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

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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