Legislative Update - Spring 2010
It has been an eventful last few months on Capitol Hill with the election of Scott Brown to the Massachusetts Senate seat vacated by the passing of Ted Kennedy and the passage of the health care bill (The Patient Protection and Affordable Care Act), which President Obama signed into law on March 23, 2010. The lost seat for Democrats means their filibuster-proof supermajority of 60 Senators is now gone. As this will likely have far-reaching ramifications on several of the bills we have discussed previously, we will revisit some of them in addition to reporting on new developments since our last Newsletter.
Employee Free Choice Act (EFCA)
EFCA proponents had been pointing to early 2010 as a likely time to revitalize the efforts to draft a new bill. However, those hopes were contingent on the health care reform situation being resolved, as well as the Democrats maintaining a supermajority in the Senate. As neither prerequisite has materialized, the EFCA is in real danger of not ever becoming law. That said, union advocates are not likely to give up the fight just yet. In fact, many analysts are predicting a shift in such advocates’ focus from legislative action to overturning precedent from National Labor Relations Board decisions with a newly appointed pro-union Board. Some of the issues being targeted include:
Narrowing the definition of “supervisor” under the National Labor Relations Act (NLRA) so that more employees will be eligible for union representation.
Extending co-worker representation to non-union employees in any employer investigatory interview that could lead to discipline.
Barring a decertification petition within 45 days of an employer’s voluntary recognition of a union.
Foreclosing an employer from designating “at-will” employees as permanent replacements for striking employees.
The AFA (S. 931, H.R. 1020) would make all predispute arbitration agreements unenforceable as they pertain to employment and civil rights causes of action. Similar to the EFCA, momentum for the AFA has been slowed significantly by Scott Brown’s victory in Massachusetts. Not only has the bill received staunch criticism from many Republican members of Congress, it will now continue to idle in place as Democratic members of Congress scramble to repair the health care reform situation while still addressing the ever-dormant economy. Although the AFA remains a potential threat to an employer’s ability to utilize alternative dispute resolution in employment discrimination matters, its chances of passage have been greatly diminished.
While it may seem that no employment legislation will ever be passed again, there is optimism surrounding the LIDA. A bipartisan effort, LIDA (S. 2832) was recently introduced to the Senate by Senators Jeff Bingaman, D-N.M., Johnny Isakson, R-Ga., and Herb Kohl, D-Wis. This non-controversial bill would require all defined contribution plan sponsors to provide workers with an annual statement detailing that individual’s projected monthly income during retirement. The bill is designed to encourage greater participation in defined contribution plans, such as 401(k)s, by increasing information about individuals’ future retirement situations.
Under the proposed law, all defined contribution plans subject to ERISA would be required to provide the annual statement. Although plan sponsors would face penalties for failing to provide the statements, the U.S. Department of Labor would provide model disclosures and issue tables for employers to use to calculate annuity equivalents. Employers using the model disclosures and prescribed assumptions would be immune from any penalties.
On December 15, 2009, Representative Luis Gutierrez, D-Ill., introduced H.R. 4321. The bill seeks to create a legalization program for qualified undocumented immigrants and their spouses and children. To be qualified, undocumented immigrants must establish that they immigrated prior to December 15, 2009, and that they have either worked, volunteered, attended school, or performed military service since such immigration. Any criminal record will automatically disqualify an applicant. Approved applicants will then be granted a six-year visa, allowing them to travel and work without fear of deportation. At the end of the six-year visa, the immigrants may apply for permanent resident status and eventual citizenship. In addition to reforming the visa program, the bill calls for increased border security and a new employment verification system to better ensure that only authorized workers are hired by employers. The employment verification system is highlighted by the following features:
Establishes serious criminal penalties for knowingly hiring unauthorized aliens.