What's left for Obama's labor agenda

By BRIAN MAHONEY 01/04/16 10:00 AM EST

With help from Marianne LeVine

WHAT’S LEFT FOR OBAMA’S LABOR AGENDA: The federal agencies that regulate labor and employment are preparing for the Obama administration's home stretch, with several major rulemakings likely before the end of 2016. Here’s what we’re tracking (pros can read our full run-down of the administration’s labor priorities here):

DOL finalizes major rules on wages, safety: The Labor Department appears on track to complete three major rulemakings in 2016. The final fiduciary rule, expected in March, would require financial professionals to act only in the best interests of their clients when providing retirement advice. The final overtime rule, expected in July, would double the salary threshold under which virtually all salaried employees would be guaranteed time-and-a-half pay if they worked more than 40 hours in any given week. And the final silica rule, literally decades in the making and due in February, would reduce substantially the legally permissible level of workplace exposure to crystalline silica, a cancer-causing agent commonly found on construction sites.

Of those three, the least sure bet is the overtime rule. That’s because any rule that comes out after May 18 risks getting tangled up in the 1996 Congressional Review Act, which gives Congress 60 legislative days to vote down any major regulation before it takes effect. The president may, of course, veto this “resolution of disapproval” (and Obama did so last year when Congress voted down the NLRB’s union election rule). But if those 60 legislative days extend beyond Jan. 20, 2017, and if a Republican president is inaugurated that day, then he (or she) won’t likely let stand a rule that extends time-and-a-half to 5 million additional workers.

Yes, that’s a lot of “ifs.” But it’s precisely how OSHA’s ergonomics rule was defeated early in 2001 after George W. Bush succeeded Bill Clinton in the White House. Sam Batkins, director of regulatory policy at the conservative American Action Forum, and Ronald White, director of regulatory policy at the liberal Center for Effective Government, don’t agree about much, but one thing they do agree on is that any regulation finalized after May 18 risks reversal if the GOP recaptures the White House in November.

No more NLRB bombshells: The Obama NLRB’s most ambitious days are probably behind it. In 2014 and 2015 the agency took advantage of a long-delayed quorum to release the union elections rule and--even more significant--to institute a new joint employer standard (in a case concerning Browning-Ferris Industries) that will likely make it easier for the NLRB to establish McDonald's as a joint employer with franchisees accused of labor law violations. Proceedings in that case resume next week (more on that below).

The NLRB is exploring other potential avenues of liability for companies that make use of staffing agencies or subcontractors. In a case called Miller & Anderson the board may allow unions to represent permanent and temporary employees within a single bargaining unit. Under current board law, a mixed unit is allowed only if both employers consent. http://politico.pro/1O4ZXJN

MARK YOUR CALENDAR: Here’s what’s coming up this month in the world of labor and employment policy.

— Jan. 8: JOBS DAY: Analysts quizzed by Bloomberg expect the economy to have added 170,00-230,00 jobs in December (good), but also expect wage growth to remain sluggish at 0.1 to 0.3 percent (bad).

— Jan. 11: FRIEDRICHS ARGUMENT: The Supreme Court will hear oral argument in the biggest labor case of the year, Friedrichs v. California Teachers Association. The case allows the court to reconsider its 1977 Abood decision, which sanctioned the fair-share fees that public sector unions collect from non-members to cover their portion of collective bargaining costs. A decision against the unions in this case might effectively impose a right-to-work regime on public employee unions nationwide, creating a flood of “free riders” who drain union coffers.

— Jan. 11: NLRB V. MCDONALD’S: The same day as the Friedrichs argument an NLRB administrative law judge will hear arguments in the NLRB’s unfair labor practice case against McDonald’s. The proceedings will focus on whether the company should be named a joint employer alongside its franchisees in cases accusing the company of cracking down on 2012’s fast food protests.

— Jan. 12: STATE OF THE UNIONS?: President Obama has promised something different for his final State of the Union address this year. The A.P. reports that the White House is promising a non-traditional address that eschews “the standard litany of policy proposals for a broader discussion on the challenges facing the country.” We suspect the American worker will figure prominently in the speech, but we’re less certain how vigorously Obama will defend labor unions. (Flashback: Last year POLITICO’s Timothy Noah and David Nather were struck by how little the president had to say about the not-yet-proposed overtime rule--the Obama administration’s most ambitious intervention in the wage economy--in a speech whose principal theme was “middle class economics.”)

REID WANTS WAGE HIKE IN ‘16: Senate Minority Leader Harry Reid wants to use his last year in office to push for an increase in the federal minimum wage and for legislation to narrow the gender wage gap. “I hope that we can do something for the middle class,” Reid told the Las Vegas Review-Journal in an interview published Saturday. “Raise the minimum wage and do something about the fact that my daughters, my granddaughters, should be able to get paid the same amount as a man that does the same work." http://bit.ly/1OsOqre

RIGHT TO WORK IN 2016: Even without a ruling in Friedrichs that’s adverse to public sector unions this may prove a watershed year for right-to-work. Local jurisdictions in Kentucky and Illinois are still pressing to establish right-to-work at a level below state government, and various states will weigh right to work bills.

The next domino to fall will bring the total number of right-to-work states to 26, meaning that for the first time the majority of states will prohibit unions from collecting dues or their equivalent from non-members. West Virginia, Kentucky, and Missouri will all consider right to work in 2016, but "West Virginia is the most likely," said James Sherk, a research fellow in labor economics at the conservative Heritage Foundation.

Republicans in 2014 captured majorities in West Virginia's House and state Senate for the first time in 80 years, and Senate President Bill Cole has said he will make right to work a priority. The state's Democratic governor, Earl Ray Tomblin, would likely veto, but in West Virginia the legislature may on most bills (including this one) override a veto with a simple majority. The only real constraint state Republicans face is the legislative calendar, which might not afford time to schedule an override vote. But Cole says he’ll move early, wrapping up the final votes by March.

Missouri looks less likely. The state’s Republican House Speaker, Todd Richardson, told the St. Louis Post-Dispatch that he didn’t think right-to-work would be a top GOP priority. http://bit.ly/1StXMVy

OBAMA GIVES CHRISTMAS GIFT TO HIGH-SKILLED WORKERS: “The Obama administration is helping some high-skilled, foreign workers remain in the country without being tied to their employers,” the International Business Times’ Christina Silva writes. “The Department of Homeland Security announced Thursday new rules that would allow certain visa holders to switch jobs more easily while waiting for a green card, The Hill reported.”

“The White House said the 181-page proposal would help resolve a massive visa backlog." http://bit.ly/1ZIKcPW

NLRB UPDATE: WHAT YOU MISSED OVER THE BREAK

— VOLKSWAGEN APPEALS IN CHATTANOOGA: The automaker appealed a union election of 162 maintenance workers at the company's Chattanooga plant, saying the smaller unit is a "sure-fire recipe for instability.” In an NLRB filing, Volkswagen appeared to hint that an ongoing scandal over its vehicles' rigged emissions technology would compel it to drive a harder bargain with the new unit. Read UAW’s response here. http://politico.pro/1O5gE7Y

— NLRB OKS WORKPLACE RECORDING: The NLRB ruled that Whole Foods Market's policy prohibiting recording in the workplace violated the National Labor Relations Act, reversing an administrative law judge's decision. Whole Foods Market forbade employees from recording conversations, phone calls, images or company meetings without prior management approval. The company maintained the policy was intended to allow employees to express their opinions freely about store management. http://politico.pro/1mySQC8

— BOARD TAKES COLUMBIA CASE: The board agreed to take amicus briefs on whether Columbia University graduate students are eligible for union organizing. http://politico.pro/1ILzy6Y

COFFEE BREAK

— Nearly 200 Muslim workers fired in Colorado meatpacking prayer dispute, from Washington Times: http://bit.ly/1YZKeWW

— OSHA flexes its muscle, from Business Insurance: http://bit.ly/1RYaUmt

— Chris Christie ends waiver for work requirement to get food stamps, from A.P.: http://bit.ly/1MOqx7Z

— Southwest ground workers to vote on a new tentative deal, from the Wall Street Journal: http://on.wsj.com/1UoU0v2

— Overtime suit against law firm Quinn Emanuel falls, from the Wall Street Journal: http://on.wsj.com/1mYAs66

— Stiffing workers and still getting tax breaks, from Crain’s and ProPublica: http://bit.ly/1UoUAJl

THAT’S ALL FOR MORNING SHIFT. HAPPY NEW YEAR.