Climate Workforce Bill Would Adopt an ‘ABC’ Test for Determining Employee Status

Photo by Elijah Mears on Unsplash

Rep. Jayapal, Pramila [D-WA-7] Introduced the Climate Resilience Workforce Act in January which creates new programs to help states and communities build resilience to climate impacts and secure workers for resilience projects. The bill requires that an entity receiving funds under the bill does not require an abitration agreement for resolving disputes and determines if workers are employees or independent contractors by using the ABC standard. The bill says:

(a) Entities Funded Through Grant Programs Created by This Act.--
            (1) In general.--Notwithstanding any other provision of 
        law, an entity that, directly or indirectly, receives funds 
        under section 301 or 302, without regard to the form or type of 
        Federal assistance provided under such section or part, shall 
        comply with labor standards under this section.
            

                    (D) The entity, and all contractors and 
                subcontractors in the performance of the project, may 
                not require arbitration for any dispute involving an 
                employee described in subparagraph (E) engaged in a 
                service for the entity or any contractor and 
                subcontractor, or enter into any agreement with such 
                employee requiring arbitration of any such dispute, 
                unless such employee is covered by a collective 
                bargaining agreement that provides otherwise.
                    (E) For purposes of compliance with the National 
                Labor Relations Act (29 U.S.C. 151 et seq.), the Fair 
                Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), 
                and the requirements under this section, the entity, 
                and all contractors and subcontractors in the 
                performance of any project, shall consider an 
                individual performing any service in such performance 
                as an employee (and not an independent contractor) of 
                the entity, contractor, or subcontractor, respectively, 
                unless--
                            (i) the individual is free from control and 
                        direction in connection with the performance of 
                        the service, both under the contract for the 
                        performance of the service and in fact;
                            (ii) the service is performed outside the 
                        usual course of the business of the entity, 
                        contractor, or subcontractor, respectively; and
                            (iii) the individual is customarily engaged 
                        in an independently established trade, 
                        occupation, profession, or business of the same 
                        nature as that involved in such service.
                    (F) The entity shall prohibit all contractors and 
                subcontractors in the performance of any project from 
                hiring employees through a temporary staffing agency 
                unless the relevant State workforce agency certifies 
                that temporary employees are necessary to address an 
                acute, short-term labor demand.
                    (G) The entity shall require all contractors, 
                subcontractors, successors in interest of the entity, 
                and other entities that may acquire the entity, in the 
                performance or acquisition of any project, to have and 
                abide by an explicit neutrality policy on any issue 
                involving the exercise by employees of the entity as 
                described in paragraph (5), and of all contractors and 
                subcontractors in the performance of any project, of 
                the right to organize and bargain collectively through 
                representatives of their own choosing.
                    (H) Except for persons covered under subparagraph 
                (A)(1), the entity shall pay persons employed, in whole 
                or in part, using funds under this Act--
                            (i) for the 1-year period beginning on the 
                        date of enactment, not less than $15 per hour;
                            (ii) for each year thereafter, the amount 
                        determined by the Secretary under paragraph 
                        (4).

Representative Jayapal issued the following statement in support of the bill.

Legislation makes bold investments in building a skilled workforce that is capable of preparing for and responding to the climate crisis while creating millions of jobs and centering communities who are disproportionately affected by the harms of climate change

WASHINGTON — United States Representatives Pramila Jayapal (WA-07) led lawmakers today in introducing legislation to make bold investments in a workforce capable of preparing for and responding to climate change. The Climate Resilience Workforce Act builds the skilled, equitable, and necessary workforce that America needs to achieve climate resilience while creating millions of good-paying, union jobs and centering the communities who are disproportionately affected by the worsening climate crisis. 

This intersectional proposal also funds the development of regional, state, local, and community-based climate resilience action plans. Additionally, it creates an Office of Climate Resilience within the White House, starts new workforce development programs, and removes barriers to employment.

“As we continue pushing to enact a Build Back Better Act that includes the largest effort to combat climate change in American history, we’re refusing to leave frontline communities, climate resilience, and working people behind,” said Congresswoman Jayapal. “The innovative Climate Resilience Workforce Act responds to the worsening climate crisis at the scale necessary by investing in a skilled workforce that is capable of not only responding to but preparing for the destructive impacts of climate change. As we create millions of good-paying, union jobs and center the very communities who are disproportionately impacted, we are finally building back better, greener, and stronger.”

The Climate Resilience Workforce Act would build the workforce our nation needs to achieve climate resilience by:

* Creating millions of climate resilience jobs through grants to states, counties, cities, tribal governments, labor organizations, and community-based nonprofit organizations.

* Removing barriers to employment in climate resilience jobs based on immigration status and prior involvement with the criminal justice system by providing a roadmap to citizenship for workers employed in climate resilience sectors or in workforce training programs and prohibiting employers from inquiring about criminal history before an offer has been made.

* Funding existing workforce development programs and creating new ones through grants that train workers for employment within climate resilience sectors, with a priority for pre-apprenticeship and apprenticeship programs.

* Investing in the development of regional, state, local and community-based climate resilience action plans that center frontline communities and identify effective strategies to achieve climate resilience.

* Creating an Office of Climate Resilience within the White House that would focus on planning, worker protection, and equity.

While the severity and frequency of climate disasters has increased at an alarming rate in recent years, the United States currently lacks the necessary workforce to rapidly and completely respond to the crisis. The effects of these worsening climate disasters also disproportionately impact low-income communities, communities of color, and Tribal and Indigenous communities. Additionally, formerly and currently incarcerated individuals and undocumented immigrants play a critical role in supporting climate resilience — from fighting wildfires to helping communities prepare for and recover from climate disasters — yet face significant barriers to employment and threats to their health and safety. 

Today’s legislation is supported by local, national, and international organizations who focus on a diverse but interconnected set of issues — from climate and immigration to criminal justice reform and worker rights. Endorsing organizations include the Architecture Lobby, Data for Progress, Food & Water Watch, 350 Seattle, Sunrise Movement, Casa Latina, Asian Pacific Environmental Network, Gulf Coast Center for Law & Policy, Resilience Force, Friends of the Earth US, The Union of Concerned Scientists, Sierra Club, Indivisible, Seattle Aquarium, National Immigration Project (NIPNLG), National Immigration Law Center, Make the Road NY, People’s Action, SEIU, The Green New Deal Network, the National Immigrant Justice Center, OneAmerica, and MoveOn.

“Climate change is here. The next flood or fire can hit anytime. We need to prepare. In 2022, hundreds of thousands of Americans are already reeling from tornadoes in Kentucky and fires in Colorado. Families need their homes, schools, hospitals rebuilt. The repairs are being carried out by resilience workers. The Resilience Workforce makes recovery possible, but works without protection,” said Saket Soni, the Director of Resilience Force. “Rep. Jayapal’s Climate Resilience Workforce Act is a historic first of recognition for this workforce in Congress. It will attach labor standards to billions of aid dollars, build good jobs for the formerly incarcerated, and put immigrant resilience workers on path to citizenship. Preparing the workforce that powers our recovery is critical to climate preparation, and Rep. Jayapal is leading the way.”

“While the country still awaits strong federal climate legislation that will help us avoid the most egregious aspects of climate change, 350 Seattle is pleased to see the introduction of the Climate Resilience Workforce Act,” said 350 Seattle. “This legislation will help our country begin to build a skilled and equitable climate resilience workforce.”

“The people, salmon, and orcas of Puget Sound are already experiencing the negative effects of climate change. We must do all we can to adapt to climate change while we work to mitigate it,” said the Puget Sound Partnership. “This bill will jump-start work to help our human communities adjust to a changing world by creating living-wage jobs and training programs that center equity and climate justice and respond to the needs of humans and our environment.”

“There is no climate justice without economic justice. While we know that the transition to a new green economy will create millions of jobs, it will take bold action from Congress to ensure that Black, Indigenous, and people of color benefits from that transition,” said the Gulf Coast Center for Law & Policy. “The Climate Resilience Workforce Act will help put us on a path toward training and employing a new generation of workers with equity as a guiding principle.”

“Climate change poses acute risks for coastal and overburdened communities in addition to vulnerable ecosystems and wildlife,” said Robert W. Davidson, President and CEO, Seattle Aquarium. “We are grateful for Representative Jayapal’s leadership on this Act, which centers racial and social equity while advancing climate resilience.”

The legislation is co-sponsored by U.S. Representatives Nanette Diaz Barragán (CA-44), Karen Bass (CA-37), Earl Blumenauer (OR-03), Jamaal Bowman Ed.D (NY-16), Cori Bush (MO-01), André Carson (IN-07), Yvette D. Clarke (NY-09), Emanuel Cleaver, II (MO-05), Gerald E. Connolly (VA-11), Veronica Escobar (TX-16), Jesús “Chuy” García (IL-04), Raúl M. Grijalva (AZ-03), Jared Huffman (CA-02), Henry C. “Hank” Johnson, Jr. (GA-04), Mondaire Jones (NY-17), Barbara Lee (CA-13), Andy Levin (MI-09), Carolyn B. Maloney (NY-12), Jerrold Nadler (NY-10), Grace F. Napolitano (CA-32), Marie Newman (IL-03), Eleanor Holmes Norton (DC-At Large), Alexandria Ocasio-Cortez (NY-14), Ayanna Pressley (MA-07), Jan Schakowsky (IL-09), Adam Smith (WA-09), Thomas R. Suozzi (NY-03), Mark Takano (CA-41), Rashida Tlaib (MI-13), and Bonnie Watson Coleman (NJ-12). 

A copy of the legislation is available here

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