2009 Mid-Term Federal Legislative Update
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.
Passed:
- 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.
Proposed Legislation Would Allow Employers to Fire Union Salts
The Truth in Employment Act of 2009 (TEA) would allow employers to lawfully fire employees who are suspected of “salting,” or attempting to organize the contractor's workforce from within on behalf of a labor union. The bill was introduced in the Senate by Sen. Jim DeMint (R-S.C.) and in the House by Rep. Steve King (R-Iowa).
TEA would amend the National Labor Relations Act to protect the employer from being required to hire any person who is seeking a job in order to promote interests unrelated to those of the employer. “Small businesses should never be forced to hire undercover union organizers who seek to bully workers and harm companies,” said Senator DeMint. “We must pass the Truth in Employment Act or successful small businesses will remain vulnerable to union salting tactics that threaten jobs." Click here to read Senator DeMint's press release on TEA.
Does TEA have a realistic chance of becoming law? Not really. The Republicans unsuccessfully tried to pass TEA in 2005 and 2007, and that was when they had a fellow Rebpublican in the White House and much better numbers in both houses. Expect this one to die on the vine.
Employers can take some solace, however; last year, the National Labor Relations Board held in Toering Electric Company that an employer is not required to hire an employee who is not "genuinely interested in seeking to establish an employment relationship with the employer," thus significantly restricting the amount of salt in unions' diets. If you have concerns about union salting in your workplace, you might want to read the NLRB's Guideline Memorandum Concerning Toering Electric Company.
