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

would try to make union elections more fair by sharply limiting the time between organizers' declaration that they have enough support to call an election and the day of the vote, to reduce the potential for employer intimidation. Organizers would also be guaranteed access to workers if employers held mandatory anti-union meetings on company time. And the penalties for employers who break labor law rules would be triple what they are today.

As for the equally contentious arbitration provision, the amended bill would still impose forced government arbitration if the parties cannot agree to the terms of a first contract within a specified time period, but would establish a “last best offer” model for final resolution. Under this approach, the arbitrator chooses between the two parties’ contract proposals, rather than exercising unfettered discretion on contract terms.

While on the surface these amendments appear to temper some of the more controversial terms that have been anathema to business interests, the changes are not drastic enough to attract wide-spread support within the business community, most of which is opposed to EFCA in any form and in particular is opposed to first contract arbitration. In fact, this version of EFCA – unlike the original bill – would provide union organizers with unprecedented access to the workplace. While the suggested bill would preserve the representation election process, the shortened election period would limit an employer’s ability to present its position to employees so that employees can make a fully-educated decision on unionization having heard both sides.

Despite Specter’s claims that a deal has been reached that would satisfy organized labor, AFL-CIO Secretary-Treasurer Richard Trumka – who was elected AFL-CIO President on Wednesday – has stated that the card check provision is still on the table. Therefore, it is still unclear what the final version of EFCA will look like at this point. It is also unclear whether there are enough votes in the Senate today to break a filibuster in light of the seat vacated by the death of Senator Kennedy and the continued absence of Senator Byrd (D-WV), even if the modified bill could attract the support of moderate Democrats (some of whom to date have opposed the passage of EFCA).

As for Specter’s estimated timeline for the measure’s passage, it is unlikely that any labor law reform bill will receive serious consideration until after Congress has dealt with healthcare reform. While President Obama reiterated his support for EFCA during the AFL-CIO convention, his remarks on that issue were brief., choosing instead to focus his speech on healthcare reform and job creation. It is possible, however, that organized labor will press for a Senate vote by the end of the year if it feels that the political climate for EFCA will worsen in 2010 or if labor wants EFCA to be a central campaign issue in the 2010 elections.

EFCA

Sen. Arlen Specter (R-Pa.) announced that he will vote against cloture on the Employee Free Choice Act (EFCA).

Employee Benefits

The Internal Revenue Service (IRS) said during a webcast sponsored by the DOL that individuals who accept an employer’s offer to retire or resign to avoid a layoff would be eligible to take advantage of the new COBRA subsidy.

The Incentive to Serve Tax Act (H.R. 1644) was introduced. This bill would amend the Internal Revenue Code (IRC) to provide a tax credit for qualified donations of employee services.

Additionally, the Veterans’ Employment Transition Support Act of 2009 (VETS Act of 2009) (H.R. 1647) was introduced. This legislation would amend the IRC to provide employers with a tax credit for hiring veterans.

Employee Wage and Hour Law

The Federal Aviation Administration (FAA) has decided to withdraw its revised pilot and flight attendant rest rules for long-range flights.

Labor Secretary Hilda Solis has vowed to hire 250 wage and hour investigators in the wake of a damning GAO report on faulty and/or inadequate wage and hour complaint investigations.

Immigration

The DOL proposes to suspend for nine months the H-2A regulations published on December 18, 2008, which became effective on January 17, 2009.  Meanwhile, the DOL has withdrawn its interpretation of the Fair Labor Standards Act (FLSA) concerning relocation expenses incurred by H-2A and H-2B workers.  Also this week, the USCIS announced that employers receiving funds through the Troubled Asset Relief Program (TARP) and other federal funding must meet additional requirements before hiring foreign nationals to work in the H-1B specialty occupation category.

Labor/Management Relations

The National Labor Relations Board (NLRB) has made its pilot ADR program permanent.

Work/Family Balance

The Family Leave Insurance Act of 2009 (H.R. 1723) was introduced. This bill would create an employee- and employer-funded insurance program allowing employees to take up to 12 weeks of paid family and medical leave.
 

Specter’s position on this issue is significant, as he was the only Republican senator to join with the Democrats on the cloture issue when this bill was first introduced in 2007. Back then, the proponents of the measure – commonly known as the “card check” bill – were nine votes short of avoiding the inevitable filibuster. EFCA supporters were more optimistic this year, given the Democratic gains in Congress and support by a President who co-sponsored the original bill. Despite these gains, however, Democrats still seem to lack the 60 votes needed to invoke cloture and therefore need the support of at least one Republican senator to keep the bill alive (assuming that the Democrats support the bill). Specter’s change of heart is no doubt a harbinger of opposition to come within Republican – and perhaps Democratic – ranks. Specter’s suggestion to amend the NLRA in lieu of supporting EFCA strongly suggests that he might be amenable to a compromise measure, such as the National Labor Relations Modernization Act or a proposal announced by some major retailers several days ago (see below) or some other compromise.

Specter himself suggests 12 amendments to the NLRA on his website. His proposals include establishing a timetable for holding a union election and ensuring the onset of bargaining following an election. He also proposes making it an unfair labor practice for both unions and employers to visit employees’ homes without prior consent during an election campaign, for employers to hold “captive audience” speeches unless the union has equal time to do so, and for both sides to engage in campaign-related activities within 24 hours prior to an election. Stiffer penalties are also proposed for both union and employer violations of the NLRA during an election campaign. In place of binding arbitration in the event a first contract is not reached, Specter proposes mediation after 120 days. A more stringent Board review process is outlined in the event allegations are made that a party is not negotiating in good faith. The proposals also include an order to impose injunctive relief, costs and attorney’s fees if either party is found to be in bad faith, engages in harassment, or causes unnecessary delay in the negotiation process. The proposal suggests modifying the NLRA to give courts broader discretion to impose a Gissel (forced union acceptance) order on a finding that the environment has deteriorated to the extent a fair election is not possible.

Some of these amendments are similar to suggestions embodied in a compromise measure proposed by three major corporations this past Sunday. During a press conference, executives of Starbucks, Costco, and Whole Foods suggested ideas for a compromise measure. Known as the “third way,” this proposal would maintain an employer’s right to demand a secret ballot union election and omit the provision in EFCA mandating binding arbitration. This compromise would, however, keep the stiffer penalties outlined in the bill should an employer commit unfair labor practices before union elections or refuse to engage in collective bargaining. The compromise similarly strengthens proposed penalties for union violations, and would make it easier for employers to call elections to decertify a union. Additionally, the “third way” compromise would give unions equal access to workers in regard to captive audience speeches before union elections.