Volume 8 | Issue 22
Both congressional chambers were on recess last week providing a much needed respite following the unveiling of President Trump’s budget proposal and release of the CBO report on the House-passed health care reform bill. This week, lawmakers return to the challenge of passing health care reform legislation. Earlier this month, Congress introduced various bills to address the minimum wage, a controversial NLRB decision, and portable benefits for workers participating in the gig economy.
Big Picture for Health Care Reform
Each week, whether in session or on recess, the wheels of Congress are in motion, although progress is sometimes elusive. The challenges for advancing employee benefits, employment, and labor bills may be based in policy or political differences; procedural or substantive rules; the calendar; or matters wholly unrelated to the American workforce. Elections, confirmation hearings, the debt ceiling, and numerous domestic and foreign policy issues may take priority over workforce matters or simply create dynamics that prevent legislation from advancing. So, what does that mean for this Congress, five months into the current term, less than two months before the month-long August recess, with fewer than four months before the end of the 2017 fiscal year, and the 2018 mid-term elections around the corner?
It means that Congress may find itself in a bit of pickle come Labor Day. For example, if Congress is unable to advance the American Health Care Act (AHCA), or another health care reform bill, quickly – as in before the August recess – efforts may stall. Once September rolls around, the focus will inevitably turn to legislation to fund government operations after September 30 (when funding from the current appropriations run dry). Thereafter, the question will be whether the GOP wants to spend the second year of the two-year congressional term focusing on health care or other agenda items.
Comment. If Congress does not pass the AHCA legislation, or another health care reform bill, before the start of the 2018 fiscal year (October 1, 2017), it may lose the privileges that attach to the current reconciliation vehicle. In other words, if the bill is not enacted before that date, the bill may need support from a full two-thirds of Congress (rather than a simple majority) – a probably unattainable feat given the lack of support from Democrats and the intraparty divide within the GOP. As such, there is increasing pressure on the GOP to get the task finished before the August recess, or at least before September, when the focus will shift to avoiding a government shutdown and appropriating funding for the 2018 fiscal year.
Senate Takes a Turn
This week, the Senate GOP will likely continue to craft its version of the AHCA, or another health care reform bill, with the hope that the Republican whip can muster enough votes to pass it, and the two chambers can begin work on building consensus for a streamlined bill that can pass the full Congress and be presented to the president.
Year after year, Sen. Bernie Sanders, I-Vt., together with scores of Democrats in both chambers, have sought to raise the federal minimum wage. Notwithstanding their lack of success to date, they have introduced legislation once again – Raise the Wage Act (S. 1242 and H.R. 15) – to gradually raise the federal minimum wage from $7.25/hour to $15/hour by 2024. For additional information and background, see Sen. Sanders’ press release and one-page summary, as well as our May 2, 2016 Legislate and FYI Roundup from December 23, 2016.
Earlier this month, Sen. Johnny Isakson, R-Ga., reintroduced legislation – Representation Fairness Restoration Act (S. 1217 and H.R. 2629) – to reverse the National Labor Relations Board’s 2011 Specialty Healthcare & Rehabilitation Center of Mobile decision that adopted a unit determination standard to permit small groups of employees to form micro-unions representing only a portion of a company’s workforce. For additional information and background, see Sen. Isakson’s press release and Rep. Francis Rooney’s, R-Fla., press release, as well our June 20, 2016 Legislate.
Companies are grappling with how to handle workers who are not traditional W-2 employees, but may not fit neatly within the parameters of an independent contractor. While lawmakers consider what role, if any, government should play in shaping the relationship between businesses and so-called gig or on-demand workers, they are exploring a possible legal framework for providing traditional employee benefits and protections (e.g., health and retirement) to a growing independent workforce without creating the burdens on a company (e.g., responsibilities, costs and exposure to liabilities) that would typically attach only in the employee/employer context.
In response to the growth of alternative work arrangements and new business models that include the use of independent contractors, contract workers, self-employed individuals, freelance workers, temporary workers, and contingent workers, Sen. Mark Warner, D-Va., and Rep. Suzan DelBene, D-Wash., introduced the Portable Benefits for Independent Workers Pilot Program Act (S. 1251 and H.R. 2685). The legislation would create a pilot program at the DOL and allocate $20 million in competitive grants for states, local governments and nonprofits to experiment with new models or improve existing models for portable benefits for independent workers. As noted in Sen. Warner’s press release, the legislation is designed to foster development of a “system of portable benefits that allow workers to carry these benefits with them from job to job across a lifetime in the workforce.” For additional information on lawmakers’ efforts to address employment matters relating to the gig economy, please see our February 8, 2016 and August 8, 2016 issues of Legislate.
Comment. These bills may garner some bipartisan backing. The health care policy paper released last year as part of the GOP report titled “A Better Way” discussed support for portable health coverage. (See our June 27, 2016 Legislate for additional information on the health care policy paper.)
Looking Ahead – Fiduciary Rule
This week the House is expected to consider and vote on the Financial CHOICE Act (H.R. 10, Sec. 841), comprehensive legislation that includes a provision to repeal the DOL fiduciary rule, allow the SEC to take the lead on issuing one, and require DOL guidance to align with the SEC. For additional information and background on the status of the fiduciary rule, please see our May 24 For Your Information.