Washington — OSHA could publish a notice of proposed rulemaking for its standard on protecting workers from heat as soon as Sept. 30, acting Labor Secretary Julie Su said.

“It’s a very important effort because heat has become an occupational hazard,” Su said in response to a question from Rep. Suzanne Bonamici (D-OR) during a May 1 House Education and the Workforce Committee hearing. “It’s something that causes people to lose their lives on the job when there are relatively commonsense measures that could be taken to prevent that from happening.”

The proposal has been undergoing a Small Business Advocacy Review since August.

Child labor

During the hearing, Su also fielded questions about an increase in child labor law violations. She said the Department of Labor assessed a record number of penalties in fiscal year 2023 and is leading an interagency task force on child labor. 

“We try to identify these cases and hold employers accountable who engage in these practices in such blatant disregard for the law,” Su said to Rep. Ilhan Omar (D-MN). “The task force continues to work together to identify gaps and to try to make sure that we’re putting a stop to this practice.”

With some states moving to roll back child labor protections, Su noted during an April House subcommittee hearing on the FY 2025 budget request for DOL that federal law still applies in every state.

“The federal law is a floor,” Su said. “We make sure the Department of Labor enforces that floor.”

DOL rule on independent contractors

Su also was asked about DOL’s rule on determining whether a worker is an employee or an independent contractor. The rule went into effect on March 11.

“The goal of the rule is, under the Fair Labor Standards Act, employees are entitled to a host of protections, minimum wage, overtime and others,” Su said in response to a question from Rep. Lisa McClain (R-MI). “The definition of who is an employee is important because independent contractors don’t have those protections and employees do.”

Rep. Virginia Foxx (R-NC), who chairs the committee, said Su serving as acting labor secretary without confirmation for 417 consecutive days is “unacceptable.”

“[Confirmation] is something [the Senate has] rightly not seen fit to do,” Foxx said. “You’re the longest serving acting secretary since before the Civil War – a record that was best left unbroken.”

Su has led DOL in an acting capacity since March 2023 and can do so indefinitely, according to a Government Accountability Office report released in September. The Federal Vacancies Reform Act of 1998 states that a deputy labor secretary can act as secretary “until a successor is appointed.”

Rep. Kevin Kiley (R-CA) has introduced a bill (H.R. 4957) that would limit the tenure of an acting secretary to seven months (210 days) from when a vacancy occurs or as long as a nomination is pending.

The House Education and the Workforce Committee approved that bill with a 23-19 vote Sept. 14, but a full House vote had yet to be conducted as of press time.