2010 Employment and Labor Law Legislation 

With the passage of the Health Reform legislation in March and the economy stabilizing, talk is now turning to some of the employment legislation that has languished in committee since the start of this Congressional session. Many of the employment and labor bills introduced in 2009 were sidelined because of the two all-consuming legislative initiatives of Health Care Reform and the financial stimulus package.

Even though the Democrats hold the White House and also strong majorities in both Houses of Congress, so far pro-employee legislation remains “in committee,” going nowhere. That can change at any time, of course.

What follows is a summary of major bills that are pending in 2010.

ASE will track these pieces of legislation throughout the year and provide regular updates through the ASE magazine (everythingpeople.™), our weekly e-newsletter (everythingpeople.™ This Week!),and this page of the ASE website:

 

The Employee Free Choice Act (EFCA) - This highly controversial piece of legislation would radically change labor law if passed. As of this update (June 30, 2010) the legislation continues to wait for action by the  Senate Democratic leadership that would find a compromise sufficient to obtain the sixty (60) Senate votes it needs to avoid a filibuster and move the bill forward.

If passed as proposed, EFCA’s first radical change would be to enable a union to obtain recognition without a secret ballot election. EFCA would make organizing a stealth process that could result in a union being organized without the employer knowing or being able to speak to its side of the issue. By the same process, many workers (as many as 50% of the workforce less one) could become union members without their even knowing about it, let alone being asked if they wish to join. 

The second radical change would be the institution of government-controlled collective bargaining. EFCA as written would require bargaining to begin, if requested, within ten days of recognition. If no agreement is reached within ninety days of the start of bargaining, a mediator can be called in. If after thirty days of mediation there is still no collective bargaining agreement, an arbitration board will be formed, made up of arbitrators assigned by the government, who will “award” a collective bargaining agreement. This agreement will be imposed on both sides for a period of two years.

Some constitutional scholars see a problem with this feature right away, recognizing that it could be a governmental “taking” without due process, and therefore unconstitutional. In any case, both employer and employees would be subject to an agreement that neither party may want.

The third radical change to labor law comes in the name of strengthening enforcement of the labor laws. EFCA introduces penalties for the employer only, if unfair labor practices are determined to have occurred.

Currently Senators are discussing compromises that would get the bill past the threat of Senate filibuster.

A compromise bill, known informally as “EFCA-Lite,” proposes to eliminate the card check provision. But it would replace it with an expedited election process that would give employers only ten (10) days to respond to a union organizing drive that achieves 30% interest as evidenced by signed cards.  This version of EFCA is further understood to allow union access to a company’s property and a ban on employer “captive” audience meetings. It is not immediately known if the binding arbitration provision of EFCA is part of this revised bill. The increased employer penalties for alleged unfair labor practices do remain, however.

Opponents of EFCA remain concerned about the fact that if EFCA-Lite passes the Senate, it can subsequently be amended by the House,or even in conference later on. One Democratic Senator’s legislative aide was quoted stating that the EFCA legislation will need to be rammed through in a “quick” vote before opposition forces can muster a defense. 

ASE continues to oppose EFCA in any form and recommends its members contact their representatives in Congress to express opposition to this bill. Employers are encouraged to contact their legislators and continue to push against this unfair pro-union legislation.

As of June 30, 2010, this bill still sits in the Senate waiting for its supporters to find the political will, and votes under a compromise, to get it out of the Senate. Vice President Joe Biden continues to promise its passage to big labor:

In terms of the NLRB, we’re going to get it done. In the fight for EFCA, we’ve got to sit down and figure out where we go from here…. I think we’re going to get it done.
                                       -Vice President Joe Biden 3/1/2010 at the AFL-CIO’s Winter Meeting

 

 

NLRB Changes Support EFCA Goals

In April, 2010 the President made the “recess appointments” of two highly pro-labor NLRB board members. The appointments of Craig Becker and Mark Pearce to the National Labor Relations Board dramatically changes the political orientation of the Board. Some have predicted it will actually enable implementation of some provisions of EFCA without new legislation but by Board fiat or new regulations. Recess appointments do not require the approval of the Senate, although those appointed only sit until the current session of Congress adjourns.

On June 22, 2010, the Senate confirmed two of the three persons that are sitting in recess appointments. Mark Pearce and Brian Hayes. Craig Becker was passed over by the Senate and will remain a recess appointment.

 

 

RESPECT Act – This is another pro-labor organizing law that would expand the ranks of workers who could be organized into a union. Currently, supervisory employees are excluded as management under the National Labor Relations Act. The proposed Re-employment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT) would allow front-line supervisors and team leaders to be treated as rank-and-file workers for the purpose of union membership. The RESPECT Act changes the definition of “supervisor,” from a position that spends any time assigning and directing other employees to a position having to exercise authority over other workers “for a majority of the individual’s worktime.” This would remove many first-line supervisory and leader positions from the ranks of management and define them as workers for union organizing purposes, thus permitting them to go on strike.

It would also create a level of “supervisor” that, if organized by a union, would likely divide the loyalty of first line supervision from its traditional role as management representatives.

The now firmly pro-labor NLRB may also attack the core issue of management union organizing, giving the intent of the RESPECT Act legislation life through its power to overturn the arbitration case that made the RESPECT act necessary in labor’s eyes.

If EFCA were to pass, this act is given a very good chance of passage as well.

As of June 30, 2010 this legislation still has not been formally introduced. With its new configuration, the NLRB will be looking for cases to overturn its own previous rulings and strengthen their ability to organize broader groups of workers.

 

 

The Worker Freedom Act- In a related piece of state legislation, the Michigan Legislature introduced the “Worker Freedom” bill (HB 4467) in October 2009. Ostensibly, this legislation would protect Michigan workers from having to attend “captive audience” meetings called by their employers, by prohibiting mandatory employee meetings put on by employers that “expose their political or religious beliefs – including their opinion on unions.” It further bans employers from penalizing employees for reporting violation of the proposed law. 

 

 

FMLA – In addition to the military family medical leave provisions passed in 2009, a long-held desire of FMLA proponents is a further expansion of the Family and Medical Leave Act that, as proposed, would lower the minimum number of an organization’s employees from the present level of 50 to 25 for FMLA coverage. The law also eliminates the 1,250-hour rule for eligibility.

Little has been seen or heard of this proposal so far, but it is known that the Obama administration favors its passage.

FMLA - New Bill

In 2009 a new Family and Medical Leave bill, H.R. 1723, was introduced in the U.S. House of Representatives. The bill would create a family and medical leave insurance program to provide paid leave for up to 12 weeks. It, too, would lower the employee population threshold for employers that must participate in the program.

This legislation will establish a family and medical leave insurance program at the federal and state levels and require employers who are bound by the Family Medical Leave Act (FMLA) to join the program or establish voluntary plans. For purposes of establishing who must pay into the fund, the bill reduces the employee population threshold from 50 down to 20.

The fund’s intent is to provide employees with twelve weeks of paid family and medical leave. The fund, established and administered by the Secretary of Labor, would provide benefits for employees taking leave for any of the following reasons:

• The birth or adoption of a child
• To care for a family member with a serious health condition
• A serious health condition of one’s own
• Any qualifying emergency arising from the fact that a spouse, child, or parent of the employee is on active military duty
• To care for a family member who is a covered service member

Under the benefit proposal, most employees would contribute 0.2% of their annual earnings, and employers would match employee payments. This legislation will only put additional burdens on small businesses that are already struggling to make ends meet.

As of June, 2010 this bill remains in Committee.

 

 

Healthy Families Act – This legislation would provide full time employees seven paid sick days per year. It would apply to employers of 15 or more employees.

On June 1, 2009 Representative Rosa DeLauro (D-CT) introduced the Healthy Families Act.  After an initial review, it appears this version differs from the bills previously considered in the 110^th Congress.  Here are a few of the differences:

• Domestic Violence – Provisions added allowing victims of domestic violence to use leave provided under the Act for needs related to domestic violence (such as court appearances, counseling, etc.);
• Accrual – Changed the way that workers accrue leave under the Act. Rather than giving full-time workers 7 paid sick days and part-time workers a pro-rata share of 7 days, the Act now uses an accrual system where workers earn one hour of leave for every 30 hours worked, up to a maximum of 56 hours (7 days). 
• Lock-In Provision – The new version does not appear to contain the “lock in” provision that would prohibit employers from making modifications to their leave benefits upon enactment.
• Effective Date – The Act is effective 6 months after regulations are issued.
• Cash Out – The bill specifically states that employees are not entitled to “reimbursement” for unused paid sick leave upon separation from the employer.
• (Update information from National Coalition to Protect Family Leave [NCPFL] 6/1/09) 

In April 2010 the Obama Administration again stated its support for this legislation. As of June, 2010 no further progress has been reported on the progress of this legislation.

 

 

LEGISLATION INTRODUCED TO ADDRESS H1N1 (Swine) FLU VIRUS

Emergency Influenza Containment Act – On  November 3, 2009 George Miller (D. CA) Chair of the House Education and Labor Committee and Rep. Lyn Woosley introduced H.R.3991, which requires employers with 15 or more employees to direct and advise employees coming down with the symptoms of a contagious illness to take up to five (5) days of paid sick leave. As it is currently written, the bill would go into effect fifteen days after passage and would sunset in two (2) years. The paid time off would be mandated only if the employer directed the employee to stay home. It would not cover employees electing their own time off because of illness.

Although apparently designed to address an immediate (at the time) public health emergency, this proposed legislation would enact much of the Healthy Families Act that would provide for seven paid days off per year (see above). Critics point out that it would enact paid time off under the guise of emergency and would later make this law permanent, thus achieving the intent of the Healthy Families Act legislation that sits on the legislative sidelines right now.

It appears this legislation is held up not only because of higher priority legislation but also due to reconsideration of the flu threat at this time.

 

 

Working Families Flexibility Act – One of the more eccentric pieces of time-off legislation being proposed, this bill would give employees the right to request a change to their hours of work, location of work, and work schedule. The employer would be required to give formal consideration to the request by meeting with the employee and responding in writing, in detail, to the request within fourteen days. If the employee does not agree with the decision, he or she may request a formal reconsideration within 14 days and the employer has to respond with additional specific detail. The employee may also file a complaint with the Department of Labor (DOL), and the DOL would then investigate with the power to fine the employer if it found the process or reasoning was lacking.

The Obama administration supports the Healthy Families Act as well as the Working Families Flexibility Act.

At this point this bill is not expected to proceed far in this Congress, but may come up as workforce flexibility issues gain interest in the future.

 

 

Paycheck Fairness Act - With the passage in 2009 of the Lilly Ledbetter Fair Pay Act, the Paycheck Fairness Act is seen as partner legislation aimed at expanding protections and remedies for pay discrimination. This legislation puts the onus on the employer to show that any pay inequality identified is not based on gender but on another factor that is job related. Further, the employer must show that the pay disparity is due to a legitimate business purpose and was applied and used for those reasons.

The Act would allow compensatory and punitive damages that would not be limited even if the pay discrimination that occurred was not intentional. If a class action lawsuit is brought, employees that are made part of it would have to purposely opt out. Currently employees to a class action lawsuit have to opt in to become part of the class action lawsuit.

Lastly, an employer would be in violation of the law if it prohibited employee sharing of wage information, or disciplined an employee for discussing his or her wages. (There is already a Michigan law that prohibits any adverse employment action against an employee who discusses or discloses wages to another employee.)

The U.S. House of Representatives has already passed its version of this bill.

As of June 30, 2010 this legislation has not moved much further. Pay discrimination continues to be an issue for legislators as well as Obama Administration appointees like the new head of OFCCP, Patricia Shiu. Although the OFCCP does not enforce the Equal Pay Act, Shiu is reportedly a champion of gender equity. She will be a deputy assistant secretary to the Labor Secretary, putting her in an influential position regarding this issue.

Earlier this year a government report highlighted what many think is continued pay disparity between men and women. This issue continues to be controversial and misperceived due to the way pay disparity is perceived. The government report looks at pay difference including occupational differences. When removing occupation differences from pay analysis, the pay gap between men and women narrows considerably.

Of the many pieces of legislation that sit in committee, this legislation seems to be best poised to move once Congress gets through the bigger pieces of legislation holding things up.

Late in March 2010, hearings were held by the Senate Health, Education, Labor and Pension Committee. Supporters in the Senate plan on bringing this legislation up soon to have the Senate vote on it. To raise awareness about the wage gap between men and women, April 20, 2010 was declared Fair Pay Day.

 

 

Fair Pay Act - Proponents of pay equity legislation supported the introduction of new legislation by Sen. Harkin (D-IA) and Delegate Holmes-Norton (D-D.C.) that would require employers to use a system of “comparable worth” in setting wages for their employees. Not to be confused with the Paycheck Fairness Act, this other comparable worth bill is called the Fair Pay Act. The National Association of Manufacturers reports that this proposal goes much further than the Paycheck Fairness Act, since it broadens the Equal Pay Act to include more invasive definitions of gender-based discrimination. This bill would require employers to publicly disclose job categories and how much employees in these categories are paid. (H.R. 2151/S. 904).

 

 

Equal Remedies Act – Under current law, compensatory and punitive damages under Title VII and the Americans with Disabilities Act is limited to under $300,000. This proposed law would remove that cap.

This legislation also stands a good chance of passage by the Democrat-controlled House and Senate. The White House is reported to also support this legislation.

As of June 30, 2010 no further action is reported on this legislation.

 

 

Employment Non-discrimination Law – This legislation would extend protective coverage against employment discrimination based on sexual orientation. It would prohibit discrimination based on “actual or perceived sexual orientation” as well as against those whom that individual associates with.

This legislation also has the support of the Obama administration.

ENDA is similar to existing discrimination laws like the Civil Rights Act of 1964 — for example, it prohibits retaliation and would cover companies with 15 or more employees. The bill also includes exemptions for religious organizations in some cases.

The bill was introduced in the U.S. Senate on August 5, 2009.

The bill has been introduced several times in the past, but ENDA may have the numbers on its side this time, with 152 co-sponsors in the House so far, 38 in the Senate, a Democratic majority in Congress and the support of the President.

Although this legislation did not get taken up in 2009, experts say the bill has a chance to become law by the end of 2010.

As of June 30, 2010 no further action is reported on this legislation.

 

 

The Arbitration Fairness Act – This proposed law seeks to roll back employer/employee agreements to arbitrate employment claims. Currently, employers can have employees agree as a condition of employment to arbitrate any employment law claim instead of bringing a lawsuit. The Arbitration Fairness Act would prohibit any pre-dispute arbitration agreement unless it is contained in a collective bargaining agreement. 

As of June 30, 2010 no further action is reported on this legislation.