On Wednesday a House Appropriations Subcommittee voted 8 to 6 in favor of advancing a bill (pdf) that would provide fiscal year 2013 funding for the Department of Labor (DOL), the Department of Health and Human Services (HHS), the National Labor Relations Board (NLRB), and other related agencies. This measure contains a number of significant limitations on how these agencies would be entitled to use such funding. Among other restrictions, this funding legislation would curtail the implementation and enforcement of several labor, employment, and healthcare-related regulations and programs.
Overall, the bill would allocate $12 billion to the Department of Labor, an amount that is $497 million less than that granted to the agency for 2012 and $72 million below the President’s request. The measure includes the following restrictions on the use of these funds:
- The Wage and Hour Division (WHD) would be prohibited from pursuing its companionship exemption regulation.
- The bill would prohibit the enforcement of a final rule implementing Executive Order (E.O.) 13502, Use of Project Labor Agreements for Federal Construction Projects. This E.O. declared it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .”
- The measure includes a prohibition on the Office of Labor-Management Standard’s (OLMS) creation and implementation of a regulation that would narrow the scope of the “advice” exemption under the Labor-Management Reporting and Disclosure Act (LMRDA).
- The bill would prevent any funds allocated to the Employee Benefits Security Administration (EBSA) from being used to promulgate a rule that would amend the definition of “fiduciary” under ERISA. Although the proposal to amend the definition of fiduciary was issued in October 2010, in September 2011 the EBSA announced that it would gather more input from stakeholders and re-issue the rule after additional consideration.
- The bill would prevent the Occupational Safety and Health Administration (OSHA) from using funds to develop and implement a rule creating an injury and illness prevention program.
- A provision in the appropriations bill would prevent the DOL from enforcing its new rule governing H-2B visas for temporary, seasonal nonagricultural workers for the fiscal year. The rule is currently facing a legal challenge.
- The measure would prohibit funds from being used to enforce the Fair Labor Standards Act (FLSA) regulation that makes automotive service managers, service writers, service advisors and service salesmen who are “not primarily engaged in the work of a salesman, partsman or mechanic” subject to minimum wage and overtime requirements.
- The bill includes a provision that prohibits the Mine Safety and Health Administration (MSHA) from proceeding with development or implementation of a rule governing coal mine dust.
The appropriations bill would provide $258.3 million for the NLRB, $20 million below last year’s funding level, and $34.5 million less than the President’s budget request. The bill includes the following restrictions:
- The measure includes a provision that would prevent the NLRB from using any funds provided in the bill to enforce its decision in Specialty Healthcare, which allows union certification of smaller bargaining units.
- The bill prevents funds from being used to “implement, create, apply, or enforce through prosecution, adjudication, rulemaking, or the issuing of any interpretation, opinion, certification, decision, or policy, any standard for secret-ballot elections that conflicts with the standard articulated in the majority opinion in Dana Corp., 351 NLRB 434 (2007).” The bill prevents the NLRB from using funds “to issue any new administrative directive or regulation that would provide employees any means of voting through any electronic means that enables off-site, remote, or otherwise absentee voting in an election to determine a representative for the purposes of collective bargaining.”
- The NLRB would also be precluded from using funds to implement its rule amending representation election procedures. In light of ongoing litigation opposing this rule, the NLRB has suspended its enforcement.The appropriations bill would also prevent the NLRB from using funds to develop portions of the proposed rule that were omitted from the final regulation.
As expected, the funding bill would defund a number of Affordable Care Act provisions and programs that would effectively prevent the law’s implementation. Specifically, the bill would rescind prior-year mandatory funds, and prevent the HHS from using any new discretionary funding to implement the health care reform law.
Last month the Senate Appropriations Committee approved its own version of this multi-agency funding bill. In advancing the Senate bill, Senate Appropriations Committee members rejected amendments that would have prevented the NLRB from enforcing the Specialty Healthcare decision and its expedited election rule, as well as prevented the agency from bringing lawsuits against states that have enacted secret ballot protection measures. The two drafts – if eventually approved by their respective chambers – would therefore need to be reconciled. However, the prospects for agreement on this and other appropriations bills this year appears unlikely.