Legislative Updates

September 25, 2023

Coalition Urging Agencies to Do More to Promote Trucking Program

Participation in the Safe Driver pilot program, an apprenticeship program intended to train drivers between the ages of 18 and 20 for interstate commerce, has been lacking in the year and a half since the program started.

Only 17 apprentices are currently enrolled in the program, according to data from the Federal Motor Carrier Safety Administration (FMCSA). Federal law currently prohibits young drivers from participating in interstate commerce, even though 49 states and Washington D.C. allow those aged 18-20 to hold a commercial learner’s permit. The DRIVE Safe Coalition, a group of 120 businesses and trade groups, including FEDA, has long sought to change that rule and expand the possible pool of drivers. The Safe Driver pilot program, part of the Infrastructure Investment and Jobs Act, is considered an important step to that reversal as it establishes a way for some truck drivers under 21 to begin operating across state lines and it collects data on their abilities.

In all, 33 carriers have been fully approved for the three-year program and 54 experienced drivers have been enrolled to serve as passengers for the small group of apprentices. Representatives from the Drive Safe Coalition attended a House Transportation & Infrastructure Committee hearing last week to urge the Department of Transportation and the FMCSA to do more to promote the pilot program and increase participation.


Sept. 18, 2023

Rule Would Allow More Salaried Workers to Qualify for Overtime

Business and trade organizations are seeking an extension to the 60-day comment period for the U.S. Department of Labor’s proposal to raise the minimum salary threshold at which workers are exempt from overtime. Currently, employees earning more than $35,568 are exempt from overtime rules, but the DOL’s plan would increase that to $55,068 with further automatic increases every three years.

As of now, the public comment period on the proposed rule is set to end on Nov. 7. A letter authored by the Partnership to Protect Workplace Opportunity and signed by organizations, including FEDA, is asking for an additional 60 days to give the employer community enough time to pull together data and adequately respond to the proposal.

“The proposed rulemaking includes a nearly 55 percent increase in the minimum salary threshold and automatically updates the threshold every three years,” the letter states. “These are significant changes that will have a massive impact on the economy and millions of current and future workers. Additional time is needed in the comment period to allow the regulated community to analyze the rulemaking, fully assess the potential impact the changes will have on the economy, business operations and workers, and develop comprehensive comments.”

The full letter is available here.


Sept. 18, 2023

Gasoline Accounts for More than Half of Monthly Inflation

The Consumer Price Index (CPI) rose 3.7 percent year-over-year in August, an uptick from 3.2 percent the month before. Although inflation has fallen from its peak of 8.8 percent in June 2022, it remains above the Federal Reserve’s 2 percent target rate.

On a month-to-month basis, gasoline was the largest contributor, accounting for more than half of the 0.2 percent increase in inflation between July and August. Housing also rose for the 40th consecutive month while energy was up 5.6 percent from July (but down 3.6 compared over the last 12 months). Meanwhile, wages rose 0.2 percent in August, marking only the second time this year that wages rose less than month-to-month inflation.

The core prices measurement, which removes volatile items such as food and energy costs, rose 4.3 percent on an annual basis and 0.3 percent between July and August. “The Federal Reserve looks at this metric closely. It is still high and hasn’t come down much since the Fed started raising interest rates in March 2022,” Curtis Dubay, chief economist for the U.S. Chamber of Commerce, says.


Sept. 18, 2023

Amendment Would Better Recognize Impartiality Concerns During FTC Reviews

The U.S. Chamber of Commerce has petitioned the Federal Trade Commission to amend how it handles recusal petitions. The changes sought by the U.S. Chamber are intended to ensure that potential conflicts are fully brought to light in a way that will preserve the rights of companies being prosecuted by the agency.

The petition is a response to FTC Chairwoman Lina Khan’s decision not to follow the commission’s ethics official’s recommendation that she recuse herself from the FTC’s review of Facebook parent company Meta’s acquisition of Within Unlimited, a virtual reality fitness company. Before joining the FTC, Khan voiced her belief that Facebook should be prevented from making any future acquisitions, an opinion that critics in the business community said made it impossible for her to serve as an impartial adjudicator of Meta’s acquisition.

“There are open questions about whether any agency, especially one like the FTC, should be able to bring cases in administrative courts that the agency itself controls,” writes Sean Heather, senior vice president for international regulatory affairs and antirust for the U.S. Chamber. “It is absolutely the case that the agency should be prohibited from bringing cases in its own courts if it cannot assure a fair adjudicatory process free from bias.”

Altering the recusal rules would help prevent situations where an FTC commissioner would oversee a case where they had seemingly predetermined the outcome. The U.S. Chamber’s proposed amendment would require the commission to:

  • Formally recognize impartiality concerns around prejudgment extend beyond mere financial conflicts of interest.
  • Seek and receive written legal guidance from agency ethics officials for any recusal petition.
  • Require the commissioner subject to a recusal petition to disclose in writing the justification for any decisions not to recuse.
  • Issue a written decision explaining the grounds for any decision related to a recusal petition.

The FTC will publish the petition in the Federal Register sometime in the next few weeks. Once it is published, individuals interested in addressing the petition will have 30 days to submit comments.


Sept. 11, 2023

New Standard Undoes Half-Century of Union Organizing Precedent

The National Association of Wholesale Distributors (NAW) and the Coalition for a Democratic Workplace are weighing possible actions after a new decision by the National Labor Relations Board (NLRB) imposes a framework for expanding the board’s ability to force employers to bargain with unions even without a secret ballot election.

On Aug. 25, the NLRB issued a decision in Cemex Construction Materials Pacific, LLC that requires employers to either recognize and bargain with a union or file an RM petition seeking an election once the union requests recognition on the basis that a majority of employees have designated the union as their representative. The new Cemex standard differs from the historical Joy Silk standard, the NLRB said in its announcement of the decision. The Joy Silk standard required an employer to bargain with a union unless it had a good-faith doubt of the union’s majority status. However, the standard still bypasses the requirement for a secret ballot vote by employees and overrules a half-century of precedent.

As explained by the NAW, unions historically must show that 30 percent of workers have signed cards in favor of unionization and then must petition the NLRB for a secret ballot election. The election process allows employees to hear competing arguments from employers, which often leads to less support for unionization, the NAW said.

The Cemex decision shifts the burden to employers to petition the NLRB for a secret ballot election after a union requests to be recognized based only on a show of cards, NAW notes. That could lead to situations where a union could prevail by default if an employer does not know they must request a secret ballot election.


Sept. 5, 2023

Proposed Rule Would Raise Threshold for Overtime Exempt Salaries

American companies would have to pay overtime to a larger pool of workers if a new rule proposed by the U.S. Department of Labor (DOL) is adopted.

The rule would raise the minimum salary threshold at which workers are exempt from overtime pay from $35,568 to $55,068. Further, it would implement automatic increases to the threshold every three years, at a rate tied to the 35th percentile of weekly earnings of full-time non-hourly workers in the lowest-wage census region.

Business groups were quick to oppose the proposed rule. “We’re disappointed DOL has decided to move forward despite repeated requests from [the Partnership to Protect Workplace Opportunity] (PPWO) and the regulated community to abandon or at least delay the rulemaking until the economy stabilizes,” said Josh Ulman, spokesman for PPWO, an organization comprised of associations, businesses and other stakeholders representing businesses. “Right now, we’re still recovering from the COVID-19 pandemic’s impact as we face continued inflationary pressure as well as a cooling job market.”

The U.S. Chamber of Commerce has also called on the DOL to adjust the proposed overtime change. “The Department of Labor’s proposed overtime regulation is the wrong rulemaking at the wrong time,” Marc Freedman, vice president of workplace policy, said in a statement. “It represents a more than 50 percent spike in the salary threshold and will increase costs for small businesses, nonprofits and other employers at a time when businesses already face persistent workforce shortages that are hindering the economy. The proposed regulation also includes an automatic escalator clause that lacks statutory authorization and guarantees the salary threshold will become unworkable in just a few short years. The U.S. Chamber hopes that DOL heeds the comments and input from employers and makes significant changes to its proposal.”

The change would wipe out the already thin margins that most restaurants operate on. “Restaurant operators are once again feeling the weight of uncertainty because of a Department of Labor change that will increase their operating costs,” Sean Kennedy, executive vice president of public affairs for the National Restaurant Association, said in a statement. “The average small business restaurant runs on a 3-5 percent margin, but DOL found that the changes proposed in this rule will increase costs for affected restaurants by 2.5 percent. Adding this kind of cost to the already high price of food and years of increasing labor costs will leave many of these operators in the untenable position of raising prices, cutting costs or closing their doors.”


Aug. 28, 2023

Department of Energy’s Proposed Rule Not Aligned with Market Conditions

Trade associations are asking federal agencies to ditch proposed energy-conservation standards for commercial refrigeration equipment (CRE) that would impose more stringent requirements on manufacturers.

The proposed rule was published by the Department of Energy’s (DOE) Office of Energy Efficiency and Renewable Energy in February and is still under consideration. While the DOE believes these requirements will result in important energy savings and emissions reductions, trade groups have pointed out that the DOE’s preliminary technical support document references outdated data that doesn’t align with current market conditions. Further, many of the agency’s suggested design options are already in use to meet current requirements and others are impractical or have high costs.

Representatives of the North American Association of Food Equipment Manufacturers (NAFEM); the Air-Conditioning, Heating and Refrigeration Institute; and the National Automatic Merchandising Association recently met with the White House Office of Management and Budget (OMB) about the DOE’s proposal and recommended that the OMB send the proposed rule back to the agency and instead direct it to issue a “no new standard” rule. Issuing a no new standard would reset the clock on the rulemaking timeline and provide another three years before a new standard could be proposed.

“Manufacturers need the certainty of reasonably balanced rulemakings to ensure that equipment can be designed, manufactured, installed and used to serve food safely and satisfy customer expectations. Instead, NAFEM members are experiencing an extraordinary regulatory burden represented by uncoordinated, poorly developed requirements hitting at the same time,” Charlie Souhrada, NAFEM vice president of regulatory and technical affairs, said in a statement. “We welcome greater engagement with DOE to maximize energy savings that are reasonable and practicable. Sending the CRE NOPR (notice of proposed rulemaking) back to DOE for improvement based on industry expertise is a great place to start.”


Aug. 21, 2023

Policy Expert Explain How FTC Chair Violated Public Trust

Federal Trade Commission (FTC) Chair Lina Khan is failing to maintain the high ethical standards expected of public officials, Sean Heather, senior vice president of international regulatory affairs and antitrust, explains in a new column for RealClearPolicy.

The column is a response to a June report from Bloomberg that Khan refused to recuse herself from the agency’s case against Facebook parent company Meta's proposed acquisition of a virtual reality fitness company. Khan’s decision was contrary to the recommendation of the FTC’s ethics officer, who in a 2022 memo said Khan should not participate as an adjudicator in the Meta case because of statements she made before joining the FTC that called for the agency to block any future acquisitions by Facebook. Her decision to remain involved drew criticism from business advocacy organizations who believe Khan preemptively made a decision in Meta’s proposed acquisition before a fair hearing could occur.

As Heather notes in the column, Khan’s involvement in the Meta case violates a pledge she made during testimony at her confirmation hearing, where she said under oath that she would follow the recommendations of the FTC ethics office. This was especially an issue since the FTC can serve as the investigator, prosecutor, judge and jury in many antitrust hearings.

“Chair Khan has deeply held views that present real questions of bias,” Heather writes. “Being faithful to those views and being a vigorous prosecutor is less the problem. The bigger problem is the inability to recognize that one cannot switch sides and preside over the internal trial."