at that amount.

The Biden DOL said it often doesn’t receive enough responses to its surveys, leaving the agency to use an average rate when setting wages for certain federal projects. The administration said the lower threshold will allow the agency to set a “prevailing” rate in more instances. But, industry groups have criticized the determinations, arguing they are based on inaccurate survey data and skewed in favor of union rates.

“Persuader” rule: The DOL is also due to release a final rule that would expand reporting requirements for businesses that use anti-union consultants.

The agency sought public input on the proposal, which would require companies to include whether they’ve been a contractor for the federal government on their LM-10 form, through October.

Some businesses are required to file an annual LM-10 form, detailing the company’s expenditures on consultants hired to “persuade” employees regarding their organizing and collective bargaining rights or to monitor the activities of employees and unions involved in a labor dispute.

If the rule is finalized, businesses also would be required to report if they are a federal contractor or subcontractor, as well as the agency or agencies that contract with them for work.

Academic workers and supporters picket during a strike at the University of California Los Angeles campus in Los Angeles, on Nov. 21. About 48,000 academic workers across the prestigious University of California system have walked off the job, backed by the United Auto Workers.

Photographer: Jill Connelly/Bloomberg via Getty Images

Ian Kullgren: The United Auto Workers has a big week ahead.

While everyone’s attention has been fixed on the renewed threat of a rail strike, the largest work stoppage of 2022 has been playing out at University of California campuses across the state. Some 48,000 teaching assistants and researchers have now been on strike for two weeks under the auspices of the UAW, which in recent years has made a big push into higher education.

This is no ordinary walkout—it’s the largest higher ed strike ever recorded in our Bloomberg Law database of work stoppages, which spans more than three decades.

While the UC strike doesn’t affect the supply chain in the same way a rail strike would, it’s a high-water mark in the movement for academic unions and reflects how the wave of post-pandemic worker unrest isn’t just about blue-collar jobs.

Also at play is a shifting legal landscape that has emboldened student workers. The National Labor Relations Board last year scrapped a proposal that would have banned those students from organizing. Unions at Columbia, Georgetown, and Harvard have sprung up in recent years, prompting the UAW and other non-education unions to get in on the action.

But public universities, which are generally larger than private schools, are governed by state collective bargaining laws—a factor that seems to be working in the UC students’ favor so far. The California Public Employee Relations Board said last week it issued seven unfair labor practice complaints against the university administration for withholding information about wages and stipends, and for neglecting its duty to bargain.

Read more: University of California Workers Strike, Demanding Wage Hikes

On top of the UC strike, the UAW is wrapping up its first election to pick the next union president. Whoever wins when the votes are tallied this week will inherit the tough job of cleaning up the scandal-plagued union and preparing for contract negotiations with the Detroit automakers next year. The count starts Tuesday, but we may not know the results until later in the week.

The election will be overseen by a federal watchdog appointed under a settlement in 2020 with the US Department of Justice. It will be a tightly run operation, with representatives from the monitor’s office and candidate-picked election observers watching every step of the process at the facility near Dayton, Ohio.

Incumbent UAW President Ray Curry is the odds-on favorite, but we’ll still be watching the vote totals for Curry’s main opponent, Shawn Fain, as well as the down-ballot races. Even if Fain doesn’t win this time, a strong showing would suggest deeper discontent among UAW members than previously known—and a brewing reform movement that could shake up negotiations with the Detroit automakers next year.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.