California Senator Dianne Feinstein has withdrawn her support for the Employee Free Choice Act (EFCA), according to this editorial in the Oakland Tribune. Because of the recession, the time is not right, according to Senator Feinstein, who stated that she still hopes a union/management compromise is possible.
Senator Feinstein's withdrawal of support may put the nail in EFCA's coffin - at least in its current form. It remains possible that a modified form of EFCA - without the original bill's controversial card-check provision - will still pass in late 2009 or 2010. A revised EFCA will likely replace the card check with faster election periods, giving employers less time to actively campaign against unionization efforts. Even with an apparently watered-down version of EFCA on the way, employers should be prepared to face a radically different set of federal labor laws as soon as January 1, 2010. The Stoel Rives World of Employment will continue to keep an eye on EFCA and bring you updates as they occur.
We expected many changes in federal labor and employment law in 2009 - for the first time in years, Democrats control the White House and both houses of Congress and have the political ability to make significant reforms. However, not much has happened in 2009: we have only significant labor and employment bill signed into law. To be fair, President Obama and the Congress have had other things to worry about: a war or two, a lousy economy, health care and selecting a new White House dog to name a few.
But, the 2009-2010 legislative session is still not over, and Congress may yet pass some of the many labor and employment-related bills still pending. Employers may want to take note, as some of these may become law before the end of the session in 2010. Click on "continue reading" for a complete list.
Click on the bill number to read the full text of each bill.
- S. 181: The Lilly Ledbetter Fair Pay Act. President Obama’s first (and so far only) signed employment legislation, this became law on January 29, 2009. It amends Title VII to state that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new discriminatory paycheck.
Still Pending (as of September 23, 2009):
- H.R. 1409, S. 590: The Employee Free Choice Act. As initially proposed, would allow unions to form via card check, impose mandatory mediation/ arbitration of a first contract and increase penalties for unfair labor practices. Compromises in the works include quicker election periods, equal access to employees by unions, and vote-by-mail.
- H.R. 2819, S. 1244: The Breastfeeding Promotion Act. Would guarantee working mothers the right to breast-feed their children at their workplaces.
- H.R. 12, S. 182: The Paycheck Fairness Act. Would require employers to prove that any disparities in pay between male and female employees are job-related, and would prohibit retaliation against employees who inquire about, discuss, or disclose their own wage or that of another employee.
- H.R. 2151, S. 904: The Fair Pay Act. Would amend the FLSA to prohibit employers from paying employees “in a job that is dominated by employees of a particular sex, race or national origin” a lower rate than employees who work in jobs with equivalent “skills, effort, responsibility and working conditions.”
- H.R. 2808, S. 1227: The Truth in Employment Act. Would allow employers to fire union "salts."
- H.R. 2732, S. 1184: The Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act. Collective-bargaining agreements would establish a "floor" for wages, a minimum standard that employees could then exceed for "those workers who go the extra mile."
- H.R. 1668: The Border Control and Accountability Act. Would suspend or debar contractors found to employ unauthorized aliens, and prohibit the Department of Homeland Security from contracting with companies that do not use E-Verify.
- H.R. 1020, S. 931: The Arbitration Fairness Act of 2009. Would amend the Federal Arbitration Act to prohibit mandatory, pre-dispute arbitration agreements in employment.
- H.R. 2570: The Working Adequate Gains for Employment In Services (WAGES) Act. Would amend the FLSA to gradually increase minimum wage for tipped employees up to $5.50/hour or 70% of minimum wage, not counting tip credits.
- H.R. 2564: The Paid Vacation Act of 2009. Would amend the FLSA to require employers with 100 or more employees to provide two weeks of paid vacation/year; employers with 50 or more to provide one week/year.
- H.R. 3017: The Employment Nondiscrimination Act. Would prohibit discrimination against employees on the basis of sexual orientation or gender identity.
- H.R. 3041: The Living American Wage (LAW) Act. Would index the minimum wage to 15 percent above the poverty line for a full-time worker, or about $8.20 per hour in wages, and would increase the minimum wage every four years to maintain a wage at least 15 percent above the poverty line.
- H.R. 3249, S. 1478: The Strengthen and Unite Communities with Civics Education and English Skills (SUCCESS) Act. Would provide subsides of $1000 per employee for businesses that provide English language courses to their employees, tax breaks for teachers who teach English to immigrants, and double funding for English language programs.
Executive Orders: President Obama has also issued four labor-related executive orders. Click on the title of each to read the order:
- Economy in Government Contracting. Denies federal contractors reimbursement for funds spent on activities designed to persuade employees to join or to not join a union.
- Notification of Employee Rights Under Federal Labor Laws. Requires federal contractors to post a notice informing employees that they have a right either to join or to not join a union.
- Nondisplacement of Qualified Workers Under Service Contracts. Requires federal contractors who assumes the contract from a previous contractor to retain that previous contractor's qualified employees.
- Allowance of PLAs. Allows the federal government to require project labor agreements on large-scale federal construction projects.
We have a favorite new website here at the Stoel Rives World of Employment: Card Checked: The Game (sorry, failblog.org). Card Checked is an online game where you can play a "young and talented tattoo artist living in America where the Employee Free Choice Act (EFCA) has become the law of the land." As a player, you can dodge union organizers, withstand intimidation from pro-union coworkers, and experience the anguish and horror when union thugs threaten your pet cat, Min Min. (Notably, the game includes links to documentation showing that all of these examples of union organizing tactics are real, even down to threatening pets.)
Card Checked is hosted by the Americans for Tax Reform, a conservative group, and its affiliate, the Alliance for Worker Freedom. While we're not endorsing the politics of these groups, their Card Checked site is creative and informative, and presents accurate information on how union organizing will likely be conducted if EFCA's card check and mandatory aribitration provisions become law. For more on EFCA, click here for the Stoel Rives World of Employment's EFCA coverage.
The card-check provision would have allowed unions to organize employees and begin representing them as soon as a majority of employees signed cards saying they wanted a union. Under current law, unions generally form following secret-ballot elections.
Even though the Democrats hold a 60-40 majority in the Senate, several moderate Democrats opposed the card check provision as depriving workers of the right to vote. By abandoning the card check, Democrats have all but assured the passage of some modified form of EFCA this term.
So if card check is out, what will the bill look like? A revised EFCA will replace the card check with faster election periods, giving employers less time to actively campaign against unionization efforts. Even with an apparently watered-down version of EFCA on the way, employers should be prepared to face a radically different set of federal labor laws as soon as January 1, 2010. The Stoel Rives World of Employment will continue to keep an eye on EFCA and bring you updates as they occur.
The NY Times recently ran a story about internal union squabbles, which are hindering organized labor from achieving its political goals. The high profile dispute is between the Service Employees International Union (SEIU) and the National Union of Healthcare Workers (NUHW).
The NUHW broke off from the SEIU and is now trying to take over several bargaining units formerly represented by the SEIU. The dispute is complex, but seems to boil down to a power struggle between the two leaders (Andrew Stern at the SEIU and Sal Roselli with NUHW). Hanging in the balance is over 2 million union members.
What does this mean for employers? If you’re non-union, this could be a good or a bad thing. It could be bad if you have to deal with a 3-way race, where your employees vote for the SEIU, NUHW or no union. If that's the case, you can expect the campaign to be active and aggressive with plenty of unfair labor practice charges. On the other hand, employee-voters could get turned off by the two unions attacking each other and decide not to support either.
What does this mean for the Employee Free Choice Act (EFCA - the card check bill)? If key unions can’t work together, the labor movement may have difficulty getting an effective EFCA passed.
After months of litigation, Al Franken has been declared the winner of the Senate race in Minnesota. He will be the 60th Democrat in the Senate, which could enable the Democrats to override a filibuster in the Senate.
So the question becomes where does Senator Franken stand on the Employee Free Choice Act (EFCA)? Just as a reminder, this is the bill, which gives unions the right to organize by showing that a majority of employees signed cards and it basically does away with secret ballot elections.
Here is Senator Franken's answer:
Ouch. He doesn't sugarcoat it, does he? Senator Franken is a big supporter of EFCA. So, what does this mean? It makes it more likely that Democrats will push the original bill forward in the Senate or will not compromise (too much) on the original terms. Stay tuned. The EFCA drama is likely to play out in 2009.
The proposed Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act, introduced in Congress last week, would change federal labor law to allow employers to pay higher wages to selected union employees. Sounds like a no brainer, right? Guess again.
The Act was introduced in the Senate by Sen. David Vitter (R-La.) and in the House by Rep. Tom McClintock (R-Calif.) Under the RAISE Act, collective-bargaining agreements would establish a "floor" for wages, a minimum standard that employees could then exceed for "those workers who go the extra mile." Under current law, an employer must first bargain with the union and obtain the union's agreement before rewarding individual achievement. Click here for an explanation of the RAISE Act from conservative think tank the Heritage Foundation.
Who would oppose such a law? Unions. Unions are adamantly opposed to allowing employers the discretion to reward individual efforts (one could accurately state that unions oppose allowing employers any discretion whatsoever, but that's a topic for a different post). Expect the unions to quietly put pressure on the Democratic majority to kill this bill. In our humble opinion, the RAISE Act is primarily an attempt by Congressional Republicans to bait unions into embarrassing themselves by opposing a bill that aims to give their own members higher pay. Undoubtedly, this will also play into the Republicans' strategy of opposing the Employee Free Choice Act. But, given the current Democratic majority in Congress, don't expect RAISE to fly.
If passed in its proposed form, the Employee Free Choice Act ("EFCA") will revolutionize federal labor laws by allowing unions to organize without a secret-ballot election. Other onerous provisions include shortening the time to negotiate a first contract and, if the parties do not agree, allowing an arbitrator (a judge) to decide the terms of the first contract. While Congress is debating several compromises over EFCA, just about any version of the law will tilt the playing field sharply in favor of labor unions. Union and non-union employers must be prepared to face new organizing tactics in light of EFCA and the unions’ sophisticated use of the Internet.
Please join Labor & Employment attorneys Victor Kisch and Dennis Westlind for a seminar about EFCA and the do’s and don’ts for remaining union-free in the new environment. We will also discuss other likely changes to labor laws. The seminar will cover:
- How will EFCA make it easier for unions to organize? What can a non-union employer do under EFCA?
- How do unions organize in the age of Facebook, MySpace, Twitter, chat rooms, websites, text messages, email and so on?
- Effective no solicitation policies;
- What key issues make a work force vulnerable to union organizing? How can an employer address employee concerns?
- Salts -- If union organizers seek employment at your company, what can you do?
Thursday, June 11, 2009
Complimentary (lunch included)
Stoel Rives LLP
We will validate parking for most nearby parking garages.
Space is limited! Click here to register online by June 9.
The latest news on the Employee Free Choice Act (EFCA) is a possible compromise in which EFCA's card-check provision is replaced by a "quickie election" procedure - where an election must be held a very short time (a week to three weeks) after the union requests one from the National Labor Relations Board (NLRB). Another possible compromise provision would be to allow unions equal time with employees if employers choose to hold "captive audience" meetings with employees during a campaign. Both proposals would allow for elections in place of the proposed card check provision, but would sharply curtail employers' ability to express their views to their employees. To learn more, read this article from the Washington Post.
Recently converted Democratic Senator Arlen Specter continues to hold the EFCA spotlight: according to this article in the Pittsburgh Post-Gazette, there is speculation afoot of a deal between Senator Specter and the AFL-CIO and in which Senator Specter would support EFCA in exchange for labor's full backing the 2010 Senate race. If Specter changes his position and backs EFCA, it might pass without substantial amendments.
To read more about EFCA, check out the Stoel Rives World of Employment's EFCA Coverage.
More news on the Employee Free Choice Act (EFCA): last week, Pennsylvania Senator Arlen Specter, long considered a critical swing vote for both sides, came out in opposition to EFCA. Click here to read the New York Times' coverage. Specter's "no" means that the pro-EFCA senators will fall short of the 60 votes they need to overcome an expected Republican filibuster.
You know the Republicans are serious when they trot out Joe the Plumber. And they have, according to the Huffington Post, in an effort to defeat EFCA. We're not sure if Joe's support is going to matter much, but at least it increases the entertainment value.
According to the Washington Post, executives from three progressive employers, Costco, Whole Foods and Starbucks, have offered a compromise of sorts on the Employee Free Choice Act (EFCA). Their proposed compromise would drop the card-check and mandatory arbitration provisions of the act, but give unions greater access to employees and guarantee union elections within a specific time period. Click here to read the Post's article on the proposal.
The compromise would remove from EFCA the two provisions that give employers the most heartburn: a provision that would allow employees to form a union without a secret-ballot election if a majority sign pro-union cards, and one that would impose binding arbitration if employers and unions fail to reach a contract after 120 days. However, the compromise would keep EFCA's increased penalties for companies that retaliate against workers before union elections or refuse to engage in collective bargaining, would set a fixed period in which an election must be held, limiting the delays that give employers time to campaign, and would provide unions equal access to workers before elections -- for instance, by allowing organizers to address workers on a lunch break on company premises.
Don't expect either side to jump on the bandwagon soon. Unions are committed to the card-check and arbitration provisions, and anti-EFCA forces will not favor giving unions on-site access to employees anytime soon. But, as the EFCA fight goes on, creative proposals like this one might be what is needed to break a Senate filibuster. Keep watching the Stoel Rives World of Employment for more EFCA news and updates.
The Employee Free Choice Act (EFCA), which will amend the National Labor Relations Act to make it easier for unions to organize, was introduced in Congress yesterday. Separaste bills were introduced by Sen. Tom Harkin (D-Iowa), member of the Senate Health, Education, Labor and Pensions Committee, and Rep. George Miller (D-Calif.), chairman of the House Education and Labor Committee. Want to know more about EFCA? Check out our continuing coverage here at the Stoel Rives World of Employment.
Pro-EFCA forces are gathering. The SEIU has put out this fancy new ad for your viewing pleasure (seriously, we got a big kick out of this one! Some say this is over the top, but we respect that.)
We recently reported that President Obama nominated California Representative Hilda Solis as our next Secretary of Labor. It now appears her nomination is in serious trouble. The Senate delayed confirmation hearings after finding out that Solis' husband owed some back taxes on his auto repair business. Whoops.
Conservatives opposed to Solis' nomination - and her support for the Employee Free Choice Act (EFCA) - are sensing weakness and are gearing up for a major opposition to her nomination. Labor unions, on the other hand, are calling for her to swiftly be confirmed.
Conservatives might want to be careful what they ask for. If Solis' nomination is withdrawn, one of the front runners to replace her is Andy Stern, head of the Service Employees International Union. It's pretty safe to say he supports EFCA.
According to yesterday's Wall Street Journal, the Employee Free Choice Act (EFCA) is not likely to become law in the first 100 days of the Obama Administration. Because Republicans are threatening a filibuster, congressional Democrats are likely to instead focus their early efforts on two other low-hanging fruit: the Lilly Ledbetter Fair Pay Act, which would extend the statute of limitations under civil-rights laws for bringing suits against employers over pay; and the Paycheck Fairness Act, which would strengthen remedies under the Equal Pay Act of 1963 for women.
If passed, EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election. It is expected to drastically increase union organizing and unionization rates.
Threats of a Senate filibuster and a presidential veto prevented EFCA's passage in 2008, but the labor movement and congressional Democrats hoped that a filibuster-proof majority in the Senate would allow its passage in 2009. We're not ready to write EFCA off just yet - what remains to be seen is if a compromise version will sufficiently appease the act's proponents while weakening opposition. Stay tuned to the Stoel Rives World of Employment for more updates.
As reported earlier in the Stoel Rives World of Employment, the Employee Free Choice Act (EFCA) will be a high priority for Congress and President-Elect Obama in 2009. The EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election. If passed, it is expected to drastically increase union organizing and unionization rates.
Two things prevented EFCA from passing into law back in in 2007 - an almost certain veto from President Bush, plus opposition from the Republican minority in the United States Senate. 51 Senators voted for cloture on EFCA - 50 Democrats (all except one who was absent) plus Pennsylvania's Arlen Specter; however, 60 votes are needed to end debate and bring the bill to a vote. Now that the Democrats appear on the cusp of controlling 59 Senate seats, assuming Arlen Specter maintains his support for EFCA, there's nothing to stop the bill from passing, right?
Not so fast, warns FiveThirtyEight.com's Nate Silver. Arkansas Democrat Blanche Lincoln has now indicated that she's not so keen on EFCA and might vote no. Her no vote would leave the Democrats one vote short of stopping a Republican filibuster. Click here to read the rest of Nate Silver's fascinating analysis of EFCA in the Senate. And don't forget to keep following the Stoel Rives World of Employment for more EFCA updates.
Today's New York Times is reporting that President-Elect Barack Obama will nominate California Representative Hilda Solis as his administration's Secretary of Labor, the cabinet-level position that oversees the Department of Labor.
John Sweeney, head of the AFL-CIO (a coalition of labor unions) praised the appointment of Solis to the position. And not without good reason: Solis has been a champion of the Employee Free Choice Act (EFCA), which labor unions have made their #1 legislative priority for 2009. The EFCA would , among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election. If passed, it is expected to drastically increase union organizing and unionization rates.
Of course, if the unions are happy about the Solis pick, you can bet some employers are not. As reported in the Times, the U.S. Chamber of Commerce, a pro-employer group, expressed "disappointment" over the selection of a labor secretary that supports EFCA, but promised to work with Solis.
The selection of Solis should not come as a surprise: President-Elect Obama has voiced his support for EFCA and other pro-employee legislation, and was expected to select a like-minded labor secretary. This selection does not, however, mean that EFCA will pass without a fight. Don't be surprised if the Republicans use their filibuster power either to delay its passage or to win some pro-employer concessions before allowing it to pass.
In case you missed it, Barack Obama will be the next President of the United States! And both houses of Congress will be controlled by Democratic majorities. Wondering what this will mean for labor and employment law? So are we! But we've gone a step further and made some educated guesses on what to watch out for.
- The Employee Free Choice Act (EFCA). The EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election. If passed, it is expected to drastically increase union organizing and unionization rates. The Stoel Rives World of Employment will be watching this one very closely.
- The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT). No, it's not an Aretha Franklin song. The "RESPECT" Act would reverse the NLRB’s recent rulings that clarified the requirements to be a "supervisor" under federal labor law. RESPECT would dramatically increase the number of employees who could unionize. Sock it to me!
- The Paycheck Fairness Act and the Equal Remedies Act. These statutes—competing versions to address the same issue—would reverse the U.S. Supreme Court’s recent Ledbetter ruling addressing the statutes of limitations under Title VII. Both would enable plaintiffs to press viable claims going back much further in time.
- The Civil Rights Act of 2008. The proposed amendments to the civil rights laws would make numerous changes including removal of damage caps on sex, religion, and disability discrimination, as well as retaliation lawsuits.
- The Employment Non-Discrimination Act (ENDA). ENDA would amend Title VII to add sexual orientation as a protected class.
- The FOREWARN Act. This amendment to WARN would increase the notice period for plant closings or mass layoffs from 60 to 90 days.
- Minimum wage. President-elect Obama has also expressed his support for raising the minimum wage to $9.50 per hour by 2010.
- Family and Medical Leave Act (FMLA). President-elect Obama has also indicated his support for expanding the Family and Medical Leave Act to cover companies with 25 or more employees (currently 50).