2017: Fitzpatrick Voted To Disapprove A Labor Department Rule Defining
The Occupations That States Can Require A Drug Test As A Condition For
Unemployment Benefits. In February 2017, Fitzpatrick voted for
disapproving a DOL rule related to drug-testing and unemployment
benefits via the Congressional Review Act. According to Congressional
Quarterly, "This resolution disapproves the rule issued by the Labor
Department on Aug. 1, 2016, that defines the occupations for which
states can require individuals applying for unemployment benefits to
undergo drug testing (the rule formally titled 'Federal-State
Unemployment Compensation Program; Middle Class Tax Relief and Job
Creation Act of 2012 Provision on Establishing Appropriate Occupations
for Drug Testing of Unemployment Compensation Applicants'). The measure
provides that the rule would have no force or effect." The vote was on
the resolution. The House adopted the legislation by a vote of 236 to
189. President Trump later signed the bill into law. [House Vote 97,
2/15/17; Congressional
Quarterly,
2/10/17;
Congressional Actions, H. J. Res.
42]
2012 Legislation Allowed The Labor Department To Create A Rule
Allowing States To Require Drug Testing For Unemployment Benefits
For Persons Only If Their "Suitable Work" Normally Conducts Drug
Tests, Or If The Person Lost Their Most Recent Job Because Of A
Failed Drug Test. According to Congressional Quarterly, "The 2012
Middle Class Tax Relief and Job Creation Act (PL 112-96) permitted
states to conduct drug testing on individuals applying for
unemployment benefits if the individual's only 'suitable work' is an
occupation where drug testing is regularly conducted, or if the
applicant was terminated from his or her most recent job because of
the unlawful use of controlled substances. In such cases, states
could deny unemployment benefits to applicants who test positive for
drug use. The 2012 law allowed the Labor Department to issue
regulations determining those occupations that regularly conduct
drug testing. The department initiated such a rule-making in October
2014 and in August 2016 issued a final rule that became effective
Sept. 30. Under the final rule, occupations that regularly test for
drugs are defined as those 'specifically identified in a State or
Federal law as requiring an employee to be tested for controlled
substances,' including any new laws that are enacted (the rule as
originally proposed would have applied only to those state and
federal laws requiring testing that were in effect at that time)."
[Congressional Quarterly,
2/10/17]
The Law Also Allowed For A State To Deny Benefits If The Person
Failed The Drug Test. According to the National Employment Law
Project, "Under the Middle Class Tax Relief and Job Creation Act of
2012, however, Congress amended section 303 of the Social Security
Act to permit states to test UI applicants for drugs if: The
applicant was discharged for unlawful use of controlled substances,
or The applicant is only available for suitable work in an
occupation that regularly conducts drug testing (as determined under
regulations issued by the Secretary of Labor). The law also
permitted states to deny benefits to an applicant who tests positive
for drugs under either of these circumstances." [National
Employment Law Project,
2/17]
The Occupations Covered By The Rule Included Ones Already Where
Drug Testing Was Required By State Or Federal Law, Ones That Require
The Person To Carry A Gun, Drive Passenger Vehicles, Aviation Flight
Crewmembers, Air Traffic Controllers And Railroad Operators.
According to the National Employment Law Project, "The Department of
Labor published a notice of proposed rulemaking on October 8, 2014,
and final regulations identifying occupations that regularly conduct
drug testing became effective on August 1, 2016. The final
regulation defined 'occupation' as a position or class of positions
that are required, or may be required in the future, by state or
federal law to be drug tested. More specifically, pursuant to the
Labor Department's regulations, occupations for which state UI
agencies can conduct drug testing include: Occupations where testing
is required by state or federal law, Occupations that require
carrying a firearm, Motor vehicle operators carrying passengers,
Aviation flight crewmembers and air traffic controllers, and
Railroad operating crews." [National Employment Law Project,
2/17]
By Disapproving The Rule, It Is Possible That Republicans Will
Then Attempt To Pass A Law Simply Allowing States To Drug Test For
Unemployment Benefits At-Will. According to the National
Employment Law Project, "Congressional Republicans, unhappy with the
compromise they agreed to in 2012, have criticized the Labor
Department regulations since they were proposed, claiming they were
too narrowly drawn even though they closely tracked the legislation.
The House of Representatives is now planning to invoke the
Congressional Review Act to invalidate these regulations; and
presumably, proponents of drug testing are counting on passage of a
bill introduced in the 114th Congress by Rep. Kevin Brady (R-TX)
that would effectively allow states to drug test all jobless workers
filing for unemployment insurance. This bill, which we expect will
be reintroduced shortly, would allow states to define occupations
that "regularly" drug test to include all occupations where testing
(including pre-employment testing) is permitted. If passed, this
bill would open the floodgates for states to arbitrarily and
unconstitutionally drug test its citizens solely because they are
applying for UI benefits." [National Employment Law Project,
2/17]
National Employment Law Project: "Requiring A Urine Sample From A
Worker Without A Job Only Because She Applies For UI Allows State
Governments To Legitimize An Ugly Stereotype." According to the
National Employment Law Project, "Requiring a urine sample from a
worker without a job only because she applies for UI allows state
governments to legitimize an ugly stereotype that, among other
things, will be detrimental to the reemployment efforts of the
unemployed. Scapegoating those who need, and are entitled to depend
on, basic social insurance programs is inconsistent with the UI
program's purpose and history. It is insulting to millions of
Americans who are shouldering the greatest burdens of job loss and
struggling to get back on the economic ladder." [National
Employment Law Project,
2/17]
Supporters Of The Rule Believe That Broadly Requiring Drug Testing
For Unemployment Is Unconstitutional. According to Congressional
Quarterly, "Opponents of the resolution, primarily Democrats, say
that allowing states to broadly require drug testing for
unemployment benefits is an unconstitutional practice that
unnecessarily punishes workers who have lost their jobs and need
support while they seek new work. They argue that it was not the
intent of Congress to cover more of the workforce than those
occupations for which drug testing is specifically required under
state or federal law, and that the final rule provided flexibility
by including new laws as they are enacted." [Congressional
Quarterly,
2/10/17]
Rule Opponents Claim That The Final Rule Was Too Limiting In The
Number Of Allowable Industries To Drug Test. According to
Congressional Quarterly, "Supporters of the resolution to disapprove
the rule, primarily Republicans, say the Labor Department's
definition of occupations where drug testing may be conducted is too
narrow and unnecessarily limits a state's ability to require drug
testing as allowed by the 2012 law. They say the public interest is
better served by allowing states to implement broader
interpretations of when drug testing should be regularly conducted,
as the states seek to help their residents find new jobs and improve
their readiness to return to work." [Congressional Quarterly,
2/10/17]
2023: Fitzpatrick Voted To Extend The Length Of Time That States Could
Recover Fraudulent Pandemic-Related Unemployment Insurance Payments And
Removing $2 Billion From The Labor Department That Was Provided For
Pandemic-Related Unemployment Compensation. In May 2023, according to
Congressional Quarterly, Fitzpatrick voted for the Protecting Taxpayers
and Victims of Unemployment Fraud Act, which would "extend the length of
time that states have to recover fraudulent COVID-19 and regular
unemployment insurance benefit payments and allow states to retain
certain percentages of recovered overpayments to use for UI program
integrity initiatives. Specifically, the bill would extend from five to
10 years the statute of limitations for criminal charges or civil
enforcement actions alleging that an individual engaged in UI benefit
fraud. It would extend, from three to 10 years after a payment is made,
the amount of time states have to recover UI overpayments made due to
fraud under pandemic unemployment assistance programs, the mixed earner
unemployment benefit program established during the pandemic, extended
UI benefits during the pandemic, and the first week of regular benefits
that were fully federally-funded during the pandemic. It would allow
states to retain 25 percent of any such recovered funds and require
states to use such funds for certain UI program integrity activities,
including hiring fraud investigators and prosecutors and modernizing
unemployment compensation systems. Beginning two years after enactment,
it would allow states to retain five percent of any recovered
overpayments of regular and extended unemployment insurance benefits,
unless the overpayment was caused by a state agency's error, to be used
for UI program integrity and administration costs, including deterring,
detecting and preventing improper payments; payments to the Treasury
Department on a state loan from the unemployment trust fund; and
modernizing state UI technology infrastructure. It would establish
requirements for states to be eligible for retention of such funds,
including that they use a system for crossmatching UI claimants, use a
national new hires directory to identify individuals who may have become
employed, and take actions to prevent payments to incarcerated and
deceased individuals. It would also reinstate and extend through 2030
certain flexibility for states to hire temporary staff to identify and
prosecute fraudulent pandemic UI benefits. As an offset, the bill would
repeal a provision in the March 2020 coronavirus response law (PL
116-136) that provided $2 billion for the Labor Department to detect
and prevent fraud, promote equitable access, and ensure timely payment
with respect to unemployment compensation programs." The vote was on
passage. The House passed the bill by a vote of 230 to 200, thus the
bill was sent to the Senate. [House Vote 211,
5/11/23; Congressional
Quarterly, 5/11/23;
Congressional Actions, H.R.
1163]
The Bill Would Rescind Unspent Pandemic-Era Funding That Was Given
To The Labor Department In An Effort To Address Unemployment
Insurance Fraud. According to Congressional Quarterly, "On a
mostly party-line vote of 230-200, the GOP-controlled House passed a
bill Thursday that would repeal unspent pandemic-era funds
appropriated to the Labor Department for efforts to crack down on
unemployment insurance fraud." [Congressional Quarterly,
5/12/23]
The Bill Would Rescind $400 Million In Unobligated Funds, Shift
The Money To State For Unemployment Insurance "Program Integrity"
Activities And Extend The Time To Recoup Overpayments To 10 Years.
According to Congressional Quarterly, "The bill would take back the
$400 million in unobligated balances in that program and give it to
the states for their own unemployment insurance 'program integrity'
activities, and extend the time states have to recoup overpayments
to 10 years." [Congressional Quarterly,
5/12/23]
The Congressional Budget Office Estimated That The Bill Would
Decrease Deficits By A Net $373 Million Over 10 Years. According
to Congressional Quarterly, "The Congressional Budget Office
estimates the measure (HR 1163), approved by the Ways and Means
Committee in February, would lower deficits by a net $373 million
over a decade. The White House threatened to veto the measure,
saying it could cripple efforts to fight fraud and identify theft."
[Congressional Quarterly,
5/12/23]
The Bill Would Extend The Statute Of Limitations To Address
Overpayment Of Pandemic-Related Unemployment Benefits And Authorize
States To Keep Some Funds That Were Recovered. According to
Congressional Quarterly, "The bill would extend the statute of
limitations for seeking overpayment of unemployment benefits tied to
the pandemic and allow states to keep a portion of funds that are
recovered from overpayments or fraudulent payments." [Congressional
Quarterly, 5/10/23]
The Biden Administration Threatened To Veto The Bill, Arguing It
Would Hinder Efforts To Combat Fraud By Rescinding $2 Billion In
Labor Funding To Administer Unemployment Benefits. According to
Congressional Quarterly, "The Biden administration issued a veto
threat Monday for the bill, arguing it would undermine efforts to
fight fraud by revoking $2 billion in Labor Department funding to
administer unemployment benefits programs." [Congressional
Quarterly, 5/10/23]
2023: Fitzpatrick Effectively Voted For The Protecting Taxpayers And
Victims Of Unemployment Fraud Act. In May 2023, according to
Congressional Quarterly, Fitzpatrick voted against the "motion to
recommit the bill to the House Ways and Means Committee." The vote was
on a motion to recommit. The House rejected the motion by a vote of 221
to 210, thus the House voted on passage subsequently. [House Vote 210,
5/11/23; Congressional
Quarterly, 5/11/23;
Congressional Actions, H.R.
1163]
2023: Fitzpatrick Effectively Voted For The Protecting Taxpayers And
Victims Of Unemployment Fraud Act. In May 2023, according to
Congressional Quarterly, Fitzpatrick voted for the "adoption of the rule
(H Res 383) that would that would provide for floor consideration of
[...] the Protecting Taxpayers and Victims of Unemployment Fraud Act
(HR 1163). The rule would provide for up to five hours of debate on the
Secure the Border Act and up to one hour of debate on the Protecting
Taxpayers and Victims of Unemployment Fraud Act. It would provide for
automatic adoption of a Smith, R-Mo., manager's amendment to HR 1163
that would direct the Treasury Department to use unobligated funds
provided by previous pandemic relief legislation for administration and
fraud prevention of unemployment programs to offset any loss in the
amount of funds deposited in state unemployment funds as a result of the
bill, subject to appropriations." The vote was on the adoption of the
rule. The House adopted the rule by a vote of 215 to 209. [House Vote
207, 5/10/23;
Congressional Quarterly,
5/10/23; Congressional Actions,
H.Res.
383;
Congressional Actions, H.R.
1163]
2023: Fitzpatrick Effectively Voted For The Protecting Taxpayers And
Victims Of Unemployment Fraud Act. In May 2023, according to
Congressional Quarterly, Fitzpatrick voted for the "motion to order the
previous question (thus ending debate and possibility of amendment) on
the rule (H Res 383) that would that would provide for floor
consideration of [...] the Protecting Taxpayers and Victims of
Unemployment Fraud Act (HR 1163). The rule would provide for up to five
hours of debate on the Secure the Border Act and up to one hour of
debate on the Protecting Taxpayers and Victims of Unemployment Fraud
Act. It would provide for automatic adoption of a Smith, R-Mo.,
manager's amendment to HR 1163 that would direct the Treasury Department
to use unobligated funds provided by previous pandemic relief
legislation for administration and fraud prevention of unemployment
programs to offset any loss in the amount of funds deposited in state
unemployment funds as a result of the bill, subject to appropriations."
The vote was on a motion to order the previous question. The House
agreed to the motion by a vote of 215 to 211. [House Vote 205,
5/10/23; Congressional
Quarterly, 5/10/23;
Congressional Actions, H.Res.
383;
Congressional Actions, H.R.
1163]