Several progressive groups are urging financial regulators to finish the Dodd-Frank executive compensation rule, which would give the Federal Deposit Insurance Corp. the ability to claw back the compensation of some failed-bank executives — a growing priority for the Biden administration.
Legal analysis refutes claims that climate-risk rulemaking from the Commodity Futures Trading Commission would violate major questions doctrine
WASHINGTON, DC — Today, Governing for Impact (GFI) published a legal analysis defending the Commodity Futures Trading Commission’s (CFTC) authority to address climate-related financial risk. The CFTC is one of several regulatory agencies taking up President Biden’s call to incorporate the impacts of climate change into its rulemakings – and while the agency has yet to issue any new initiatives, opponents are already arguing that new rules on climate risk would violate the major questions doctrine. In its memo, GFI rebuts these claims.
“Congress has charged the CFTC with safeguarding the stability of derivatives markets, including from the risks posed by a warming planet,” said Rachael Klarman, Executive Director at GFI. “Our analysis shows that incorporating climate risk considerations into future rulemaking efforts would not implicate the major questions doctrine. We hope this insight encourages the agency to continue pursuing prudent, lawful steps to limit financial risk amid our rapidly-changing climate.”
The CFTC is responsible for regulating U.S. derivatives markets. In June 2022, the CFTC released a Request for Information (RFI) to seek public comment on all aspects of climate-related financial risk. While the agency has yet to issue any climate rule, critics – including Republicans attorneys general from 21 states – argue that any action to address climate-related risk would violate the major questions doctrine. The major questions doctrine was recently articulated in the Supreme Court’s 2022 decision West Virginia v. EPA, and has since been used to challenge numerous administration actions, including student debt relief.
In its analysis, GFI finds that critics of potential CTFC action have either misconstrued the major questions doctrine or applied it without rigor. The attorneys general inaccurately measure “economic significance” under the MQD, for example, and incorrectly claim that Congress has weighed in on the question of CTFC climate regulation. Ultimately, GFI’s analysis shows that taking action to ensure the safety of financial markets amidst a changing climate, in addition to being a prudent step, is well within the agency’s authority.
To read the full CTFC memo, please see here. For GFI’s comprehensive analysis of the major questions doctrine, please see here.
About Governing for Impact
Governing for Impact (GFI) is a regulatory policy organization dedicated to ensuring the federal government works for working Americans, not corporate lobbyists. The policies we design and the legal insights we develop help increase opportunity for those not historically represented in regulatory policy implementation work: working people. For additional information about GFI, please visit https://governingforimpact.org/
Politico’s Morning Money blurbed GFI’s new memo, which rebuts suggestions that the Major Questions Doctrine will apply to any actions that follow from the CFTC’s climate risk RFI.
More than a dozen advocacy groups—including Governing for Impact and the Center for Democracy & Technology—are calling on OSHA to address with rulemaking the use of electronic surveillance and algorithmic management in the workplace.
As companies use tech to push workers and limit organizing power, groups outline executive actions Biden can take in emerging frontier for labor rights
WASHINGTON, DC — Today, Governing for Impact (GFI), the Center for Democracy & Technology (CDT), and 19 organizations urged the Biden administration to take action on an emerging front in the labor movement: electronic workplace surveillance. Employers across the American economy are increasingly using electronic surveillance and algorithmic management to track and monitor their employees – with serious impacts on worker safety and health. Workforce surveillance has been shown to harm workers’ mental and physical wellbeing, hinder their ability to organize, and limit their access to rights of employment.
“As President Biden’s new labor secretary nominee has herself noted, technology can seriously impact worker safety and power,” said Rachael Klarman, Executive Director at GFI. “The Biden administration must use its existing authority to better regulate surveillance tech and protect American workers.”
”Employers using new surveillance and automated management techniques present a clear and present danger to the health and safety of workers across the country,” said Matt Scherer, Senior Policy Counsel for Workers’ Rights and Technology at CDT. “These memoranda lay out why the key federal agencies charged with ensuring occupational safety and health can and should take concrete steps to address the threats that ESAM poses to workers.”
“Can you imagine being afraid to go to the bathroom because you are afraid of being spied on and punished for being 20 seconds over your break time? That is the impact of Amazon’s surveillance on workers,” said Khali Jama, an Amazon warehouse worker in Minnesota supported by the Awood Center (an Athena Coalition member organization). “It is designed to make us stressed and afraid, preventing us from making sure our basic needs on the job are met. My colleagues and I have been organizing for years for more dignity and safety on the job, and we call on OSHA to fulfill its mandate to help us do that.”
The emerging threat of workplace surveillance technologies is already being felt by workers across the country. Amazon workers suffer serious injuries at twice the rate of other warehouse workers, and Washington’s occupational safety and health agency issued a citation stating that there was “a direct connection between Amazon’s employee monitoring and discipline systems and workplace musculoskeletal disorders (MSDs).” Tesla is using these technologies to surveil employees and quash worker organizing efforts – a potential violation of federal labor law. And McDonald’s is using technology to control its franchisees’ cashier employees while claiming it is not liable to those workers under employment or labor law.
In a series of memos directed to the U.S. Department of Labor, the U.S. Department of Health and Human Services, and the White House Domestic Policy Council, GFI, CDT, and 19 organizations detailed a slate of executive actions federal agencies can take to protect workers from the health and safety harms of surveillance tech. Specifically, the groups are calling for:
The Occupational Safety and Health Administration (OSHA) to develop a workplace standard to regulate workplace surveillance technologies based on its existing statutory authority to regulate hazards to workers’ physical safety and mental health;
OSHA to incorporate workplace monitoring in certain existing guidance on workplace injury prevention and issue new guidance that comprehensively identifies workplace injury risks and solutions in warehousing; and
The National Institute for Occupational Safety and Health (NIOSH) to fund new research into the effects of workplace surveillance technologies on workers’ physical and mental health, including its impact on job strain, industrial accidents, and workplace injuries.
To read the groups’ letter to federal agencies, please see here.
About Governing for Impact
GFI is a regulatory policy organization dedicated to ensuring the federal government works for working Americans, not corporate lobbyists. The policies we design and the legal insights we develop help increase opportunity for those not historically represented in regulatory policy implementation work: working people. For additional information about GFI, please visit https://governingforimpact.org/.
About Center for Democracy & Technology
CDT is a 28-year-old 501(c)3 nonpartisan nonprofit organization that fights to put democracy and human rights at the center of the digital revolution. It works to promote democratic values by shaping technology policy and architecture, with a focus on equity and justice.