Labor, Employment, and Immigration Developments Randel K. Johnson Vice President, Labor, Immigration, and Employee Benefits U. S. Chamber of Commerce
Union Membership 1948 – 2006 As A Percentage of the Private Sector
Union Election Win Rate A recent BNA review of union elections as collected by the National Labor Relations Board showed: • The union win rate decreased slightly to 60. 1 percent in 2007, down from 61. 4 percent the year before. • Unions have won more than half of all representation elections in each of the past 11 years. • The NLRB conducted 1, 502 elections in 2007, compared with 1, 657 in 2006. In 1996, about 3, 300 elections were conducted by the agency. • The number of elections won by unions also decreased to 902 in 2007 from 1, 018 in 2006. • The number of eligible voters decreased to 101, 991 in 2007 from 112, 236 in 2006. • In 2007, unions organized 57, 908 workers through the NLRB elections, down from 59, 759 the previous year.
Political Spending • In 2004, and in 2006, unions spent a combined $561 million on elections, up from the $381 million spent on the previous two campaigns. * • Unions spent $70. 3 million on getting out the vote efforts in 2004 and 2006, up from $28. 8 million in the two previous election cycles. * • Unions (including the AFL-CIO and SEIU) spent approximately $450 million on the 2008 election. • The AFL-CIO mobilized more than 13 million union voters in 24 priority states in the Presidential, Senate, House, state and local races throughout the country. In the last four days of the campaign, 250, 000 volunteers from AFL-CIO affiliated unions made 5. 5 million phone calls and visited 3. 9 million union households. *Center for Responsive Politics
What are Union Leaders Saying? • John Sweeney, President, AFL-CIO: “Wealthy corporate interests don’t want to give up power and they are spending hundred of millions of dollars to lie about what the bill [Employee Free Choice Act] does. But hard working Americans will not let their voices be silenced by wealthy CEOs and corporate lobbyists. Already, all across the country, working men and women are mobilizing at the grassroots, calling on Congress to pass the Employee Free Choice Act. ” • Andy Stern, President, SEIU (when discussing EFCA): “I don’t think there’s any question that he (referring to President Obama) says there will be a vote, that this bill’s time has arrived and he will do whatever is in his power to bring this home. We just aren’t there yet. ” • Terry O’ Sullivan, General President, Laborer’s International Union of North America: “Behind the hyperbole and rhetoric describing the proposed law as ‘Armageddon’ or a ‘death match’ between corporations and union stands a simple fact: Enacting the Employee Free Choice Act would begin to solve the vexing problems created by Wall Street having too much power and Main Street having too little. The bill would simply remove the barriers facing working men and women who try to improve their lives by joining together in a union---and that would help balance the power of corporations. ” 5
Excerpts from Labor Activist Sharon Smith’s Speech: “The Left in the Obama Era” On February 28, 2009, author Sharon Smith gave a speech entitled “The Left in the Obama Era” in the UNITE HERE union hall. Here are some excerpts: • “So most of all, what Obama has shown us in the first weeks of his presidency is that we will get only as much as we fight for from this Administration. Fortunately, since his election, what we have seen indicates that many, many people are ready and willing to wage the fight that is needed. ” • “There were many defeat in the 1930 s, mainly before 1935, which is when things began to turn in favor of workers. The point here is, however, that the possibility for struggle opens that possibility that we can actually win. If you don’t fight, you can pretty much be guaranteed that you won’t be winning. ” • “Those of us on the left– through no fault of our own, we’re just used to losing, not winning, we’re used to aiming low and not aiming high—and just now if we really want to win, we have to have some sort of expectation that it’s possible. Otherwise, what are we doing fighting? 3/16/2018
Composition of the 111 th Congress • Senate 110 th Congress: 51 -49, 2 Independents who caucus with the Democrats (Sanders-VT, Lieberman-CT). • 111 th Congress: Democrats have increased their margin by a net gain of eight seats and now control the chamber by a margin of 59 -41. * • One seat still outstanding: Minnesota (Coleman-pending lawsuit). • House In the 110 th Congress, the Democratic Party controlled the House by a margin of 236 -199. • Democrats have increased their majority by a net gain of 20 seats and in the 111 th Congress, they now lead by a margin of 256 -178, with one seat vacant. • Includes 2 independents who caucus with the Democrats and Sen. Arlen 3/16/2018 Specter (switched parties on April 28, 2009)
Sample of Employment Legislation Introduced 110 th Congress/111 th Congress Union Organizing • The Employee Free Choice Act • The National Labor Relations Modernization Act • The “RESPECT” Act • Repeal Section 14 (b) of the Labor-Management Relations Act Civil Rights • The Lilly Ledbetter Fair Pay Act of 2009 • The Paycheck Fairness Act • The Forewarn Act of 2007/ The Early Warning and Health Care for Workers Affected by Globalization Act • The Workplace Religious Freedom Act of 2007 • The Civil Rights Act of 2008 Leave Mandates • The Healthy Families Act • The Working Families Flexibility Act • Family and Medical Leave Act Expansion Workers Compensation • National Commission on State Worker’s Compensation Laws Act Occupational Safety and Health Penalties • The Protecting America’s Worker Act Tax Credit Legislation • The Patriot Employers Act Independent Contractor Status • Narrowing the definition of an “Independent Contractor”
The “Employee Free Choice Act” (H. R. 1409/S. 560) The bill introduced by Representative George Miller (D-CA) and Sen. Edward Kennedy (D-MA) would: • Allow unions to be recognized if a majority of employees in a bargaining unit signed authorization cards, thus eliminating the right of the employer to call for a secret ballot election. • Force contract negotiations into government-imposed binding arbitration if the employer fails to agree on a contract with a newly formed union within 120 days. • Impose stiffer penalties on employers, but not on unions, for violations.
Current Law: Collective Bargaining • Bargaining in good faith required • Each party free to determine whether proposals are acceptable • Broad NLRB authority to remedy bad-faith bargaining • Union leverage includes strikes • Workers typically can vote on the contract
Union Organizing: Current Law Paid union organizer s collect signature s NLRB reviews signed cards and schedul es election NLRB conduct s secret -ballot election s NLRB counts ballots, majorit y rules If majorit y vote for a union, then. . . Employer must recognize union as legal representati ve and bargain
“Employee Free Choice Act” Paid union organizer s collect signature s NLRB reviews signed cards and schedul es election NLRB conduct s secret -ballot election s NLRB counts ballots, majorit y rules If majorit y vote for a union, then. . . Employer must recognize union as legal representati ve and bargain
“Streamlining Union Certification” “(a) In General- Section 9(c) of the National Labor Relations Act (29 U. S. C. 159(c)) is amended by adding at the end the following: (6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a). ”
Polling • Every worker should have the right to a federally supervised secret ballot election when deciding whether or not to organize a union – Agree: 87% – Disagree: 9% • Every worker should have the right to a federally supervised secret ballot election when deciding whether or not to organize a union – Agree: 90% – Disagree: 7% • There is a bill in Congress that would replace a federally supervised secret ballot election with a process that requires a majority of workers to simply sign a card to authorize organizing a union and the workers signatures would be made public to their employer, the union organizers, and their co-workers… – Support: 14% – Oppose: 79%
Polling (Cont. ) • Would you be more or less likely to vote for a Member of Congress who voted in favor of taking away a worker’s right to have a federally supervised secret ballot election to decide whether to organize a union? – More likely: 8% – Less likely: 70% • Would you be more or less likely to vote for a Member of Congress who voted in favor of taking away a worker’s right to have a federally supervised secret ballot election to decide whether to organize a union? (Union Households Only) – More likely: 8% – Less likely: 75%
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Arbitration “Whenever collective bargaining is for the purpose of establishing an initial agreement Following certification or recognition, the provisions of subsection (d) shall be modified as follows: • (1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative as defined in section 9(a), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement. • (2) If after the expiration of the 90 -day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.
Arbitration (Cont. ) • (3) If after the expiration of the 30 -day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties. ”
“Employee Free Choice Act” • Mandatory government interest arbitration of first contracts – Unreasonably short time periods • Mediation after 90 days • Arbitration after 30 days mediation – Government sets contract terms • Employer and union need not agree • Workers need not agree (no contract vote)
Polling • Under current law, when a company’s workers decides to unionize, the employer and union are required to negotiate in good faith to reach a contract. There is a bill before Congress that would replace this system and have government-appointed arbitration panels write union contracts, which would be binding for two years. Which do you think is a better system to develop a union contract? - A system that encourages good faith negotiations A system where government arbitrators write the contract Neither (Vol) Both (Vol) Don’t know Refused 75% 16 1 1 6 2
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EFCA Increases Damages on Employers, but not on Unions Treble Damages Back Pay “Back pay shall be awarded and fees for two times the back pay amount shall be awarded as liquidated damages when an employer has discriminated against an employee in violation of § 8(a)(3) (hiring/firing because of union activity) when employees were seeking representation or during the period after a labor organization was recognized until the final contract. ”
EFCA Increases Damages on Employers, but not on Unions--II Civil Penalties “An employer who willfully and repeatedly commits any unfair labor practice within the meaning of § 8(a)(1) (interfering with organizing) or (3) (hiring or firing) while employees are seeking representation by a labor organization or during the period after recognition until the final contract is subject to a civil penalty not to exceed $20, 000 for each violation. ”
EFCA Increases Damages on Employers, but not on Unions--III Injunctive Relief “Where it is charged that an employer discharged an employee in violation of § 8(a)(3) (hiring or firing for union activity) or threatened to discharge an employee or otherwise threatened an employee in violation of § 8(a)(1) (interfering with organizing) or engaged in any other unfair labor practice within the meaning of § 8(a)(1) while employees were seeking representation by a labor organization or during the period after recognition until the final contract, the NLRB must seek an injunction. ”
Senator Arlen Specter (R-PA) • March 24, 2009: Indicated that he won’t support cloture for EFCA at this time: – “The problem of the recession make this a particularly bad time to enact employees choice legislation. Employers understandably complain that adding a burden [would] result in further job losses. If efforts are unsuccessful to give labor sufficient bargaining power through amendments to the NLRA then I would be willing to reconsider the employees choice legislation when the economy returns to normalcy. Knowing that I will not support cloture on this bill, senators may choose to move on and amend the NLRA, as I have suggested, or otherwise. ” • However, he later stated, that he may be willing to re-consider his position: – “I put a little caveat in my floor statement: Card check is coming back. It’ll be reconsidered. And we may be, America may be looking at a Senate which has 60 or more Democrats, and I think this behooves Republicans and the business community to try to resolve this. ”
Senator Blanche Lincoln (D-AK) • Opposes the bill in its current form: “While I may not have been clear about my position in the past, I am stating today that I cannot support the Employee Free Choice Act in its current form and I can’t support efforts to bring it to Senate consideration in its current form. ” - Remarks made at the Little Rock Political Animals Club on April 6, 2009
Court Decisions on Employee Free Choice • “Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back. ” NLRB v. Village IX, Inc. , 723 F. 2 d 1360, 1371 (7 th Cir. 1983) • “On the contrary, both the Board and courts have long recognized that the freedom of choice guaranteed employees by Section 7 is better realized by a secret election than a card check majority. ” Dana Corp. , 351 NLRB No. 28 (2007) • “It would be difficult to imagine a more unreliable method of ascertaining the real wishes of employees than a ‘card check’ unless it were an employer’s request for an open show of hands. The one is no more reliable than the other. . . Overwhelming majorities of cards may indicate the probable outcome of an election, but it is no more than an indication, and close card majorities prove nothing. ” NLRB v. S. S. Logan Packing Co. , 386 F. 2 d 562, 565 (4 th Cir. 1967) • “The National Labor Relations Act establishes an electoral apparatus to be administered by the Board because formal elections with secret ballots best express employees’ free choice. ” Transportation Maintenance Services v. NLRB, 275 F. 3 d 112, 114 (D. C. Cir. 2002) 3/16/2018
EFCA- Remarks by George Mc. Govern In an editorial published in the Wall Street Journal on August 8, 2008, former senator and presidential candidate George Mc. Govern wrote: • “As a longtime friend of labor unions, I must raise my voice against pending legislation I see as a disturbing undemocratic overreach not in the interest of either management or labor. That legislation is called the Employee Free Choice Act, and I am sad to say it runs counter to ideals that were once at the core of the labor movement…Under EFCA, workers would lose the freedom to express their will in private, the right to make a decision without anyone peering over their shoulder, free from fear of reprisal. ” • “I worry that there has been too little discussion about EFCA’s true ramifications, and I think much of the congressional support is based on a desire to give our friends among union leaders what they want. But part of being a good steward of democracy means telling our friends ‘no’ when they press for a course that in the long run may weaken labor and disrupt a tried and trusted method for conducting honest elections. ” 3/16/2018
What are the Editorial Boards Saying About “EFCA”? • “These tactics have worked in the past. But the lessons of card check so far is that, united, the business world still wields extraordinary clout. So extraordinary that it has managed to bottle up Big Labor’s top priority in a town run exclusively by labor’s Democratic patrons. Business’s continued unity, or lack of it, will decide what happens next. ” ( The Wall Street Journal, 03/27/09) • “Unions once supported the secret ballot for organization elections. They were right then and are wrong now. ” (The Los Angeles Times, 03/01/07) • “The unions aren’t asking for fair play here. They want to corner the market on bullying. ” (St. Petersburg Times, 02/28/07) • “In fact, the Employee Free Choice Act’s ‘card check’ would do more than put an end to secret ballot for workers. It would in some sense disenfranchise many people in their workplace’s decision to unionize. ” (The Oregonian, 09/24/08)
AFL-CIO Grassroots Campaign As part of their campaign to pass EFCA, the AFL-CIO has pledged to: • Release staff in 16 priority states to “work together to meet our ambitious member mobilization goals, coordinate with allies, and reach Senators in their home state. ” • Activate 1 percent of their membership each month in priority states to make calls and write letters to members of Congress. • Plan to raise the necessary funds for an EFCA media fund to counter claims made by the business community and others, with the American Federation of Teachers pledging the initial $1 million. AFL-CIO affiliates (each individual union) will endeavor to “voluntarily contribute $2. 50 per member”, to aid the creation of this fund. • Devote resources and campaign in the 34 other states to ensure passage of the Employee Free Choice Act.
SEIU “Change That Works” Campaign The SEIU has launched a mobilizing and lobbying campaign in support of : • An economic recovery plan, an overhaul of the healthcare system, and passage of the Employee Free Choice Act. The SEIU plans to : • Spend approximately $50 million dollars in support of the campaign, with $10 million allocated set aside to mobilize organizers and supporters in key states. • Engage with state campaign directors in 35 states, and create a “war room” in their headquarters in Washington D. C. • Directly lobby Members of Congress to achieve their objectives. 3/16/2018
“Faces of the Employee Free Choice Act” Campaign On March 31, 2009, the AFL-CIO, American Rights at Work, and Change to Win unveiled a new grassroots campaign, entitled the “Faces of the Employee Free Choice Act”: • The campaign kicked off with actors from the cast of “The West Wing” including Martin Sheen, Bradley Whitford, and Richard Schiff, who appeared on Capitol Hill at a media event. • In Colorado, North Dakota, Louisiana, Arkansas, and Pennsylvania, billboards and posters featuring portraits of workers who support the bill were unveiled. • During the month of April, the coalition held approximately 300 events throughout the country. The events included delivering signatures and letters to senator’s district offices, rallies, worker roundtables, letter-writing and phone-banking events, delegation visits, town halls, worksite leafleting and editorial board meetings. • As part of the campaign, American Rights at Work unveiled a new ad, “Fabric of America”, which was shot in an actual flag factory that uses union workers.
110 th Congress Chamber Grassroots The Chamber launched the largest grassroots campaign ever arguing against passage of the Employee Free Choice Act. Specifically, the Chamber: • Sent 20, 832 e-mails and letters • Placed 4, 116 petition signatures • Made 5, 739 phone calls • Aired radio advertisements opposing the Employee Free Choice Act in 51 Congressional Districts (targeting 29 Democrats and 22 Republicans). In addition: • Ads were placed on websites including the Drudge Report, Fox News, Red State, and Town Hall. • There were 37, 248 total contacts with the Hill-this represents a grassroots efforts 7 times larger than any previous grassroots campaign. • Through the Federation program, mobilized 55 Chambers (20, 329 members).
Chamber Grassroots- 111 th Congress Letters to the Hill/Online Testimony/Media Buy Total Letters to 111 th Congress: 53, 084 Online Testimony Center www. workforcefreedomairlift. com/wfi/efca_testimony. htm • The Chamber launched an online testimony center where people can share/post their stories on why EFCA would hurt them as individuals, families or business owners, and have collected over 20 stories. Recent Media-Buy • • Television advertisements aired in in the states of Colorado, Louisiana, Nebraska, North Dakota, and Virginia. Radio ads were aired in the states of Alaska and South Dakota.
Chamber Grassroots (Cont. ) Field Program • • • Events: over 350 around the country Chamber Fly-ins: over 100 Conference Calls: 9 calls with state and local chambers 2 Fly-ins (Coordinated with media campaign) Fly-in #1 (March 9 -10) • Over 170 people came to DC from VA, PA, NE, and LA to meet with their Senators and Representatives. Fly-in #2 (March 31 - April 1) • Over 150 people came to DC from NC, FL, CO, CT, DE, AK, and ND to meet with their Senators and Representatives.
Chamber Grassroots (Cont. ) Right to Work State Letter/Op-Eds/White Paper Right-To-Work State Letter - http: //www. uschamber. com/wfi/090210_righttowork • The Chamber sent a letter to Governors, Senators, and Representative in Right-To. Work States signed by 228 local and state chambers. Printed Media • Tom Donohue, president and CEO of the Chamber wrote an op-ed opposing EFCA during Labor Day weekend in 2008 that was published in 41 newspapers. In addition, Tom Donohue wrote an op-ed in January ’ 09, highlighting the binding arbitration provision in EFCA that reached a combined circulation of 2, 747, 000. White Paper Series • The Chamber published a white paper series: “Responding to Union Rhetoric: The Reality of the American Workplace. ”
110 th Congress U. S. Chamber Radio Ad Pre-vote supporter, Rep. Baron Hill
Three CEOs Concept • CEOs of Whole Foods, Costco, Starbucks launched “Third Way” proposal on March 22 • Led by Lanny Davis, former Clinton aide—close to Obama White House • Davis made clear that EFCA would effectively eliminate the secret ballot and arbitration is non-starter • Immediately dismissed by both sides
“Third Way” Committee for A Level Playing Field For Union Elections Statement of Principles of Reform "Third Way" Legislation: (1) Secret Ballot. Guarantee the right of management and unions to require a secret ballot under all circumstances. (2) Certification and Decertification Treated Equally. Permit management to initiate a decertification campaign through a secret ballot election just as employees and unions are presently able to initiate certification and decertification campaigns. (3) Date Certain for Elections. Guarantee a fixed time period for the secret-ballot election—i. e. , do not permit delays of an established day for a secret ballot to certify or decertify a union. (4) Equal Access to Employees for Campaign Purposes. Level playing field for unions and management to access employees during non-working hours during the campaign period, e. g. , permitting each to make presentations to employees at a neutral location concerning the issue of whether to form a union. (5) Expedited Enforcement and Stricter Penalties. Expedited enforcement for serious and pervasive violations of law by labor and management and stricter penalties for serious and pervasive violations (e. g. , unlawful discharges), including the penalty of mandatory injunctions when appropriate. (6) Preserve Private Collective Bargaining. No mandatory arbitration that dictates contract terms, but stricter penalties and expedited enforcement for violations of good faith bargaining rules, including an expedited timetable to begin bargaining after union certification.
“National Labor Relations Modernization Act” (H. R. 1355) The bill introduced by Rep. Joe Sestak (D-PA) would: • Increase penalties on employers and impose binding interest arbitration, albeit with a small business exemption and more generous timetables than the Employee Free Choice Act. • Amend the National Labor Relations Act so that a union representative would be provided “equal access to the place of employment to campaign in favor of recognition of the representative, including the opportunity to hold an equal number of meetings with individual employees or groups of employees, and an opportunity to make announcements, display signs, and distribute literature, under the same terms and conditions that the employer engages in such activities. ” • Make it an unfair labor practice for an employer not to provide equal access.
110 th Congress The “RESPECT Act” (H. R. 1644/S. 969) The bill introduced by Reps. Rob Andrews (D-NJ), Don Young (R-AK) and Sen. Dodd (D-CT) would: • Amend the National Labor Relations Act (NLRA) by deleting the words, “assign” and “responsibility to direct” from the NLRA’s definition of supervisor. • Reverse a series of National Labor Relations Board (NLRB) decisions, known as the Oakwood cases, that clarified the definition of which employees are “supervisors” and therefore exempt from collective bargaining laws. • Require that, to be classified as a supervisor, an employee must spend the majority of his or her work time performing supervisory duties.
110 th Congress H. R. 6477 -Repeal of Right to Work Law The bill sponsored by Rep. Sherman (D-CA) would: • Prohibit states from enacting “right to work” laws- Repeal Section 14 (b) of the Labor-Management Relations Act. 3/16/2018
The “Lilly Ledbetter Fair Pay Act of 2009” (H. R. 11/S. 181) The House bill introduced by Rep. Miller (D-CA) and the companion bill introduced By Senator Mikulski (D-MD) would: • Amend Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the American With Disabilities Act, and the Rehabilitation Act to impose a new “paycheck rule. ” • Effectively eliminate the statute of limitations period. • Expand the class of people who could sue by allowing anyone who was “affected” by the alleged improper action to sue. • Apply to both intentional discrimination, and disparate impact claims. Status: On January 29, 2009, President Obama signed the bill into law.
The “Paycheck Fairness Act” (H. R. 12/ S. 182) The bill introduced by Representative De. Lauro would: • Permit unlimited punitive and compensatory damages to be awarded, and make it easier to bring class action suits. • Significantly limit defenses to Equal Pay Act claims. • Make it a violation of the Fair Labor Standards Act to prohibit employees from sharing salary information. • Re-impose the discredited Office of Federal Contract Compliance Programs (OFCCP) Equal Opportunity survey and force the OFCCP to use dubious statistical methods in investigating systemic compensation discrimination. Status: On January 9, 2009, the House passed the bill by a vote of 256 -163.
110 th Congress Worker Adjustment and Retraining Notification (WARN) Act Expansion The “Forewarn Act of 2007” (S. 1792), introduced by Sen. Brown (D-OH)/ “Early Warning and Health Care for Workers Affected by Globalization Act” (H. R. 3796), introduced by Rep. Miller (D-CA) • Both bills would lower the threshold so that more small businesses are covered, change the definition of “mass layoff” and plant closing”, increase the notice period from 60 to 90 days, double existing damages, and provide for government enforcement. In addition, the House bill includes a significant expansion of COBRA coverage to those eligible for Trade Adjustment Assistance. Status: On October 31, 2007, the House included most of the provisions of the Committee-passed WARN Act expansion in legislation expanding Trade Adjustment Assistance. The bill passed by a vote of 264 -157.
110 th Congress The “Workplace Religious Freedom Act of 2007” (H. R. 1431/S. 3628) The bill introduced by Rep. Mc. Carthy (D-NY) would: • Make it more difficult for employers to deny an employee’s request to accommodate religious practices. • Make it particularly difficult for employers to deny any requests for days off for religious observation and to enforce dress and appearance codes. • Create more conflict in the workplace by requiring employers to accommodate religious practices that may offend other workers, potentially creating a hostile work environment.
110 th Congress The “Civil Rights Act of 2008” (H. R. 5129/S. 2554) The bill introduced by Rep. Lewis (D-GA) and Sen. Kennedy (D-MA) would: • Eliminate the cap on damages under Title VII and ADA claims. • Amend the Equal Pay Act to limit employer defenses and add compensatory and punitive damages for even unintentional equal pay violations. • Amend the Federal Arbitration Act to void pre-dispute binding arbitration. • Provide that the NLRB may award back pay to undocumented workers fired for their support of union representation in violation of the NLRA.
110 th Congress The “Healthy Families Act” (H. R. 1542/S. 910) The bill introduced by Rep. De. Lauro (D-CT) and Sen. Kennedy (D-MA) would: • Require employers with 15 or more employees who work 30 or more hours a week to provide seven paid sick days to care for themselves and their family’s medical needs, and pro-rated coverage for part-time employees. • Create a right of private action for employees (or their representatives) to sue their employer. • Require employers to provide this leave in addition to their current paid sick leave policies. • Create a benefit that could be used for an employee’s sickness or sickness of child, parent, family member or anyone “whose close association with the employee is the equivalent of a family relationship. ”
The “Working Families Flexibility Act” (H. R. 1274) The bill introduced by Rep. Maloney (D-NY) would: • Provide that when an employer denies an employee’s request regarding a change in working conditions, the employee may pursue a series of meetings, Department of Labor inquiries, Administrative Law Judge hearings, and ultimately, federal court challenges.
110 th Congress Family and Medical Leave Act Expansion Democrats in Congress would like to expand the Family and Medical Leave Act by: • Lowering the threshold for the size of companies covered from 50 or more employees to 25 or more employees, and making part-time employees eligible for leave. • Providing for eight weeks of paid family and medical leave to private and federal employees who take time off for reasons permitted by the Act. • Adding domestic violence as an additional category of leave, and allowing employees covered by the FMLA and federal civil service law to take additional leave for parental activities related to their children’s educational or extracurricular activities. • Creating a grant program to support income replacement to either new parents or eligible individuals responding to family care giving needs. 3/16/2018
The National Commission on State Worker’s Compensation Laws Act of 2009 (H. R. 635) The bill sponsored by Representative Joe Baca (D-CA) would: • Create a commission to “study” the fairness of state workers’ compensation laws. After 18 moths, the commission will report back its findings and recommendations to Congress and the President. • Impose federal oversight and development of federal mandates on state based systems that operate based on the needs of an individual state. • Set back the positive steps states have taken to improve and modernize their workers’ compensation systems based on myriad of innovative tools including cooperative labor-management committees leading to reduced litigation as well as best practices such as utilization review, the adoption of evidenced-based medicine, improved access to high-quality medical treatment, strengthened employee return to work efforts, more effectively compensated injured workers, streamlined claims adjudication, and enhanced efforts to detect and prosecute fraud. 3/16/2018
The “Protecting America’s Worker Act” (H. R. 2067) The bill introduced by Rep. Lynn Woolsey (D-CA) would: • Increase both civil and criminal penalties: The minimum civil penalty for a willful violation currently set at $5, 000 would increase to $8, 000 and the maximum civil penalty of $70, 000 would be raised to $120, 000. • In addition, the bill would create for employers with 25 or more employees, a new penalty structure where civil penalties would range from a minimum of $50, 000 to a maximum of $250, 000 for a worker’s death caused by a willful violation. • Create a right of workplace accident victims to be heard during the investigation. 3/16/2018
The “Protecting America’s Worker Act” (Continued) • Remove the requirement for a workplace death to occur before criminal penalties can attach, and provide for felony charges for an employer’s repeated and willful violations that result in a worker’s death or serious injury. • Upon conviction, criminal penalties currently set at a minimum of six months would increase to ten years for a first offense, and from a minimum of one year to twenty years for any repeated offenses, if a worker dies as the result of willful safety and health violations. • New felony charges of a minimum sentence of five years for a first conviction and at least ten years for any repeated offenses, would be imposed if an employer’s willful violation results in serious bodily injury to an employee.
The “Patriot Employers Act” (S. 829) The bill sponsored by Senator Durbin (D-IL) would: • Designate certain companies as “patriot employers” and make them eligible for preferential tax treatment. These “Patriot Employers” would, among other things: • “Pay at least 60 percent of each employee’s health care premiums. ” • Have a position of “neutrality in employee organizing drives. ” • “Maintain or increase the number of full-time workers in the United States relative to the number of full-time workers outside the United States. ” • Pay a salary, to each employee “not less than an amount equal to the federal poverty level” and • Provide a pension plan.
110 th Congress Narrowing of the Definition of an “Independent Contractor” The following bills have been introduced in this Congress which would impose different administrative requirements and penalties with respect to workers who are classified as independent contractors: • H. R. 5804, the “Taxpayer Responsibility, Accountability, and Consistency Act of 2008” introduced by Representatives Mc. Dermott (D-WA), Neal (D-MA), and Tierney, (D-MA). • H. R. 6111, the “Employee Misclassification Prevention Act” introduced by Representatives Andrews (D-NJ) and Woolsey (D-CA) and the companion bill in the Senate, S. 3648 sponsored by Senators Kennedy (D-MA), Obama (D-IL), and Kerry (D-MA). • S. 2044, the “Independent Contractor Proper Classification Act of 2007” introduced by Senators Obama (D-IL), Kennedy (D-MA), Durbin (D-IL), and Murray (D-WA).
Minority Union Bargaining • On August 14, 2007, the United Steelworkers, the International Brotherhood of Electrical Workers, the Communications Workers of America, the United Auto Workers, the International Association of Machinists, the California Nurses Association, and the Electrical, Radio, and Machine Workers of America filed a petition asking the NLRB to issue a rule recognizing that federal labor law requires employers to collectively bargain with a union that does not have majority status. • Retired law professor Charles J. Morris, who wrote a book on the subject titled “The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace” and 24 other labor law professors submitted a letter with the petition expressing their support for the proposed rule. • On January 8, 2008, the Change to Win Federation filed a separate petition stating that it “agrees with and adopts” the reasoning of the petition filed by the United Steelworkers. 3/16/2018
Potential Regulatory Actions in President-Obama’s Administration-Labor • Re-propose Clinton-era ergonomics regulations: The likelihood of an ergonomics regulation being re-proposed is increased as Congressional re-authorization is now possible with a Democratic majority and President. • Re-initiate rulemaking process for Clinton-era “blacklisting” regulations. • Re-issue “Persuader” interpretative regulations (Clinton “midnight” regulation). • Re-impose discredited Equal Employment Opportunity Survey. • Rescind or revise these other Bush-era regulations: Family and Medical Leave Act clarifying regulations, Office of Labor Policy Risk Assessment rule, OSHA PPE per employee citations rule, and ADA Title III regulation. 3/16/2018
Immigration Reform • The Chamber supports comprehensive immigration reform and has repeatedly called for legislation to: 1) provide for increased national security and control of our nation’s borders including a workable, accurate employment verification system, 2) ensure that our economy has enough workers by creating an efficient new temporary worker program that allows employers to recruit immigrant workers when domestic workers are unavailable as well as reform our existing worker programs (such as H-1 B, EB, H-2 B, and H-2 A); and 3) allow for earned legal status leading to legal permanent residency for qualified, screened undocumented immigrants now in the country after a lengthy test period, the paying of fines, and working towards achieve English proficiency.
110 th Congress Comprehensive Immigration Reform • The “Secure Borders, Economic Opportunity, and Immigration Reform Act” (S. 1639): The bill included increased border security, an employment verification system, a new temporary worker program, and a path to earned legalization for the 12 million undocumented immigrants. During June 2007, the Senate was unable to obtain enough votes to end debate, and effectively put a hold on immigration reform for the rest of 2007. • The “Security Through Regularized Immigration and a Vibrant Economy (STRIVE) Act of 2007” (H. R. 1645): This bill was comprehensive and contained many of the provisions the Chamber supported, but ultimately the House decided not to address immigration in 2007. • The Chamber will continue to push for reforms to fix our dysfunctional immigration laws.
110 th Congress Seasonal Worker Programs • Reform is needed for both the H-2 B seasonal worker and the H-2 A agricultural worker programs. • Support the “Save Our Small and Seasonal Businesses Act of 2007” (H. R. 1843/S. 988): The bill would extend the exemption from the H-2 B cap for return workers, who have previously complied with the program. • Oppose the “Increasing American Wages and Benefits Act of 2007” (S. 2094): The bill would put more burdens and requirements on employers using the H-2 B Program, and would effectively make the program unworkable. • Support H-2 A agricultural worker visa reform (Ag. JOBS) which would reform the H-2 A agricultural visa program while providing a reasonable mechanism for the most experienced but unauthorized agricultural workers to earn legal status subject to strict conditions (S. 340/H. R. 371).
DHS Social Security No Match Regulation/ E-Verify Federal Contractor (s) Regulation • DHS released its “Social Security No Match Letter” regulation in August 2007, which gives employers some guidance as to what they must do when they receive notice from the Social Security Administration when an employee’s name and social security do not match its records. An employer can either fire an employee if the discrepancy cannot be resolved in 90 days or be faced with the risk that the government will charge them with having “constructive knowledge” of employing an unauthorized worker. The rule was scheduled to go into effect on September 14, 2007. However, the issuance of the letters with the changes proposed by DHS was enjoined by Judge Breyer in the Northern District of California. After the Court’s decision, DHS decided to go back to the drawing board. On March 21, 2008, the Department of Homeland Security issued a supplemental proposed rulemaking for the no-match rule. The Chamber submitted comments to this proposal. The final supplemental rule was released on October 28, 2008. The rule is currently before the court. • On June 9, 2008, the Administration issued Executive Order 12989, as amended, followed on June 12 th with a proposed rule, requiring federal contractors to enroll in and use the E-Verify employment verification system. The Chamber filed detailed comments objecting to this proposed rule. The final rule was issued on November 14, 2008. Although the rule has been modified, the Chamber has concerns with requiring federal contractors to enroll in and use the E-Verify employment verification system, and has filed suit to stop implementation.
110 th Congress Border Issues • Chamber endorsed the “Protecting American Travel and Commerce Act of 2007”: Which would make changes to the Western Hemisphere Travel Initiative (WHTI) to ensure that is properly implemented. Many provisions from the Act were successfully included in the Fiscal Year 2008 Consolidated Appropriations Act. The law now mandates that before publishing a final rule implementing the WHTI, the Secretary of Homeland Security must complete a full and thorough cost-benefit analysis of the WHTI. The provisions also require the Secretary of State to develop proposals for reducing the execution fee charged for the passport card-the “low-cost” alternative to a passport.
Visa Issues/Consular Processing • The “Improving America’s Security by Implementing Unfinished Recommendations of the 9/11 Commission Act” (P. L. 110 -53): included provisions that will expand the Visa Waiver Program (VWP), while at the same time increasing security. This change will result in allowing more legitimate business and leisure travelers to visit the U. S. without a visa, while at the same time, enhancing security through an air exit tracking system, creating increased information sharing between countries, and other measures. • Chamber President and CEO Tom Donohue was appointed to the Secure Borders Open Doors Advisory Committee to the Departments of State and Homeland Security, which aims to enhance travel to the United States. The Chamber chairs the Visa Policy and Processing Working Group that intends to ensure that our visa policies make sense for both our physical and economic security. The Advisory Committee recently released a report, which offers recommendations to further guide the departments in finding the correct balance between security and facilitation.
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