Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

The three National Labor Relations Board members up for reconsideration and two new Board nominees faced pointed questions from the Senate Committee on Health, Education, Labor and Pensions (HELP) on Thursday. Last month, President Obama announced his intent to re-name Mark Gaston Pearce (D) as Chairman of the National Labor Relations Board (NLRB), as well as seat the two Republican nominees, Harry I. Johnson, III and Philip A. Miscimarra, to the agency. In February, the President re-nominated Democrats Sharon Block and Richard Griffin to the Board after the U.S. Court of Appeals for the D.C. Circuit ruled that their January 4, 2012 recess appointments were unconstitutional. The hearing was held the same day the Third Circuit released its decision in NLRB v. New Vista Nursing & Rehabilitation, which reached a similar conclusion. Specifically, the Third Circuit held that the recess appointment of former Board member Craig Becker was invalid because it was not made during an intersession recess, which would invalidate the Block and Griffin appointments as well.

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During an Appropriations Subcommittee hearing held to analyze the Department of Labor’s budget request for fiscal year 2014, Acting Secretary of Labor Seth Harris discussed several agency initiatives and programs that would benefit from the $12.1 billion in discretionary funding. President Obama released his FY 2014 Budget Proposal last Wednesday. The DOL’s portion of the budget would fund, among other activities, enforcement of whistleblower protections and worker misclassification programs, rulemaking, and internal evaluation efforts, said Harris.

Some topics of note discussed during the hearing include the following:

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On March 20, the House Committee on Education and the Workforce will hold a meeting to vote on the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120), a bill seeking to limit National Labor Relations Board activities until at least three members are confirmed by the Senate or until the U.S. Supreme Court weighs in on the legitimacy of President Obama’s recess appointments. This measure is the latest in a series of bills that have been introduced following the U.S. Court of Appeals for the D.C. Circuit’s finding in Noel Canning v. NLRB that the President’s three January 2012 recess appointments to the NLRB were unconstitutional. 

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As a result of the recent federal court decision that President Obama’s three recess appointments to the NLRB were unconstitutional, past and future Board decisions and agency actions are constitutionally suspect and open to judicial challenge, according to lawmakers and panelists during a congressional subcommittee hearing held on Wednesday. The House Subcommittee on Health, Employment, Labor, and Pensions conducted this hearing, entitled: “The Future of the NLRB: What Noel Canning vs. NLRB Means for Workers, Employers, and Unions” to examine the implications of the U.S. Court of Appeals for the D.C. Circuit’s Noel Canning v. NLRB decision.

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The eleventh hour agreement to avoid the precipitous tax hikes and spending cuts widely known as the “fiscal cliff” will still require employers to make some changes to their current practices, and leaves many questions unanswered. Notably, the deal delays – but does not resolve – the matter regarding the “sequestration” of federal funds, which could trigger mass layoffs or furloughs of federal contract employees. The final deal arrived at on January 1, 2013 – the American Taxpayer Relief Act of 2012 (H.R. 8) (pdf) – postpones this possibility an additional two months. The bill does, however, extend certain tax relief measures, while letting others expire. Highlights of the fiscal cliff deal are as follows:

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Last week the House Committee on Oversight and Government Reform released a staff report highlighting rulemaking, decisions, and other actions taken in recent years by the National Labor Relations Board (NLRB or “Board”) that the Committee contends are indicative of the agency’s pro-union bias. Rep. Darrell Issa (R-CA) chairs the Committee. The report – President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate (pdf) – claims that these legislative, regulatory, and internal missteps “compromise the perceived fairness of the NLRB that Congress deemed necessary for its successful operation,” and have created a “rogue agency plagued by systemic problems.” Continue reading this entry at Littler's Labor Relations Counsel.

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Now that the election-generated dust has settled, employers are left wondering how the results will impact their operations in the coming four years. In many respects, not much has changed as result of the 2012 elections. The House of Representatives is still controlled by Republicans, and the Senate by Democrats, albeit by a slightly larger margin. Federal agencies will continue to pursue their agendas with their current political appointees. While a more detailed analysis of the election’s implications can be found here, the following is a brief overview of what employers can expect on the legislative/regulatory front.

Legislation

Given that it was an election year and Republicans held a majority in the House of Representatives, few labor- and employment-related bills were enacted this year, and none that were ground-breaking. Although union and employee-friendly bills could advance during the next legislative term, they will still face expected opposition in the House. Measures that stalled in the 112th Congress such as the Employment Nondiscrimination Act (ENDA), Paycheck Fairness Act, Protecting Older Workers Against Discrimination Act (POWADA), and the Robert C. Byrd Mine and Workplace Safety and Health Act will likely remain stalled in the next session. Still, unless Democrats are able to regain a significant number of seats in the House of Representatives during the 2014 midterm elections, few significant labor and employment bills are expected to be enacted during this time. There has been some speculation, however, that comprehensive immigration reform could be the President’s next legislative priority.

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Updated: November 14, 2012 and November 27, 2012

On Friday, September 28, 2012, the House of Representatives passed the Whistleblower Protection Enhancement Act of 2012 (S. 743), a bill that strengthens whistleblower protections for federal employees. Currently, federal employees may bring whistleblower claims under the Whistleblower Protection Act (WPA). According to the Senate Report (pdf) accompanying S. 743, a number of decisions issued in recent years by the United States Court of Appeals for the Federal Circuit have weakened federal whistleblower protections by, among other things, narrowing the definition of the types of disclosures covered by the WPA, and limiting the remedies available to certain federal employees. To this end, the legislation seeks to accomplish the following:

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After fixing a typographical error in the bill, on Thursday the House of Representatives voted 245-172 in favor of a bill that would prevent agencies from taking any significant regulatory action until the unemployment rate is 6% or lower. The bill had incorrectly referred to “employment” rather than “unemployment” rate. The Regulatory Freeze for Jobs Act of 2012 (H.R. 4078) defines “regulatory action” as “any substantive action by an agency that promulgates or is expected to lead to the promulgation of a final rule or regulation, including a notice of inquiry, an advance notice of proposed rulemaking, and a notice of proposed rulemaking.” A regulatory action deemed “significant” under the bill is one:

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On Wednesday a House Appropriations Subcommittee voted 8 to 6 in favor of advancing a bill (pdf) that would provide fiscal year 2013 funding for the Department of Labor (DOL), the Department of Health and Human Services (HHS), the National Labor Relations Board (NLRB), and other related agencies. This measure contains a number of significant limitations on how these agencies would be entitled to use such funding. Among other restrictions, this funding legislation would curtail the implementation and enforcement of several labor, employment, and healthcare-related regulations and programs.

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On June 14 the Senate Appropriations Committee voted 16-14 in favor of advancing a bill (S. 3295) that would appropriate $158.8 billion to the Departments of Labor (DOL), Health and Human Services (HHS), National Labor Relations Board (NLRB), and related agencies, for fiscal year (FY) 2013. In approving this measure, the panel also voted in favor of an amendment that would prevent the DOL from enforcing its new rule governing H-2B visas for temporary, seasonal nonagricultural workers for the fiscal year. The committee rejected amendments that would have similarly prevented the NLRB from enforcing its decision in Specialty Healthcare, implementing its rule amending representation election procedures, and funding lawsuits against states that have enacted secret ballot election laws.

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On Thursday, May 10, 2012, the House of Representatives approved 247-163 a fiscal year 2013 funding bill (H.R. 5326) for a variety of federal agencies, including the Equal Employment Opportunity Commission (EEOC), that includes a series of amendments that would curtail enforcement of certain labor- and employment-related regulations and programs. Generally, the bill would allocate nearly $367 million to the EEOC for FY 2013, but would prevent any of this funding from being used to implement and enforce the EEOC’s final rule that amends its Age Discrimination in Employment Act (ADEA) regulations to clarify the reasonable factors other than age (RFOA) defense in disparate impact cases.

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Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) have sent requests to the Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) asking them to determine whether the emerging employer practice of requesting job applicants for their social medial login credentials for background check purposes violates federal law. According to Sens. Blumenthal and Schumer, requesting an applicant’s username and password for social media sites such as Facebook is a “disturbing trend” that potentially violates a number of privacy and employment laws.

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On Tuesday members of the House Committee on Education and the Workforce’s Subcommittee on Workforce Protections heard competing testimony about the merits of the Department of Labor’s proposed rule that would extend minimum wage and overtime requirements to many home care workers. This proposal would amend the Fair Labor Standards Act’s (FLSA) companionship and live-in worker regulations to limit the types of duties that render a home caregiver exempt from FLSA requirements, clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services, amend the recordkeeping requirements for live-in domestic workers, and specify that the exemption is limited to care givers employed by the individual, family or household using the services only. While proponents of the rule discussed the need to update the Wage and Hour Division (WHD) regulations to address the needs of this changing industry sector, others criticized the impact the rule would have on the quality and availability of elder home care, challenged the legality of changing the FLSA’s exemption, and questioned the thoroughness of the WHD’s economic analysis of the potential costs involved.

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On February 16, 2012, Republican members of both the House and Senate introduced resolutions (H.J. Res. 103; S.J. Res. 36) formally disapproving of the National Labor Relations Board’s recent final rule that dramatically changes representation election procedures. Rep. Phil Gingrey (R-GA) introduced the resolution in the House with 64 co-sponsors. Sen. Mike Enzi (R-WY), ranking member of the Senate Help, Education, Labor and Pensions (HELP) Committee, introduced a companion resolution with identical language in the Senate with 43 co-sponsors. The text of both measures is as follows:

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Littler Shareholder Stefan Marculewicz was among the panelists testifying on Tuesday before the House Committee on Education and the Workforce about the legal and practical implications of the President’s decision to make recess appointments to the National Labor Relations Board (NLRB or Board) last month. On January 4, 2012, President Obama sat three new members to the NLRB, as well as a new director to lead the Consumer Financial Protection Bureau (CFPB), while the Senate was still holding periodic pro forma sessions. This move has provoked a pointed response from various sectors, inviting a lawsuit from a group of business advocacy groups, a resolution and bill condemning the appointments, and a series of congressional hearings to discuss the legitimacy of the President’s actions.

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As expected, members of the House of Representatives opposed to the President’s recent recess appointments to the National Labor Relations Board have voiced their disapproval legislatively. On January 10, 2012, Rep. Diane Black (R-TN) introduced a resolution formally condemning Obama’s controversial decision to make recess appointments while the Senate was holding periodic pro forma sessions. Although the Department of Justice issued a memorandum opinion (pdf)  sanctioning the President’s authority to make these appointments, Rep. Black claimed that “[t]hese appointments are an affront to the Constitution.” According to Black, “the appointments in question were made while the Senate was in pro forma session and the House had not consented to a Senate adjournment,” as is required under article 1, section 5, clause 4 of the U.S. Constitution.

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The same day the National Labor Relations Board (NLRB) released its final rule that radically alters union representation election procedures, Senator Mike Enzi (R-WY), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, announced his intention to challenge the rule under the Congressional Review Act (CRA). Pursuant to this law, the House or Senate can introduce a joint resolution of disapproval to prevent an agency from enforcing a rule.

According to Enzi:

The rule issued today by the NLRB will allow union bosses to ambush employers with union elections before employers have a fair chance to learn their rights and explain their views to employees, as required by law. I plan to lead the fight against this onerous rule by introducing a resolution of disapproval under the Congressional Review Act. It is disappointing that union advocates believe their best chance to succeed, when it comes to union elections, is to ensure that only one side of the story is able to get out. Instead of using backdoor political maneuvers to boost anemic union memberships and smother our nation’s struggling economy, this Administration should help America regain its strong financial footing.

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When the House of Representatives returns from its August recess it plans to take up a number of bills designed to repeal various labor- and employment-related regulations and agency actions. According to a memorandum issued by House Majority Leader Eric Cantor (R-VA), their regulatory relief agenda will include repeal of specific regulations, as well as fundamental and structural reform of the rule-making system. One of the first bills the House will consider the week of September 12 is the Protecting Jobs From Government Interference Act (H.R. 2587), legislation that would prohibit the National Labor Relations Board from ordering any employer to close, relocate, or transfer its operations under any circumstance. The House Committee on Education and the Workforce narrowly approved this bill on July 21, 2011.

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Tuesday's historic election radically changed the composition of Congress and the balance of power in Washington. While a few election results are still trickling in, Republicans are projected to gain around 60 seats in the House of Representatives, regaining majority control. Democrats will still control the Senate, albeit with a much slimmer margin. Senate Republicans will increase their numbers from 41 to 47 seats, with the outcome of the race in Washington still uncertain. Whether the shift in power in Congress produces compromise or gridlock remains to be seen. What is clear is that this new political landscape will necessarily alter the Obama Administration's labor and employment agenda. For more information on what employers can expect during the remaining weeks of the 111th Congress and the next Congress, continue reading Littler’s ASAP: How Will the Midterm Election Results Impact Labor & Employment Policy?

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On Thursday, all 41 Republican senators signed a letter written by Senators Orrin Hatch (R-UT) and John McCain (R-AZ) urging President Obama not to appoint Craig Becker to be a member of the National Labor Relations Board (NLRB) over the upcoming two-week recess. Expectation has been building that Obama would use this method to seat Becker on the Board over the legislative break.  In a statement, Sen. Hatch claimed:

Craig Becker stands far outside the mainstream of NLRB nominees . . . Given the bipartisan opposition to his nomination, the Administration would be wise to not circumvent the will of the Senate by recess appointing him to the NLRB. There is no place on this powerful board for someone who believes that card check legislation – getting rid of the secret union ballot – can be enacted surreptitiously through regulation.

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Republican State Senator Scott Brown’s victory in Tuesday’s special election to fill the late Ted Kennedy’s seat in the U.S. Senate will no doubt have a substantial impact on the labor and employment law agenda of the Administration and many Congressional Democrats. In defeating Massachusetts Attorney General Martha Coakley, Brown is set to become the 41st Republican member of the Senate, eliminating the Democrat’s filibuster-proof 60-seat supermajority. The loss of the seat held for 46 years could derail a number of President Obama’s legislative priorities, including healthcare reform, the Employee Free Choice Act (EFCA), and immigration overhaul, without significant modification and compromise from both sides of the aisle.

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As expected, Massachusetts Gov. Deval Patrick has named Paul Kirk as the late Sen. Ted Kennedy’s replacement. On Tuesday, the Massachusetts State Senate passed a bill allowing the Governor to name an interim senator until January 19, 2010, when an election for a permanent replacement will be held.

Kennedy’s family allegedly lobbied for Kirk – who is a family friend and former Kennedy staff member – to be selected for the temporary Senate seat. Kirk served as an aide to Sen. Kennedy from 1969 until 1977, and currently is the chairman of the board of directors of the John F. Kennedy Library Foundation. In addition, Kirk is a former chairman of the Democratic National Committee. The close relationship that Kennedy and Kirk shared makes it more likely that Kirk will vote in line with Kennedy’s political beliefs and philosophy.

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On Tuesday the Massachusetts State Senate passed a measure that will allow Democratic Governor Deval Patrick to appoint an interim senator to fill the late Sen. Ted Kennedy’s seat. Although no successor has been named at this point, an article in The New York Times says that Paul G. Kirk Jr., a former Kennedy aide and chairman of the Democratic National Committee, is a leading candidate. Former Massachusetts governor and presidential nominee Michael Dukakis has also been suggested as a potential choice.

Filling Kennedy’s seat with a person with whom he held close ties and/or political philosophy makes it more likely that this replacement will share Kennedy’s views on health care and labor legislation, including the Employee Free Choice Act (EFCA). Such an appointment would once again give the Democrats a 60 vote majority in the Senate which may enable them to ward off a potential filibuster on these contentious bills, if the bills can be reconstructed to overcome the misgivings of moderate and conservative Democrats who have yet to commit to their passage. These 60 votes may be illusory, however, as Sen. Robert Byrd (D-W.Va.) continues to suffer from health issues that have kept him away from the Capitol, unless at least one Republican member can be convinced to side with the Democrats on either EFCA or health care reform.
 

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On Wednesday, Senate Majority Leader Harry Reid (D-Nev.) announced that Sen. Tom Harkin (D-Iowa) will replace the late Sen. Ted Kennedy (D-Mass.) as Chair of the influential Senate Committee on Health, Education, Labor and Pensions (HELP). In a statement, Harkin said of his succession:

Today I am honored to accept the chairmanship of the Senate HELP Committee. To serve in this capacity is to carry on the legacy of Senator Ted Kennedy, who dedicated his life to ensuring that our economy works for all Americans, guaranteeing every child the opportunity to pursue a quality education and, of course, the cause of his life: access to quality, affordable health care for all Americans. In this last endeavor, I expect to work closely with Senator Dodd, who has guided the HELP Committee so capably in reporting The Affordable Health Choice Act, and who will continue to play a leading role as health care legislation moves to the Senate floor.

Harkin is generally viewed as a close friend of Organized Labor. In addition to favoring healthcare reform, Harkin is a chief Senate sponsor of the Employee Free Choice Act (EFCA) (S. 560, H.R. 1470), and has been vocal in his continuing support for this measure and intent to bring it directly to the Senate floor. Harkin has been instrumental in pushing for a so-called “compromise” bill in an effort to woo back the support of Democratic Senators whose enthusiasm for the legislation has waned in recent months.

Harkin is also largely considered employee-friendly. In response to Harkin’s new leadership position, Rep. George Miller (D-Calif.), chairman of the House Committee on Education and Labor, said in a statement:  “Tom is a longtime friend and I can attest to his strong commitment to improve our nation’s schools, workplaces, and the quality of life for all working families."  Earlier this year, Harkin introduced the Fair Pay Act (S. 904, H.R. 2151), a bill that would amend the Fair Labor Standards Act (FLSA) by introducing the concept of equal pay for comparable – not equal – work.

Since legislation vital to Organized Labor – bills dealing with healthcare, labor, and pension issues must go through the HELP Committee to reach the Senate floor – the appointment increases the influence Harkin has with the Union movement, and in turn may well aid getting a compromise on EFCA through as well.
 

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Claiming that his political philosophy is now more in line with Democrats than Republicans, Senator Arlen Specter (R-Pa) recently announced his intent to run for reelection as a Democratic in the 2010 primary. If he were to win as a Democrat in 2010, and Al Franken wins his fight to take Norm Coleman’s Minnesota senate seat as is expected, the Democratic party, with two independents voting with the Democratic caucus, will have the 60 votes needed to stave off any senate filibuster if all vote according to party lines on a particular issue. Although Specter rebuffs the suggestion that he will be an automatic 60th vote for cloture, and claims his position on the Employee Free Choice Act (EFCA) will not change, his decision has necessarily raised concern within the Republican party. In earlier statements, Specter stated his opposition to the EFCA, but support for consideration of revisions to the National Labor Relations Act, specifically the election procedures and some remedial provisions. Even with Specter’s change in party affiliation, enough Democratic Senators oppose cloture on EFCA to make passage unlikely. However, Specter’s position on other aspects of the Democratic labor and employment law agenda may change with Specter’s defection.

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President-elect Obama has made it no secret that his workplace agenda strongly supports organized labor and increased employee protections. To that end, employers should expect a flurry of legislative and regulatory activity furthering Obama’s vision.

Because legislation is hashed out at the Committee level, interested observers should keep a watchful eye on a number of Senate and House Committees with authority over labor and employment issues. Generally, the committee chairs set the tone and agenda for their respective areas of influence.

After 10 years out of power, Democrats regained control of the Senate and House in 2006. Frustrated at the lack of ability to move forward their labor and employment agenda while in the minority--and in anticipation of a possible Democratic presidential victory in 2008--Democrats in the 110th Congress set forth a broad and far-reaching labor and employment agenda. Because the key players in the 111th Congress remain unchanged, it is anticipated that many labor and employment-related bills introduced in the 110th Congress will be reintroduced – this time to a president and Congress more receptive to their passage.

This blog will closely track actions taken by the following committees:

• Senate Health, Education, Labor and Pensions Committee;
• Senate Finance Committee, which has jurisdiction over healthcare, tax and pension issues;
• Senate Judiciary Committee, which oversees confirmation of Supreme Court justices as well as immigration reform legislation;
• House Education and Labor Committee;
• House Health, Education, Labor and Pensions Subcommittee, the origin of most labor and employment legislation;
• The House Ways and Means Committee, which is responsible for tax policy, employee benefits, and health care reform;
• House Judiciary Committee, charged with oversight of the federal judiciary and immigration reform legislation.

Check back to discover any changes in these committee memberships, and to follow the progress of labor and employment-related legislation introduced during the new administration.
 

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