Frank C. Morris, Jr., Member of the Firm in the Litigation, Employee Benefits & Executive Compensation, and Employment, Labor & Workforce Management practices, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “Will PRO Act Provisions Survive Budget Reconciliation?” by Kevin Stawicki. (Read the full version – subscription required.)

Following is an excerpt:

Congressional Democrats may be partially successful in their attempt to add key parts of the proposed federal labor law overhaul known as the PRO Act into a filibuster-proof budget reconciliation bill, but the fate of that endeavor will rest in the hands of one of the most powerful but little-known women on Capitol Hill. …

Democrats are taking the reconciliation route to push pieces of the labor overhaul because they have little chance of passing the PRO Act on its own, experts said. The House passed the bill in March, but it has languished in the Senate.

"There's significant concern on the part of organized labor, which has made this legislative priority number one, that they will not be able to get the PRO Act or significant parts of it through the 50-50 Senate," said Frank Morris of management-side firm Epstein Becker Green. "Therefore, they're going to sneak significant pieces of it into the reconciliation bill." …

While there's no way to predict how MacDonough will view the package presented to her, observers said it's instructive to consider her decision in February to shoot down the $15 minimum wage provision that Democrats proposed as a part of a COVID-19 pandemic relief package. Democrats had argued that there was a monetary impact of increasing the federal minimum wage to $15 because federal tax revenues would increase as a result.

In that instance, MacDonough evaluated the broader impact of the increased federal minimum wage in order to conclude that it did not follow the Byrd rule, Epstein Becker's Morris said. He said the labor provisions in the latest budget reconciliation process could have a similar fate.

"To the extent that kind of analysis is used, I think it's problematic to think that this can pass muster," Morris said. "It's going to depend on whether she takes a broad or narrow view of this."

Regardless of how MacDonough, who has wide discretion over what ends up in the bill, decides the issue, observers said she's up for the task.

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