Employment

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Employment Labor Legislation in the 110th
Congress

• Jason Straczewski
• Director, Employment Labor Policy
• National Association of Manufacturers
• jstraczewski_at_nam.org
• 202-637-3129

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A New Day in Congress

• Senate Health, Education, Labor Pensions
  Committee
• Sen. Edward Kennedy (D-MA), Chair
• Sen. Michael Enzi (R-WY), Ranking Member
• Senate Subcommittee on Employment Workplace
  Safety
• Sen. Patty Murray (D-WA), Chair
• Sen. Johnny Isakson (R-GA), Ranking Member
• House Education Labor Committee
• Rep. George Miller (D-CA), Chair
• Rep. Howard Buck McKeon (R-CA), Ranking Member
• House Subcommittee on Health, Employment, Labor
  Pensions
• Rep. Robert Andrews (D-NJ), Chair
• Rep. John Kline (R-MN), Ranking Member
• House Subcommittee on Workforce Protections
• Rep. Lynn Woolsey (D-CA), Chair
• Rep. Joe Wilson (R-SC), Ranking Member

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NAMs Legislative Priorities

• H.R. 800/S. 1041, the Employee Free Choice Act
  (EFCA)
• H.R. 1542/S. 910, the Healthy Families Act
  (HFA)
• Family Medical Leave (FMLA) Expansion
  Proposals
• H.R. 2831/S. 1843, Ledbetter Fair Pay Act

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EFCA or Card Check

• Historical Context
• 1935 Passage of the Wagner Act (National Labor
  Relations Act)
• First federal law granting collective bargaining
  and union recognition rights to most private
  sector workers
• 1947 Taft-Hartley Amendments passed
• Bipartisan override of President Trumans veto
• House 331 to 83
• Senate 68 to 25
• Restored balance to labor law, for example
• Established unfair labor practices for unions
• Recognized employer free speech

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EFCA or Card Check

• 1970s Labor Law Reform
• Union density had dropped below 25 percent
  nationally
• Comprehensive proposal included
• Equal access to employer premises
• Expanded NLRB
• Expedited elections
• Expanded damages for employer intimidation
• Double back pay
• Mandatory injunctions (employers guilty until
  proven innocent)
• House passed 257 to 163
• Senate held filibuster by 2 votes

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EFCA or Card Check

• What does the Employee Free Choice Act Do?

Employer must recognize union as legal
representative and bargain
NLRB reviews signed cards and schedules election
If majority vote for a union, then . . .
Paid union organizers collect signatures
NLRB counts ballots, majority rules
NLRB conducts secret-ballot elections
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EFCA or Card Check

• What does the Employee Free Choice Act Do?

Employer must recognize union as legal
representative and bargain
NLRB reviews signed cards and schedules election
If majority vote for a union, then . . .
Paid union organizers collect signatures
NLRB counts ballots, majority rules
NLRB conducts secret-ballot elections
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EFCA or Card Check

• The Employee Free Choice Act would also provide
  for mandatory interest arbitration of first
  contracts
• Unreasonably short time periods
• Mediation after 90 days
• Arbitration after 30 days of mediation
• Government sets contract terms
• Employer and union need not agree
• Workers need not agree (no contract vote)

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EFCA or Card Check

• The Employee Free Choice Act would also expand
  remedies for unions and employees who organize
  
• Mandatory injunctions (Employers guilty until
  proven innocent)
• Civil penalties (up to 20,000 per occurrence)
• These remedies are geared against employers only
• Ignores the remedial purpose of National Labor
  Relations Act

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What are Supporters of EFCA Saying?

• Current NLRA election process is unfair and
  secret ballot elections leave workers more open
  to intimidation and coercion from employers.
• Employers hire union busting law firms to guide
  them during the election process and illegally
  fire workers to influence election outcomes.
• The EFCA will create better economic prosperity
  for workers and level the playing field for
  organizing efforts.

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Current Status of EFCA

• H.R. 800, introduced by Rep. George Miller (D-CA)
  passed the House of Representatives on March 1 by
  a vote of 241-185.
• 13 Republicans voted in favor
• 2 Democrats voted against
• S. 1041 was introduced by Sen. Kennedy (D-MA) on
  March 29. The Senate HELP Committee has held a
  hearing on the issue.
• Senate held a procedural vote on House-passed
  H.R. 800 on June 26 that failed 51-48 (60 votes
  were necessary).

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The Healthy Families Act

• S. 910, the Healthy Families Act (HFA) was
  introduced on March 15 by Sen. Edward Kennedy
  (D-MA) with 22 co-sponsors
• HFA was the subject of a Senate HELP Committee
  hearing in late January
• H.R. 1542, the Healthy Families Act was
  introduced in the House by Rep. Rosa DeLauro
  (D-CT) with 28 co-sponsors

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The Healthy Families Act

• Require employers with 15 or more employees to
  provide 7 days of paid sick leave for employees
  working 30 or more hours per week
• Required a pro-rated number of days or hours of
  paid sick leave for employees who work less than
  30 hours per week (or less than 1,500 hours per
  year)
• Allow employees to take leave for their own
  medical condition, doctor appointments, or
  preventative or diagnostic treatment. They could
  also use the leave to care for a family member
  with comparable needs
• Calculate leave on an hourly basis or in the
  smallest increment that the employers payroll
  system uses
• Allow employers who provide paid sick leave that
  meets the requirements of this Act to not be
  required to modify such policies
• Prohibits employers from eliminating, reducing or
  redesigning existing leave policies in effect at
  the time of enactment and
• Provide for the Secretary of Labor to enforce
  this Act and seek back pay, wages, benefits and
  other equitable remedies against those in
  violation of the Act.    

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Challenges with the Healthy Families Act

• Employees are a manufacturers greatest asset.
• Employers understand the needs of their workforce
  and what the market they compete in can support.
• A one-size fits all approach by the government
  will restrict the ability of employers to be
  flexible and innovative with their workforce in
  order to compete in a global economy.
• Establishes an un-funded mandate on employers.
• Restricting flexibility with regard to benefits
  will harm employers ability to attract and retain
  talented, skilled workers.

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The FMLA Expansion Efforts

• DOL published a Request for Information on the
  implementing regulations for the FMLA on December
  1, 2006.
• NAM submitted detailed comments on behalf of its
  members on February 16, 2007. Those comments
  were derived from
• Direct feedback from our members
• Previous comments testimony delivered in 2002
  2005
• Survey of member companies conducted January 2007
• Over 400 companies representing over 900,000
  employees responded
• NAMs comments focused on three specific areas of
  concern
• Definition of a serious health condition
• Medical certifications
• Abuses of intermittent medical leave

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The FMLA Expansion Efforts

• H.R. 1369 (Rep. Maloney, D-NY), the Family and
  Medical Leave Expansion Act
• S. 1681 (Sen. Dodd, D-CT), the Family Leave
  Insurance Act
• S. 1649 (Sen. Feingold, D-WI), the Military
  Family Support Act
• S. 1885 (Sen. Obama, D-IL) the Military Family
  Job Protection Act
• S. 1894 (Sen. Dodd, D-CT) the Support for Injured
  Service Members Act
• S. 1898 (Sen. Clinton, D-NY) the Military Family
  and Medical Leave Act

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The FMLA Expansion Efforts

• On July 25, the Presidents Commission on Care
  for Americas Returning Wounded Warriors issued
  six recommendation to improve support and care
  for injured service members. The Commission is
  co-chaired by Bob Dole and Donna Shalala.
• Recommendation 4 Significantly strengthen
  support for families by amending the Family and
  Medical Leave Act to allow up to six months
  leave for a family member (spouse or parent) of a
  service member who has a combat-related injury
  and meets the other eligibility requirements of
  the law.

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Ledbetter Fair Pay Act

• H.R. 2831, the Lilly Ledbetter Fair Pay Act
  passed the House of Representatives on July 31 by
  a vote of 225-199.
• Touted as a narrowly-tailored bill to overturn a
  May 29 Supreme Court ruling of Ledbetter v.
  Goodyear, this legislation would actually
  eliminate the statute of limitations for
  employees to file pay discrimination claims.
• Would go beyond Title VII and cover Age
  Discrimination, the Rehab Act and the ADA.
• S. 1843, the Fair Pay Restoration Act was
  introduced by Sen. Kennedy (D-MA) as well as
  Sens. Snowe (R-ME) and Specter (R-PA).

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Other Legislation NAM is Monitoring

• S. 1244/H.R. 2049 the Protecting Americas
  Workers Act
• Introduced by Sen. Kennedy (D-MA) and Rep. Lynn
  Woolsey (D-CA)
• Increased protections for whistleblowers
• Increased civil and criminal penalties for
  violators
• Instructs DOL to promulgate a standard requiring
  employers to pay for PPE
• H.R. 3195/S. 1881 the ADA Restoration Act
• Sponsored by Sens. Harkin (D-IA) and Specter
  (R-PA) and Reps. Hoyer (D-MD) and Sensenbrenner
  (R-WI).
• Redefines the term disability as a physical
  or mental impairment and abolish the requirement
  that an impairment substantially limit one or
  more major life activities.
• Unlike other federal anti-discrimination laws,
  the proposed legislation would eliminate the
  requirement that a plaintiff establish that
  he/she is a qualified individual.

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Other Legislation NAM is Monitoring

• H.R. 493/S. 358, the Genetic Information
  Non-Discrimination Act (GINA)
• A solution in search of a problem
• Concerned about flow of health information rather
  than the deliberate intent to use the information
  to discriminate
• Business necessity
• No federal preemption
• H.R. 1644, the RESPECT Act
• Amend the NLRA definition of who is a
  supervisor
• Overturns settled NLRB case law in this area
• Currently, the NLRA states that employees not
  supervisors may join a union
• H.R. 2015, the Employment Non-discrimination
  Act (ENDA)
• Reintroduced 2002 version now contains
  protections for trans-gendered individuals.
• Concern about requirements for a separate
  restroom/locker room facilities
• ERISA preemption

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How You Can Take Action

• Http//www.nam.org/manufacts
• Employee Free Choice Act
• Visit http//www.nam.org/efcatoolkit
• Coalition for a Democratic Workplace
  http//www.myprivateballot.com
• Family and Medical Leave Act/Healthy Families
  Act
• Visit http//www.nam.org/hrp to view the NAMs
  comments
• National Coalition to Protect Family Leave
  http//www.protectfamilyleave.org