Before adjourning for a week-long President’s Day recess, members of Congress introduced several bills addressing such issues as the use of an individual’s credit and/or bankruptcy history in employment; OSHA’s Voluntary Protection Program; minimum wage for tipped employees; and OFCCP and NLRB rulemaking. The following briefly discusses the labor and employment bills introduced the week of February 10, 2013:
Rep. Rodney Alexander (R-LA) introduced the Equal Standards in Hiring Americans Act (H.R. 759), a measure that would require the Department of Labor to apply to its own agency a proposed rule issued by the Office of Federal Contract Compliance Programs (OFCCP) governing contractor nondiscrimination and affirmative action requirements for hiring individuals with disabilities. The bill would essentially render the proposed rule ineffective unless the DOL certifies that it is in compliance with the OFCCP rule. In a press release, Rep. Alexander said “This legislation does not prevent DOL from implementing this rule; instead, it simply says that DOL cannot impose this rule on federal contractors unless it first certifies to Congress that each office and division within DOL is in compliance with the rule’s requirements.”
Credit Checks and Financial Discrimination
On February 13, 2013, Rep. Steve Cohen (D-TN) introduced two bills designed to prevent employers from using credit checks and bankruptcy filings in making employment decisions.
The Equal Employment for All Act (H.R. 645) would amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees for the purposes of hiring or making adverse employment decisions. This prohibition would apply even if the employee or applicant consents or otherwise authorizes the employer’s procurement of the consumer credit report for employment purposes. The bill would make exceptions if the job involved national security, FDIC clearance, a supervisory, managerial, professional or executive position at a financial institution; or where a credit check is otherwise required by law.
The same day Rep. Cohen also introduced the Bankruptcy Nondiscrimination Enhancement Act (H.R. 646). This bill would strengthen Section 525(b) of the Bankruptcy Code to prohibit a private employer from considering an employee’s financial status in making employment decisions. Currently, Section 525(b) prohibits employers from firing or discriminating against a debtor or bankrupt individual solely because that person is or was a debtor or bankrupt. Therefore, under existing law, an employer may still take adverse action against an employee or applicant so long as bankruptcy or debt was not the only reason for doing so. The proposed bill would strike the word “solely” from the bankruptcy code and thus prohibit any consideration of an individual’s financial status for employment purposes.
Health & Safety
Reps. Tom Petri (R-WI) and Gene Green (D-TX) introduced legislation that would make the Occupational Safety and Health Administration’s Voluntary Protection Program (VPP) permanent. Specifically, the Voluntary Protection Program Act (H.R. 632) would codify the current program, authorize the grant of funds to enable it to continue, and extend its availability to small businesses.
To participate in the VPP, employers submit applications to OSHA and undergo a stringent safety assessment of their work site and safety and health management programs. If the facility meets the required safety and health standards and is approved to participate in this cooperative program, the employer is exempt from OSHA programmed inspections, investigations and certain paperwork requirements. This exemption does not apply to investigations or inspections resulting from employee complaints, fatalities, catastrophes, or significant toxic spills/releases. OSHA onsite evaluations would be conducted to ensure a high level of protection of employees, however, these onsite visits would not result in enforcement citations. Employers would also be subject to periodic reevaluations for continued participation in the program.
In a press release, Rep. Petri said: “Interactions between OSHA and businesses can often be adversarial—this program takes a different approach. I understand there are times when a heavy hand is needed, but most employers want a safe work environment. VPP represents a balanced and sensible approach to achieving this goal with reasonable oversight.”
The Fairness for High-Skilled Immigrants Act of 2013 (H.R. 633, S. 293) introduced by Rep. Jason Chaffetz (R-UT) and Sen. Mike Lee (R-UT) would, among other things, amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants.
In addition, the STEM Jobs Act of 2013 (S. 303) introduced by Sen. David Vitter (R-LA) would eliminate the diversity immigrant program and instead divert up to 55,000 visas to immigrants who have a doctorate degree in a field of science, technology, engineering or mathematics (STEM degree) from a U.S. doctoral institution of higher education and have taken all doctoral courses in a STEM field while physically present in the U.S.
On February 15, 2013 Rep. Austin Scott (D-GA) introduced a bill (H.R. 795) that seeks to limit the scope of the National Labor Relations Board’s rulemaking ability, as well as its authority to issue complaints and process unfair labor practice charges. Specifically, the Protecting American Jobs Act would limit the Board’s rulemaking authority to those issues concerning the agency’s internal functions and prohibit the Board from promulgating rules that affect the substantive rights of any person, employer, employee, or labor organization.
In addition, the legislation would strike several provisions from the National Labor Relations Act granting the Board certain powers to investigate and adjudicate unfair labor practice claims. For example, the bill would rescind the section empowering the Board to “prevent any person from engaging in any unfair labor practice . . . affecting commerce.” The bill also would strike the provision granting the Board the power “to issue and cause to be served upon such person” an unfair labor practice complaint, as well as NLRA sections authorizing the Board to take testimony and make findings; set aside findings or orders prior to filing record in court; petition the court for enforcement of an order; issue injunctions, among other functions.
Rep. Janice Schakowsky (D-IL) introduced a bill that would extend protections to part-time workers in the areas of employer-provided health insurance, family and medical leave, and pension plans. With regard to health insurance, the Part-Time Worker Bill of Rights Act of 2013 (H.R. 675) would amend the shared responsibility provisions of the Affordable Care Act by requiring large employers to provide health insurance to their part-time as well as full-time employees or pay a penalty. Similarly, the bill would include part-time employees in determining workers who qualify for the ACA’s premium tax credits and cost-sharing reductions. The ACA penalty amount an employer would have to pay under the shared responsibility “pay or play” provisions would be prorated for these part-time employees.
The bill would also eliminate the hours of service requirement for eligibility to take leave under the Family and Medical Leave Act (FMLA). That law would be amended to include the following provision: “The term `eligible employee' means an employee who has been employed, either as a full-time or part-time employee, for at least 12 months by the employer with respect to whom leave is requested . . .”
Finally, the bill would amend ERISA’s participation, vesting, and accrual rules governing pension plans to expand part-time employee eligibility.
Wage & Hour
Rep. Donna Edwards (D-MD) reintroduced a bill that would amend the Fair Labor Standards Act (FLSA) to establish a base minimum wage for tipped employees. The Working for Adequate Gains for Employment in Services (WAGES) Act (H.R. 650) would take effect 90 days after the bill’s enactment, mandating that tipped employees be paid at least $3.75 per hour. This amount would increase to $5.00 per hour one year after enactment. After two years, this base amount would increase to 70 percent of the minimum wage as established under section 6(a)(1) of the FLSA, or $5.50 per hour, whichever amount is greater.
Under the terms of this legislation, the Secretary of Labor would be required to publish any increase in the base amount for tipped employees at least 10 days in advance of any change.