Labor Laws in Danger After Texas Judge Rejects House Proxy Votes

A Texas federal judge’s decision to block a pregnancy bias law he said passed without a quorum in Congress raises the threat of further legal action attacking other labor-related laws approved through the same spending package.

Judge James Hendrix of the US District Court for the Northern District of Texas ruled Feb. 27 in the state’s favor that a proxy voting procedure initiated during Covid-19 lockdowns violated the US Constitution, rendering the Pregnant Workers Fairness Act unenforceable against Texas state employees.

The $1.7 trillion Consolidated Appropriations Act of 2023 that included the PWFA also incorporated the PUMP for Nursing Mothers Act, the SECURE 2.0 Act, and $25 million in funding for the National Labor Relations Board.

These laws and provisions may now be at risk of facing similar suits to Texas’s, a dynamic that could sew confusion about enforcement and ultimately lead to US Supreme Court intervention, according to labor and employment lawyers.

“It’s a pretty serious charge and a pretty incredible holding even though it’s narrow,” said Gerald Maatman, an employer-side attorney at Duane Morris LLP. “It causes one to pause and scratch their head. There’s so many implications to it.”

Narrow Approach

The PWFA and other labor-related laws were last-minute amendments to the massive omnibus spending bill that passed the Senate days before Christmas in 2022.

While senators were present for the vote, many House members were out and voted by proxy under rules that were later canceled by new Republican leadership in early 2023.

The lawsuit filed by Texas against the Justice Department, the Equal Employment Opportunity Commission, and other agencies in February 2023 began as a request to enjoin the whole funding package but later focused solely on appropriations for a single Department of Homeland Security pilot program as well as on the PWFA.

The narrowed nature of the injunction request appeared to resonate with Hendrix, who clarified in his decision the Quorum Clause-related challenges can’t simply be brought against just “any act of congress” passed through proxy voting.

Hendrix said Texas proved standing on the PWFA-related claim by showing the law’s costs to the state.

Texas’s government would bear roughly a $6,600 one-time cost for updating policies and amending trainings to comply with the PWFA and a $5,200 annual cost to stay in compliance, according to the ruling. However, Hendrix rejected the DHS pilot program challenge on the grounds that Texas didn’t provide enough evidence that it would impact the state’s resources.

The DOJ and EEOC didn’t respond to requests for comment on Hendrix’s decision.

“It’s obviously a loss when any category of workers is not covered,” said Sen. Bob Casey (D-Pa.), who for 10 years pushed for the PWFA in Congress. “It’s terribly disappointing.”

Texas’s decision to pursue a narrow litigation approach was critical to the success of the lawsuit, according to labor and employment attorneys.

“They had to prove injury, and they had to pick a subject area where they could demonstrate injury to get the judge to rule in their favor, and so impact on Texas state employees was low hanging fruit in the array of statutes, whereas the other ones might have been harder to show that sort of injury to manufacture their standing and get relief,” Maatman said.

Michael Dorf, a constitutional law professor at Cornell Law School, said states won’t be able to bring challenges to every law passed under the proxy vote rule as a whole because they will need to prove harm tied to each separate law or appropriation of funds to make the challenge successful.

Cases against any appropriations measures will be particularly hard to bring because it is difficult for an individual state or employer to show substantive harm in such a case, according to Michael Eastman, a management-side labor and employment attorney at NT Lakis.

A broader suit targeting the House’s Covid-era proxy voting rules was rebuffed. The challenge from former House Majority Leader Kevin McCarthy (R-Calif.) was rejected by the US Court of Appeals for the District of Columbia Circuit on jurisdictional grounds, which said it couldn’t review an internal legislative matter.

‘Dangerous’ Ruling

Despite its relatively small-scope holding, the Texas decision has advocates concerned about legal ripple effects. These could take the form of further PWFA challenges from the states as well as suits challenging the other labor-related provisions in the spending package, despite bipartisan support that existed for many of the bills.

“The logic of the opinion applies to all legislation Congress passed without a physically present quorum,” Dorf said.

“People should take this ruling seriously and understand how dangerous it is,” said Elizabeth Gedmark, vice president of A Better Balance, a group that advocates on workplace family policy.

The PWFA enjoyed support from both sides of the aisle, and organizations ranging from the US Chamber of Commerce to women’s advocacy groups. It attracted some controversy in August, however, when the EEOC’s rulemaking around the law included abortion in its definition of “pregnancy, childbirth, or related medical conditions.”

Both the PUMP Act, which requires employers to provide accommodations for breastfeeding parents, and the SECURE 2.0 Act, which contained a variety of provisions to boost worker retirement savings, also received broad bipartisan support.

Still, Eastman said the Texas litigation provides a “roadmap” for others—in both the private and public sector— looking to file similar cases.

“We have a model that another state can use to challenge the Pregnant Workers Fairness Act if it wanted to,” said Eastman. “And then, that could be borrowed by a private employer.”

Following the thread of Hendrix’s ruling, another judge could choose to enjoin the enforcement of a law passed under the proxy voting rules against all employers in the state or against one plaintiff company nationwide.

Similar to Texas, a private company would face the challenge of proving the enactment of the law in question harms them in a concrete way, he said.

Practical Problems

Court decisions rolling back certain labor laws and appropriations pose practical challenges, in addition to legal ones.

“If you accept that the omnibus funding bill was unconstitutionally enacted, what does it mean, that the NLRB received funding that wasn’t properly approved? I’m not sure the effect of that, right?” said Eastman. “The fact that the NLRB proceeded to issue complaints and process cases through administrative law judges and so forth, is that undone because the appropriation wasn’t properly authorized?”

Similarly, if the PUMP Act is withdrawn under the premise of being passed with no quorum, it raises questions that courts would have to address about whether that would require a re-institution of the Break Time for Nursing Mothers law under the Fair Labor Standards Act, which the PUMP Act replaced, he said.

If lawsuits like Texas’s find success, it’s possible a patchwork of rulings will emerge banning laws enacted under the proxy voting rule in specific state jurisdictions.

“It’s a very unorthodox or inconvenient problem to have: the law of the land being the law of the land in 49 states but not one state, or regulations being valid in 49 states, but not in one state, or valid in a state only with respect to private employees, but not state employees,” said Maatman.

Hendrix’s ruling also appears ripe for an appeal to the US Court of Appeals for the Fifth Circuit, and possible Supreme Court review, particularly on the issue of imposing judicial standards on legislative proceedings.

“This case is unusual in that it did step in and try to sort of regulate the internal workings of the house in a way that other courts have not,” said Joshua Huder, a senior fellow at the Government Affairs Institute at Georgetown University.

“My guess is that the Supreme Court would knock this down pretty easily just based on previous precedents, but, I don’t know how this is gonna play out,” Huder said.

—With assistance from Austin R. Ramsey and Kaustuv Basu

The case is Texas v. Dep’t of Justice, N.D. Tex., No. 23-cv-00034, opinion 2/27/24.