Here We Go Again: A Flurry of Activity Marks the Beginning of 2013
In 2013, Congress wasted no time introducing various labor and employment related bills in both houses, including a few interesting new initiatives, but consisting mostly of old "friends" that failed to see the light of day during Congresses past. The question remains whether we can expect more of the same gridlock and intractability that we’ve seen in the past four years (we think this is most likely), or whether some legislation will slip under the radar while the parties battle over the economic issues that have remained front and center over the past few Congressional sessions.
NLRB FREEZE ACT (S. 180); ADVICE AND CONSENT RESTORATION ACT (S. 188, H.R. 557); RESTORING THE CONSTITUTIONAL BALANCE OF POWER ACT (S. 190)
CURRENT STATUS OF LAW: On January 4, 2012, President Obama appointed three new members (of a total of five) to the National Labor Relations Board ("NLRB" or the "Board"), purportedly as "Recess" appointments. The President indicated that the Senate was then in Recess, while the Senate itself indicated that it was still "in session" because it was operating pursuant to a unanimous consent agreement of Senators, which provided that the Senate would meet in pro-forma sessions every three business days from December 20, 2011, until January 23, 2012. By making these appointments during a "Recess," the President was able to avoid the Senate confirmation process, and the potential for a filibuster of his appointments.
Since these recess appointments, the Board has decided a significant number of cases arising under the National Labor Relations Act ("NLRA"), despite questions about the legitimacy of the recess appointment and its authority. One of the employers involved in such a case, Noel Canning, a soda-bottling company, challenged a Board ruling against it on the grounds that the recess appointments were invalid and thus the Board had no authority to issue these opinions. On January 25, 2013, the D.C. Circuit issued a decision agreeing with Noel Canning and throwing into question all of the Board’s decisions issued since the Recess appointments on January 4, 2012. This issue is hardly resolved, though, and will likely end up before the Supreme Court.
WHAT WOULD CHANGE: In response to the D.C. Circuit’s decision, both houses of Congress were quick to introduce the following legislation as early as January 30, 2013.
- The NLRB Freeze Act would delay the enforcement of any rulings of the Board until there is a final resolution of the pending lawsuits challenging the Board’s authority.
- The Advice and Consent Restoration Act (and its companion bill in the House) would prevent the recess appointees from receiving salaries and the Board from taking agency actions until the lawsuits are resolved.
- The Restoring the Constitutional Balance of Power Act would prohibit the use of federal funds to support certain of the Board’s activities, including those activities that require a quorum and occur on or after January 4, 2012. In an interesting inclusion, this Act also prohibits the transfer of funds from the Federal Reserve for use by the Consumer Financial Protection Bureau (CFPB) to carry out activities that are authorized only upon the confirmation of a Director of the Bureau, which relates to CFPB Director Richard Cordray’s January 2012 recess appointment, which has also been challenged in the D.C. Circuit. For further details on the potential repercussions for the CFPB, see this article from our colleagues in Troutman Sanders LLP’s Financial Services Litigation group.
WHY YOU CARE: This legislation itself is noteworthy in that it would potentially stall any enforcement activity or additional actions by the Board while the question of the Board’s legitimacy is resolved. It would also provide some breathing room for employers already engaged in proceedings before the Board and COULD stave off future decisions along the lines of those the Board issued in 2012 on social media, at-will statements in employee handbooks and more. In other words, this legislation itself will not directly affect most employers, but it is part of an ongoing battle over the legitimacy of the Board’s recent action, which could be a game-changer.
LIKELIHOOD OF BECOMING LAW: The chances are not good, although it became somewhat better for the House bill when President Obama submitted two of the three appointees (the two most controversial) for reappointment in mid-February, upping the ante. With the President in opposition, however, there’s no chance this will become law. This issue will be hashed out judicially.
NATIONAL RIGHT-TO-WORK ACT (S. 204)
CURRENT STATUS OF LAW: The NLRA and the Railway Labor Act (RLA) contain provisions that permit employers, pursuant to a collective bargaining agreement, to enter into union security agreements. These provisions do not require employees to join a union, but do require non-union employees to pay agency fees (their proportionate part of the union’s proven bargaining costs) as a condition of employment. However, the NLRA gives states the authority to enact right to work laws that prohibit these union security agreements. Twenty-four states have passed right-to-work laws, including the recent additions of Michigan and Indiana in 2012, which were notable additions due to their traditional pro-union cultures.
WHAT WOULD CHANGE: The National Right-To-Work Act would amend the NLRA and the RLA to repeal the provisions allowing for union security agreements, effectively making this a "right-to-work" nation.
WHY YOU CARE: There is no doubt that right-to-work laws make it more difficult for unions to operate. If you are concerned about unionization of your workforce, passage of this legislation would probably be welcomed. If your company has a unionized workforce and a collective bargaining agreement with a union security agreement, this arrangement would need to change.
LIKELIHOOD OF BECOMING LAW: Momentum is with right-to-work proponents, and this bill has already reported out of committee, but even if this legislation were to pass both houses of Congress, it seems unlikely that President Obama, who is sticking to his guns with regard to his NLRB appointments, among other controversial issues, will provide his signature.
THE LABOR RELATIONS FIRST CONTRACT NEGOTIATIONS ACT OF 2013 (H.R. 169)
CURRENT STATUS OF LAW: After a union is certified, the NLRA requires the employer and the union representative to bargain in good faith to come to an agreement governing the terms of employment. According to critics, however, the remedy for bad faith bargaining has few teeth. Additionally, there are no time limits on bargaining over a first contract. A legitimate impasse, not due to bad faith, will allow an employer to implement its best and final offer.
WHAT WOULD CHANGE: This bill would require employers and union representatives, when they reach a legitimate impasse, to submit to mediation and ultimately binding arbitration. Even more, if the parties have not signed a collective bargaining agreement within 60 days of the union’s certification as the employees’ bargaining representative, the bill would direct the parties to jointly select a mediator to assist in the process. If an initial contract is not negotiated within 30 days after the selection of the mediator, either party would have the option of transferring the matter to the Federal Mediation and Conciliation Service ("FMCS") for binding arbitration.
WHY YOU CARE: Again, this legislation would give union representatives much more bargaining power.
LIKELIHOOD OF BECOMING LAW: We have seen this legislation numerous times before. The bill is not likely to fare any better in this Congressional session, and will likely die in committee.
THE EMPLOYEE PAYCHECK PROTECTION ACT (H.R. 175)
CURRENT STATUS OF LAW: On June 21, 2012, the Supreme Court decided Knox v. Service Employees International Union, Local 1000, which held that every time a public sector union imposes a special assessment or dues increase, it must issue a new Hudson notice. A Hudson notice is a notice explaining how union imposed fees are calculated and to which nonmembers can object, resulting in arbitration. The Court also held that the union could not require nonmembers to pay the increased amount unless the nonmembers consent.
WHAT WOULD CHANGE: The language of this bill reflects the holding of Knox, but does not limit its application to the public sector; instead, it covers "labor organizations" generally. In other words, it would require all labor organizations to provide a Hudson notice prior to imposing or collecting dues or fees, and to obtain consent from nonmembers.
WHY YOU CARE: This legislation would make it somewhat more difficult for unions to fund their own operations and agendas. If you worry about unionization of your workforce, or have a unionized workforce, this is a drop in the bucket, but one that favors the employer.
LIKELIHOOD OF BECOMING LAW: This bill died in committee last session. The likelihood of it meeting a different fate this time around is slim.
THE PARENTAL BEREAVEMENT ACT OF 2013 (H.R. 515, S. 226)
CURRENT STATUS OF LAW: The Family and Medical Leave Act ("FMLA") provides for up to 12 (and, in specific situations, up to 26) weeks of unpaid leave in well-defined circumstances. The FMLA guarantees job restoration after qualified leave and prohibits an employer from interfering with or retaliating against employees for exercising rights guaranteed under the FMLA. While the FMLA does not currently require employers to provide leave for the death of a child, some state laws do require such leave.
WHAT WOULD CHANGE: This bill would expand the FMLA’s coverage to include leave due to the death of a child, including adult children.
WHY YOU CARE: While you may have a bereavement policy in place, it is highly unlikely that it allows for anything close to 12 weeks of leave. This provision would be a significant change for businesses.
LIKELIHOOD OF BECOMING LAW: It is highly unlikely that this bill will go anywhere. Its chances are the same as they were the last Congress, where it met a quiet death in committee.
TO DIRECT THE SECRETARY OF LABOR TO REVISE REGULATIONS CONCERNING THE RECORDING AND REPORTING OF OCCUPATIONAL INJURIES AND ILLNESSES UNDER THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (H.R. 170)
CURRENT STATUS OF LAW: The existing regulations promulgated pursuant to the Occupational Safety and Health ("OSH") Act require employers to report to the Occupational Safety and Health Administration ("OSHA") within eight hours any work-related incident resulting in the death of an employee or the in-patient hospitalization of three or more employees. In May 2013, OSHA is scheduled to change two aspects of recordkeeping and reporting requirements, as described in our article on these developments. See our article for more details.
WHAT WOULD CHANGE: This legislation would direct the Secretary of Labor to dramatically expand employer occupational injury and illness reporting requirements under the OSH Act. The resulting regulation would require "site-controlling employers" to maintain a log of all recordable injuries and illnesses suffered by all workers at the site, including contractors, temporary workers and leased workers. The bill defines a "site-controlling employer" as "the employer that has primary control over the work on a particular work site and supervises the employees on a day-to-day basis on a particular work site."
WHY YOU CARE: This recordkeeping requirement differs significantly different from the current approach by placing the burden on employers at a particular site to report all incidents at the site, regardless of whether their employees were injured or even involved.
LIKELIHOOD OF BECOMING LAW: This bill is one that fared poorly in previous sessions. It is unlikely it will see the light of day this time around.
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