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

In keeping with information published as part of the National Labor Relations Board’s unified agenda for the coming year, Board Chairman Mark Gaston Pearce told the Associated Press that he intends to push for additional sweeping changes to the union representation election process that would make it easier for unions to organize.

In December 2011, the National Labor Relations Board issued a final rule that will radically change representation election procedures.  Continue reading this entry at Littler's Labor Relations Counsel.

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By Stefan Marculewicz

In a move decried by the business community and even National Labor Relations Board Member Brian Hayes, the NLRB has issued a proposed rule (pdf) that would dramatically change pre- and post-representation election case procedures. It is predicted that the results of this proposed rulemaking will substantially expedite the election process and thereby deny workers the ability to fully exercise their right to make an informed and well-reasoned decision whether to join or not to join a labor union. In the words of Member Hayes in his strongly-worded dissent, (pdf) the proposed rulemaking “substantially limit[s] the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct.” Summing up his criticisms of the proposed changes, Hayes claims:

Today, my colleagues undertake an expedited rulemaking process in order to implement an expedited representation election process. Neither process is appropriate or necessary. Both processes, however, share a common purpose: to stifle full debate on matters that demand it, in furtherance of a belief that employers should have little or no involvement in the resolution of questions concerning representation. 

Continue reading this entry at Littler's Labor Relations Counsel. 

Photo credit:   ericsphotography

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Rep. Phil Roe (R-TN) has reintroduced the Secret Ballot Protection Act (SBPA) (H.R. 972) in the House of Representatives, legislation that would amend the National Labor Relations Act to guarantee the right to secret ballot union representation elections. In January, Sen. Jim DeMint (R-SC) introduced a companion bill in the Senate. Both bills would make it an unfair labor practice for an employer to recognize a union that has not been selected via secret ballot and make it unlawful for a union that has not been chosen as the employees’ exclusive representative in a secret ballot election conducted by the NLRB to cause or attempt to cause an employer to recognize or bargain with it.  Continue reading this entry at Littler's Labor Relations Counsel.

Photo credit: ericsphotography

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On January 27, Sen. Jim DeMint (R-SC) reintroduced the Secret Ballot Protection Act (SBPA) (S. 217), legislation that would amend the National Labor Relations Act to guarantee the right to secret ballot union representation elections. Essentially, this measure would make it an unfair labor practice under the NLRA for an employer to recognize a union that has not been selected via secret ballot. In addition, this bill would make it unlawful for a union that has not been chosen as the employees’ exclusive representative in a secret ballot election conducted by the NLRB to cause or attempt to cause an employer to recognize or bargain with it.  Continue reading this entry at Littler's Labor Relations Counsel. 

Photo credit: ericsphotography

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In keeping with the National Labor Relations Board’s recent efforts to comport with the Obama Administration’s efforts to enhance regulatory enforcement, including penalties, the Board’s Acting General Counsel (GC) has announced (pdf) a new initiative targeting employers during union election campaigns. In a memorandum (pdf) sent to regional directors and officers, Acting GC Lafe Solomon urges all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing. It should be noted that the so-called Employee Free Choice Act (EFCA) also called for enhanced penalties for alleged violations of the NLRA during a union organizing campaign.  Continue reading this entry at Littler's Labor Relations Counsel.

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Speculation has increased in many quarters that components of the Employee Free Choice Act may be implemented administratively given organized labor’s failure to achieve legislative progress. The most recent warning signal came during a Boston labor law conference held on October 21, when National Labor Relations Board (NLRB) member Mark Gaston Pearce, a Democrat appointee, opined that the time period between the filing of an election petition and the election itself should be “as brief as possible.” Under EFCA, organized labor sought the elimination of any election period through its card check proposal in order to effectively silence employers attempting to educate employees with regard to unionization and the impact of any decision to unionize.  Continue reading this entry at Littler's Labor Relations Counsel. 

Photo credit: NLRB.gov

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Many have speculated that the National Labor Relations Board may seek to implement through the Board’s processes certain aspects of the Employee Free Choice Act in lieu of legislative action. To wit, in a move that partially implements EFCA’s “enhanced enforcement” provisions, the NLRB Office of the General Counsel (GC) has put into place a program designed to streamline and expedite the process of seeking preliminary injunctions from federal courts in cases involving employee discharges during union organizing campaigns.  Continue reading this entry at Littler’s Labor Relations Counsel.

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During a question and answer session held in Fairfax, Virginia on September 13, President Obama acknowledged the political reality that the Employee Free Choice Act’s (EFCA) (H.R. 1409, S. 560) prospect of passage this session “is not real high.” Obama claimed that EFCA, often referred to as the “card check” bill, “is in response to 20, 30 years where it’s become more and more difficult for unions to just get a fair election and have their employers actually negotiate with them” – ignoring substantial evidence to the contrary. The President recognized, however, that “[f]rankly, we don’t have 60 votes in the Senate” to pass it. Given the current political trends leading up to this year’s mid-term Congressional elections, it seems unlikely that this situation will change in the foreseeable future.  Continue reading this entry at Littler’s Labor Relations Counsel.

Photo credit:  Pinewood Portrait Studios

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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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Coming one day after the Senate rejected advancing the nomination of Craig Becker to the National Labor Relations Board (NLRB), an op-ed piece by columnist Harold Meyerson in today’s The Washington Post proclaims that the Obama administration has been “close to an unmitigated disaster” for organized labor. According to the article, the Democrats’ loss of the Senate’s 60-seat filibuster-proof supermajority sounded the death knell for the Employee Free Choice Act (EFCA), any alleged “compromise” EFCA legislation, and the possibility to seat Craig Becker as a member of the NLRB. Although the column may have been written as a rallying cry for labor proponents, it is telling that a pro-union columnist is pronouncing labor’s legislative agenda dead so early in Obama’s term.

Photo credit: Christine Gehrig

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On Tuesday, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing on the nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB). During this hearing, Becker – Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations – tried to distance himself from the controversial positions he has taken in his scholarly writings, and assure committee members that he would be impartial Board member.

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Scott Brown’s (R) astonishing win in last week’s Massachusetts special election was made possible, in part, by the state’s union members. According to an article in Politico, 49 percent of union members backed the Republican state senator, while 46 percent cast their vote in favor of Massachusetts Attorney General Martha Coakley (D). By electing Brown as the 41st Republican U.S. senator, organized labor dramatically diminished the chances that their number one legislative priority – the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560) – will pass Congress this year. Now that Senate Democrats no longer have a filibuster-proof majority, it is unlikely that this controversial and increasingly unpopular bill will become law.

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Speaking yesterday at the National Press Club, AFL-CIO president Richard Trumka predicted that the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560) would be passed in the first quarter of 2010, and signaled that union leaders were going to renew their efforts to push for this legislation. Trumka declined, however, to say whether he would support an amended version of the bill that lacked the “card check” provision allowing the National Labor Relations Board to certify the union as the exclusive bargaining representative if a majority of employees signed authorization cards. Rumors of a so-called “compromise” bill that omits this provision but retains the section calling for binding arbitration in the event a first contract is not reached within a specified period of time—in addition to provisions outlining shorter election periods and greater union access to the workplace during the campaign period—have been floating around for months. Business advocates have long considered these terms to be as problematic and intrusive for employers as the card check provision. So far, no revised version of EFCA has been introduced.

Although Trumka’s statement is a bold one, it is unclear how much Congressional support remains for this controversial bill, especially before midterm elections. In the months following its introduction in March 2009, a number of key senators publicly stated their opposition to EFCA’s impact on secret ballot elections, if not the entire bill itself. Whether these same lawmakers would support EFCA absent the card check provision remains to be seen.
 

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On Tuesday, the National Labor Relations Board (NLRB) released its year-end report detailing its summary of operations for fiscal year 2009. A copy of this report can be downloaded from the agency’s press release (pdf) on this subject. According to this report, while the agency’s caseload remained steady, union representation election petitions dropped dramatically from the previous year, while unfair labor practices increased slightly. Specifically, the total number of unfair labor practice (ULP) charges and representation petitions filed for FY 2009 came to 25,853, compared to 25,901 in FY 2008. Of the overall case intake, unfair labor practice case intake was 22,941, a 1.96 percent increase from the previous year. However, the total intake for representation cases this year equaled 2,912, a 14.4 percent decline from the previous year’s tally of 3,400. In addition, the NLRB conducted 1,690 initial representation elections in FY 2009, 395 fewer than in 2008, amounting to a nearly 19 percent decrease. The drop in petitions is likely due, at least in part, to the proposed Employee Free Choice Act (EFCA), which, if enacted as currently written, would make it substantially easier for unions to be certified as the employees’ collective bargaining representative. It is possible that unions are holding out hope for EFCA’s passage before initiating any new organizing drives.

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On Tuesday Sen. Arlen Specter (D-PA) released some long-awaited details of an amended version of the Employee Free Choice Act (EFCA) that he believes “will meet labor’s objectives” and garner sufficient Congressional support. Speaking before the AFL-CIO Constitutional Convention, Specter predicted that a re-vamped version of EFCA will be passed this year. As reported in The Washington Post, Specter outlined the provisions of this so-called “compromise” bill following the AFL-CIO convention. Notably, Specter said the amended bill omits the controversial “card check” provision that would have allowed the National Labor Relations Board (NLRB) to certify a union as the exclusive bargaining representative based on a majority of signed authorization cards. Instead, according to the Post article, the amended EFCA:

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Labor Secretary Hilda Solis told attendees of the AFL-CIO Constitutional Convention in Pittsburgh today that she will work with the White House to “make the strongest case possible for the Employee Free Choice Act” and reiterated her position that the Department of Labor (DOL) “is once again back in the enforcement business.”  Her speech also outlined recent DOL enforcement efforts, and proposed regulations to reform the H-2A temporary agricultural worker program.

With respect to DOL enforcement, Solis announced that the agency is “adding nearly 670 additional investigators, inspectors, and other program staff, returning our worker protection efforts to a level not seen since 2001. So far, these resources has allowed the Wage and Hour Division to ensure that contractors on federal stimulus projects pay their workers the prevailing wage rates that they are entitled to.” Solis emphasized that worker safety is a chief concern, noting that since July, the Occupational Safety and Health Administration (OSHA) has completed 689 inspections and issued nearly 1,100 violations resulting in $1.6 million in fines.

Solis touched on immigration reform as well, explaining that the DOL is proposing to restructure the H-2A visa program. According to Solis, the proposed regulations “will reverse what I believe are unjust wage issues and working conditions for vulnerable U.S. and temporary foreign workers,” and “will ensure that before we import temporary workers to meet some labor shortages, U.S. workers have first dibs.”

As for the beleaguered Employee Free Choice Act (EFCA), Solis claimed that “it’s not enough to have fair wages and a safe workplace – workers also need a voice on the job!” To that end, Solis pledged to support EFCA, as well as the use of Project Labor Agreements for large federally funded projects.

President Obama is scheduled to speak at the AFL-CIO convention tomorrow.
 

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When Congress resumes next week, consideration of the Employee Free Choice Act (EFCA) will likely be pushed aside in favor of healthcare reform. According to an article in the Las Vegas Review-Journal, Senate Majority Leader Harry Reid (D-Nev.) told members of the Las Vegas Chamber of Commerce that senators “have too many other things on our plate” to take up the controversial “card check” bill anytime soon.

As reported in The Hill’s Blog Briefing Room, a few days earlier AFL-CIO Secretary-Treasurer Richard Trumka similarly acknowledged that any deliberation on the divisive bill would not take place until after health reform is dealt with. During a web chat on the blog firedoglake, Trumka claimed that the “President/and [Rahm] Emanuel have both said they dont [sic] intend to bring Employee Free Choice Act up until Health Insurance Reform is done. Which gives us an additional reason to do Health Insurance Reform now!”

While no surprise, these statements are significant in that they are among the first public acknowledgements by supporters that consideration of EFCA will be delayed. However, given President Obama’s upcoming speech at the September AFL-CIO convention, further developments are possible.

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Even though the highly controversial Employee Free Choice Act (EFCA) has lost support and one of its main components – card check recognition – reportedly is on the verge of being eliminated, the State of Hawaii has chosen another path and has enacted a bill resembling the EFCA in almost every respect. On July 15, the state overrode Governor Linda Lingle’s veto and passed House Bill 952, a measure that amends the Hawaii Employment Relations Act (HERA) by allowing the state’s Labor Relations Board to certify the results of a representation election based on a majority of signed authorization cards, mandates arbitration in the event a first contract is not reached within a specified period of time, and imposes civil penalties for unfair labor practices. While this bill is more limited in scope than the federal EFCA (H.R. 1409, S. 560) due to the fact that it only impacts certain employers, mainly agricultural with an annual revenue over a certain threshold, it will surely impact a number of private-sector as well as possibly Hawaii state employers that are not covered by the National Labor Relations Act. In addition, organized labor will no doubt use Hawaii as an example to push for the enactment of similar measures in other states.

Employees covered by this measure will be able to bypass a secret ballot union representation election if the state’s Labor Board determines that a majority of employees have signed valid authorization cards in favor of representation. After a union is certified and issues a request to collectively bargain, the Hawaii employer must commence bargaining with 10 days. If after 90 days the parties remain at an impasse, either may request conciliation. If after an additional 20 days (30 under the proposed federal EFCA) the parties still cannot reach an agreement, the matter will be referred to an arbitrator whose decision is binding for two years. The Hawaii mini-EFCA also imposes fines of up to $10,000 per unfair labor practice that is committed willfully or repeatedly. It is becoming clear that Congress will not follow Hawaii’s lead and is already moving away from consideration of the card check provisions of EFCA. However, for organized labor and certain employers in Hawaii, labor relations is entering a whole new era.

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In an attempt to save the Employee Free Choice Act (EFCA) from filibuster and potential failure, a handful of Democratic Senators have reportedly agreed to remove the highly contentious “card check” from the current version of the bill (H.R. 1409, S. 560).  According to an article published in The New York Times, the card check provision would be replaced by a shorter campaign period prior to an election, but other controversial EFCA measures would remain. Specifically, the article notes that expected EFCA revisions would require union elections to be held in as few as 5 or 10 days after 30 percent of workers sign authorization cards favoring union representation. In addition, lawmakers are reportedly considering provisions allowing union organizers to access company property during an organizing campaign, and preventing employers from requiring employees to attend employer-conducted information sessions often dubbed “captive audience” meetings. Since a revised EFCA bill has not yet been unveiled (much less negotiated or challenged), it is uncertain at this point which of these conditions, if any, will be included.

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After the Employee Free Choice Act’s (EFCA) momentum seemed to come to a screeching halt when Sen. Arlen Specter (D-Pa), along with other Democrats, announced last month that they would not vote for cloture on the bill, efforts to revive the measure are mounting. Yesterday, Sen. Tom Harkin (D-Iowa) – one of EFCA’s chief sponsors – said that he is “actively” talking with those Democratic senators who have expressed reservations about the “card check” legislation to try to come up with a compromise bill that he could take directly to the Senate floor.  In the alternative, Harkin claimed that he would move forward with the original bill sometime in June. In response, business groups have reiterated their position that any so-called compromise would be unacceptable.

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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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In the weeks since a litany of Senators recently spoke out against the Employee Free Choice Act (EFCA), organized labor has nonetheless complained that it deserves an up-or-down vote on whether to take away employees’ right to vote in secret on unionization. With little hope that these Senators will change their position, Andy Stern, head of the Service Employees International Union (SEIU), has now acknowledged that the prospects for EFCA’s passage look grim, indicating the first large fissure in organized labor’s efforts to pass EFCA. In an interview with The Washington Post, admitting a strategic error on the part of EFCA supporters, Stern intimated that the version of EFCA introduced in the Senate – which contains, among other things, the infamous “card check” and mandatory arbitration provisions – was introduced in this form to mirror the companion bill introduced in the House, and that this strategy might not have been the best one to ensure EFCA’s passage. According to the article, Stern said:

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The following is a summary of the legislative and regulatory news for the week of March 29, 2009:

Agency Changes

President Obama has named J. Randolph “Randy” Babbitt to lead the Federal Aviation Administration (FAA).

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Sen. Arlen Specter’s (R-Pa.) announcement that he would not vote for cloture on the Employee Free Choice Act (EFCA) now appears to have only been a prelude to a rapid decline in support from Democrats who formerly supported the Act, including some unlikely defectors. Recently, Sen. Dianne Feinstein (D-Calif.) – who cosponsored the same legislation in 2007 – announced that due to the faltering economy, she would not support EFCA in its current form. Instead, she claimed – as did Specter – that she would support a compromise measure. According to an article by the Los Angeles Times, Feinstein said: “[t]his is an extraordinarily difficult economy, and feelings are very strong on both sides of the issue. I would hope there is some way to find common ground that would be agreeable to both business and labor.”  It should be noted that both the business community and organized labor are on record as strongly opposing any compromise on EFCA.

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A report released last week by conservative think tank Manhattan Institute for Policy Research argues that the Employee Free Choice Act’s (EFCA) mandatory arbitration provision equates to a government takeover of the private sector. According to the report, “EFCA seeks in a few short paragraphs to erect a labor regime whose untested provisions and coercive power will add countless business casualties to our already suffering economy.” In particular, the report laments that public debate on EFCA has centered on the card check provisions, and “has thus glossed over the synergistic risks when it is married to a program of compulsory arbitration.”

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In a move sure to be welcomed by the business community, Senator Arlen Specter (R-Pa) has announced that he opposes the Employee Free Choice Act (EFCA) at this time, and will vote against cloture.  Speaking on the Senate floor, Specter claimed that given the current economic climate, “[t]his is a particularly bad time to enact Employee Free Choice legislation. . . I have made up my mind. Knowing I will not support cloture on this bill, senators may decide to move on and amend the NLRA [National Labor Relations Act] as I have suggested . . . ” Specter suggests amending the NLRA to require quicker elections, easier access by unions to employees, and heftier penalties for employer unfair labor practices, among other measures. He argues that this is “a better way to expand labor's clout in collective bargaining” as opposed to eliminating the secret ballot and instituting mandatory arbitration in the event a first contract is not reached within a specified period of time.

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The following is a summary of the legislative and regulatory news for the week of March 15, 2009:

Agency Changes

President Obama has nominated Linda Puchala to hold a seat on the National Mediation Board (NMB).  In the Labor Department, Obama has nominated T. Michael Kerr to be the assistant labor secretary for administration and management, and M. Patricia Smith to be the labor solicitor.

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In addition to other problems with the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560), this controversial labor bill is also inconsistent with international law, so claims a letter sent to congressional leaders by the United States Council for International Business (USCIB) and the United States Chamber of Commerce (“U.S. Chamber”).  According to the letter, EFCA’s modification of the National Labor Relations Act (NLRA) to institute a card check union representation recognition process that potentially displaces the secret ballot election and forces parties to engage in mandatory binding arbitration in the event an initial collective bargaining agreement is not reached within a set period of time “contradict[s] principles of international labor law, as they have been defined by the International Labor Organization (ILO).”

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The following is a summary of the legislative and regulatory news for the week of March 8, 2009:

Discrimination in the Workplace

The Department of Health and Human Services has published its proposed rescission of the provider conscience rule.

EFCA/Labor-Management Relations

The Employee Free Choice Act (EFCA) was finally introduced in both the House and Senate.  Prior to its introduction, support for this measure already seemed to be waning.  Meanwhile, an alternative measure that lacks the contentious card-check provision was introduced.

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The day unions have been anticipating – and businesses have been dreading – has arrived. The Employee Free Choice Act (EFCA) was formally introduced in the 111th Congress today in both the House and Senate, although with noticeably fewer co-sponsors this time around. The Senate bill, sponsored by Senators Tom Harkin (D-Iowa) and Ted Kennedy (D-Mass.), was introduced with 40 co-sponsors, compared to 46 in 2007. In the House, Rep. George Miller (D-Calif.) introduced a companion bill with 223 co-sponsors, 7 fewer than when the bill was originally introduced last session. The discrepancy is compounded by the fact that Democrats gained seats in both houses in the past election, and may be a harbinger of the fight to come.

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While much of the labor-related legislative focus has been on the re-introduction of the Employee Free Choice Act (EFCA), another bill has slipped virtually unnoticed into the halls of Congress. The National Labor Relations Modernization Act (NLRMA) (H.R. 1355), introduced by Rep. Joe Sestak (D-Pa.), would amend the National Labor Relations Act (NLRA) to require employers to provide unions with equal access to employees prior to a representation election, increase employer penalties for unfair labor practices, and expedite the collective bargaining process. This bill resembles EFCA in many ways, but lacks the highly-contentious “card check” provision that obviates the need for a secret ballot election. While the supporters and opponents of EFCA continue to express a stiff resistance to any change in their relative positions – either EFCA as written or not at all – the NLRMA is the first attempt at striking a compromise position.

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With rumors swirling that the Employee Free Choice Act (EFCA) may be introduced as early as tomorrow, both union and business interests have marshaled their forces in Washington. Both sides plan to descend on Congress this week in an effort to sway the remaining Senate holdouts. It seems increasingly likely that EFCA will be introduced in the Senate first, as support in the Senate is more tenuous than that in the House. Unions will have their work cut out for them, however, as even EFCA supporters have begun to acknowledge that gaining enough votes to invoke cloture – and thus avoid the inevitable filibuster – has become something of an uphill battle.

On ABC’s This Week, Sen. Claire McCaskill (D-Mo.) admitted: “I’m not sure that we have the votes” for cloture. Among those with wavering support are Sens. Blanche Lincoln (D-Ark.) and Mary Landrieu (D-La.), who will no doubt be prime targets for this week’s lobbying campaign. Democratic senators in right-to-work states also face pressure from their business constituents to oppose the bill. EFCA fell nine votes short in the Senate when it was first introduced in 2007, so every vote is critical. Although EFCA’s passage in the House is virtually guaranteed, some Democratic representatives have already voiced their opposition. On Friday, Rep. Dan Boren (D-Okla.) became the first House Democrat to openly declare his position against EFCA. More could follow. Until then, it will certainly be an interesting week. Among the possibilities to watch for is the potential for negotiations that could transform EFCA into something that might convince middle of the road Senators to support it.

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The following is a summary of the legislative and regulatory news for the week of March 1, 2009:

EFCA

The introduction of the Employee Free Choice Act may occur sooner than anticipated.

Employment Discrimination

The United States Commission on Civil Rights (USCCR) has re-opened the period for public comment on English-only policies in the workplace.  In addition, the Equal Employment Opportunity Commission (EEOC) has published its proposed rules governing the employment provisions of the Genetic Information Non-Discrimination Act (GINA).

Work-Family Balance

The Working Families Flexibility Act (H.R. 1274) was introduced.  This bill would provide employees with a statutory right to request flexible work terms and conditions.

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The initial predictions that the Employee Free Choice Act (EFCA) would be introduced in Congress within the first 100 days of the Obama administration may yet prove to be true. Earlier this year, as interest and attention turned to our failing economy and emergency rescue measures, many revised their estimates, forecasting that EFCA would not make its debut until this spring at the earliest. It now appears, however, that EFCA may be reintroduced as soon as Monday.  According to a number of sources, including the National Association of Manufacturer’s blog ShopFloor and the Los Angeles County Federation of Labor, AFL-CIO, rumor has it that Rep. George Miller (D-Calif.) and Sen. Ted Kennedy (D-Mass.) are expected to introduce EFCA – also known as the “card check” legislation – on March 9, 2009.  If this rumor is accurate, Monday will spark the beginning of what promises to be a highly contentious legislative battle.

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The following is a summary of the legislative and regulatory news for the week of February 22, 2009:

Agency Changes

Hilda Solis was officially confirmed as the next U.S. Secretary of Labor.  President Obama has chosen Seth Harris to take the number two position at the Department of Labor (DOL).  Obama has also announced his plans to nominate John Morton to be the Assistant Secretary for Immigration and Customs Enforcement (ICE) and Janet Napolitano, Homeland Security Secretary, has named Esther Olavarria as Deputy Assistant Secretary for Policy. 

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Organized labor has repeatedly and forcefully stated that it will push for the reintroduction of the Employee Free Choice Act (EFCA) as soon as possible. As previously discussed, EFCA could fundamentally alter the way employers do business in this country. To further expound upon EFCA’s likelihood of enactment and in what form, we invited resident labor expert Bob Battista, a Shareholder in Littler’s Washington, DC office, to answer some questions. In addition to serving as Chairman of the National Labor Relations Board for five years, Mr. Battista has practiced labor and employment law for nearly four decades.

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In a preemptive move in anticipation of the re-introduction of the Employee Free Choice Act (EFCA), a group comprised of both House and Senate Republicans have introduced legislation aimed to preserve secret ballot union elections. The Secret Ballot Protection Act (SBPA) was introduced in the Senate by Jim DeMint (R-S.C.), Chairman of the Senate Steering Committee, and Mike Enzi (R-Wyo.), Ranking Member of the Senate Health, Education, Labor and Pensions (HELP) Committee, with 16 co-sponsors. In the House, a companion bill was introduced by Reps. John Kline (R-Minn.) and Tom Price (R-GA), with 101 co-sponsors.

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Employee Benefits

Both the House and Senate versions of the 2009 Stimulus Bill include sweeping revisions to ERISA’s COBRA provisions.

The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued a notice proposing the extension of the effective and applicability dates of final regulation on investment advice provided to participants and beneficiaries of 401(k) plans and IRAs.

The State Children’s Health Insurance Program Reauthorization Act of 2009, signed into law on February 4, includes provisions amending ERISA.

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While it is expected that business and labor interests will have differing opinions on the Employee Free Choice Act (EFCA), it is generally anticipated that the president and vice president would be on the same page. Some off-the-cuff remarks by Vice President Biden last week, however, appear to indicate a rift in thinking between the two.

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Agency Changes

President Obama named Stuart Ishimaru to serve as acting chairman of the EEOC, and Christine Griffin as acting vice chairman.

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Despite vigorous employer opposition and declining political and public support, the Employee Free Choice Act (EFCA) will likely become a focal point this summer. According to an article published in the Las Vegas Sun, Senate majority Leader Harry Reid (D-Nev.) still considers this bill an “important piece of legislation,” that the Senate hopes to address “sometime this summer.” The delay represents a significant deviation from expectations for the bill’s early consideration and a temporary setback for organized labor.

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The incoming administration took no time in setting up cybershop at the official White House website Tuesday afternoon. Before the President had even taken the oath of office, the files that once occupied Obama’s Change.gov site were transferred to the White House government page. Notably absent from this new site, however, was any mention of Obama’s ambitious labor agenda, including his desire to pass the controversial Employee Free Choice Act (EFCA). In fact, “Labor” isn’t even listed as one of the 24 subcategories under the link outlining the administration’s broad “Agenda.” Organized labor initiatives do not even appear under the catch-all “Additional Issues” subcategory.

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Despite the dramatic gains in the Senate by the Democrats and the support of President-elect Obama, there are a number of signs indicating that the Employee Free Choice Act in its current form, may still not have enough votes to become law next year. On Tuesday, Senator Blanche Lincoln (D-Ark.), a supporter until now, announced that she deemed the card-check proposal “unnecessary.” While refraining from stating that she would vote against EFCA altogether, it appears that Lincoln – who is up for reelection in 2010 – cannot be counted on to support this legislation without reservation and it is very possible that she would not again vote to end a filibuster of the bill in the Senate. Meanwhile, on the other side of the aisle, Republican Senator Arlen Specter –who was the only Republican Senator who voted in favor of the measure in 2007 – has yet to declare publicly whether he will once again cast his vote in favor of EFCA’s passage, and there are indications that he is uncomfortable with the bill in its current form.

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President-elect Obama is an advocate of organized labor. He has expressly stated that passage of the Employee Free Choice Act (EFCA) is a top priority. EFCA is without a doubt the most controversial labor initiative facing his administration. Organized labor is pushing hard to put EFCA at the top of the agenda for the First 100 Days of the new administration, but with other pressing economic priorities, and with strong opposition from the business community, it remains to be seen if EFCA will get top billing. Rep. George Miller (D-CA), Chair of the House Education and Labor Committee, has already stated that EFCA will not be the first bill considered by his committee. Nevertheless, there is no doubt that EFCA will be debated sooner rather than later.

Obama was a co-sponsor in the Senate of EFCA, first introduced in 2007 (H.R. 800; S. 1041). The key – and most contentious – provisions of this legislation seek to amend the National Labor Relations Act (NLRA) by:

• Requiring the National Labor Relations Board (NLRB) to certify a labor union as the exclusive bargaining representative of employees based on the union submitting authorization cards signed by a majority of employees (“card check”), without employees voting in a government-supervised, secret-ballot election;
• Requiring binding interest arbitration to set the terms of a new contract if an employer and a newly certified union are unable to reach a first contract within a specified number of days; and
• Expanding the NLRB’s remedial power for employer unfair labor practices during union organizing campaigns and during bargaining for first labor contracts, including the authority to award civil penalties.

Whether and in what incarnation EFCA becomes law during the new administration will likely be determined by the ultimate composition of the Senate – the law is clear to pass in the House. Currently, Democrats maintain 58 seats (including two Independents who caucus with the Democrats), with one seat up for grabs. Moreover, the last time EFCA was up for consideration, Republican Senator Arlen Specter (Pa.) voted in favor of this legislation. Therefore, assuming all Democrats vote in favor of EFCA, or if some Republicans can be persuaded to permit a vote, it is possible that the Democrats could invoke cloture and prevent a Republican filibuster, enabling the Act’s passage. Despite heavy union pressure and publicity to enact EFCA, it is not a foregone conclusion that all Democratic senators will vote in its favor. Many representing states with small percentages of union members will face considerable pressure from their business constituents to deny EFCA’s passage, or to remove some of its teeth. The U.S. Chamber of Commerce and others are already ratcheting up efforts to galvanize the business community against EFCA. Fearing strong business opposition, unions may attempt to slip EFCA provisions into a second economic stimulus bill instead of a stand-alone piece of legislation. Also possible is a compromise bill, such as one where employees, but not the employer, could seek a secret ballot election during a limited time period after a union card check certification is done (which is something the NLRB will do now in limited circumstances involving voluntary card check situations).

The evolution of EFCA will be closely monitored and reported. Employers should act now to prepare for EFCA, including evaluating their union susceptibility, through audits conducted by knowledgeable counsel. For more information on EFCA and its implications in the workplace, see The Employee Free Choice Act: A Critical Analysis, and The Employee Free Choice Act: It’s More Than Just a Misleading Name.

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