CUPA-HR eNews

Public Policy News You Can Use — March 18
March 18, 2009

EFCA Introduced in House and Senate
On March 10, 2009, the Employee Free Choice Act (EFCA) was re-introduced in the House and Senate for the 111th Congress. Its consideration and failure in the 110th Congress initiated an intense battle between private sector employers and unions, with tens of millions of dollars being spent in media campaigns and advertising in anticipation of the bill's reconsideration this Congress with larger labor-friendly Democrat majorities in both bodies of Congress and a Democrat White House.

EFCA would make it easier for unions to organize by virtually eliminating secret ballots as a method to determine whether a private-sector employer will be unionized and would allow government-appointed arbitrators to set the terms of an initial contract if the union and employer did not come to agreement within 120 days. CUPA-HR feels that while there is room to improve the laws governing the unionized workforce, EFCA is not the right solution.

EFCA was introduced in the House by Rep. George Miller (D-CA) with 222 cosponsors and in the Senate by Sen. Edward Kennedy (D-MA) with 39 cosponsors. Many expected to see the bill introduced weeks earlier since it is the number one legislative priority for organized labor. Labor, however, had difficulty securing the same level of support for the bill as it had last Congress. In fact, 18 Senate Democrats did not co-sponsor the legislation — including 11 that had co-sponsored the bill last Congress, and many have expressed a desire to see an alternative or avoid a vote on EFCA altogether.

Employers have been very vocal in opposing the bill, explaining that it would devastate businesses, strip workers' rights and put jobs at risk. On February 25, union leaders attempted to reassure lawmakers by claiming EFCA is actually part of the answer to rebuilding our economy by releasing a statement from 40 economists who support the bill. However, many, including Obama's top economic backer, Warren Buffett, disagree. On March 9, Buffett spoke out in favor of the secret ballot and stated that he opposes card check.

The White House has now officially come out in support of EFCA. Obama supported the bill last congress. Throughout his campaign, however, he had been notably silent about his level of support for the bill. This changed when he addressed the AFL-CIO Executive Council's winter meeting by video earlier this month confirming his support for the bill and discussed working toward its passage. Vice President Joe Biden and the newly confirmed Labor Secretary Hilda Solis also met with attendees to further demonstrate the Administration's support for the bill and organized labor.

The Senate Heath, Education, Labor and Pensions Committee began debate on the bill for this congress in its March 10 hearing that took place just before a press conference with Rep. Miller and Sen. Harkin (D-IA) announcing the introduction of EFCA. The hearing was titled, "Rebuilding Economic Security: Empowering Workers to Restore the Middle Class."

One compromise, or alternative, bill has already been introduced by Rep. Joe Sestak (D-PA); however, neither organized labor nor the business community has expressed any interest in an alternative. The Sestak bill does not contain the card-check provision and extends the timetable for binding arbitration. It would limit employers' communication with employees during an organizing campaign unless the union is granted equal access to employees during work hours. CUPA-HR does not support the arbitration provisions or further restrictions on employer communications, so we do not see it as a viable alternative and oppose the measure.

Speaker Pelosi has indicated that the House will let the Senate act on EFCA first, since it is expected to easily pass the House, as it did in 2007, and moderate House Democrats do not want to vote on the controversial legislation until it is clear the Senate can move the bill. The real battle is expected to occur in the Senate, where the outcome could come down to one or two votes. The Senate could hold the vote on EFCA as early as late spring or mid-summer. CUPA-HR sent out a detailed alert on EFCA, which is available in the Government Affairs section (Alerts — Washington Insider) of the Knowledge Center.

Republican Secret Ballot Protection Act Introduced
On February 25, 2009, legislation was introduced in the House by Reps. John Kline (R-MN) and Tom Price (R-GA), subcommittee chairmen for the Education and Labor Committee, and in the Senate by Sen. Jim DeMint (R-SC), to protect the secret ballot in union organizing elections. The issue has been at the forefront of the debate around the Employee Free Choice Act (EFCA).

The Secret Ballot Protection Act would amend the National Labor Relations Act to make it an unfair labor practice for an employer to recognize or bargain with a union if the union was not chosen by a majority of employees in a National Labor Relations Board (NLRB)-conducted secret ballot election. It would also impact union corporate campaigns by making it an unfair labor practice for a union to attempt to persuade an employer to recognize a union if a majority of workers did not choose to form the union by a NLRB secret ballot election. The bill is not expected to gain a lot of traction with Democrats controlling both chambers in Congress, though it has 107 co-sponsors in the House and 16 in the Senate.

Solis Confirmed as Secretary of Labor
On February 24, former Representative Hilda Solis (D-CA) was confirmed by the U.S. Senate as the Secretary of Labor after more than a month of delays. The Senate voted 80 to 17 to approve her nomination. The first confirmation hearing for Solis on January 9 was one of the first confirmation hearings held for President Obama's appointees. Concerns by many Republican senators over Solis' support of the Employee Free Choice Act (EFCA) and her position with a pro-labor advocacy group actively supporting EFCA surfaced during her confirmation consideration. Senate Republicans eventually agreed to move forward with her nomination, despite additional problems that surfaced regarding tax liens on Solis' husband's business.

E-Verify Extended and Supported by Obama Administration
On March 11, 2009, President Obama signed into law the Omnibus Appropriations Act of 2009, which includes an extension to the U.S. Department of Homeland Security's electronic employment verification system, E-Verify. The E-Verify program, which was set to expire in March, is extended through September 30, 2009, with no changes. The other pending E-Verify matter, the implementation of the Federal Acquisition Regulation (FAR) Council's federal contractor E-Verify regulation, which would require most federal contractors and subcontractors use the E-Verify, is still scheduled to go into effect May 21, though the legal challenge brought by several employer groups is still pending.

Until recently, the Obama Administration had not commented on its view of E-Verify, so the future of the E-Verify program in its current state, as well as the prognosis for the federal contractor rule, were unclear. However, with the appointment of Arizona Gov. Janet Napolitano (D) as Secretary of Homeland Security, the Administration's support for E-Verify has become much more evident. While governor of Arizona, Napolitano made E-Verify mandatory for all employers. Since taking her new position as Secretary of Homeland Security, she has stated that she believes E-Verify is an integral part of our immigration enforcement system.

CUPA-HR will continue to monitor and inform members of any extensions or changes to the E-Verify program.

EEOC Publishes GINA Regulations
On March 2, 2009, the U.S. Equal Employment Opportunity Commission (EEOC) published in the
Federal Register a Notice of Proposed Rule Making implementing Title II, the employment provisions, of the Genetic Information Non-Discrimination Act of 2008 (GINA). GINA, signed into law by President Bush on May 21, 2008, prohibits employers and health insurers from denying health coverage, employment or promotions to an individual based on genetic information. Title II of GINA bars employers from discriminating based on genetic information and regulates employer acquisition and disclosure of genetic information. GINA requires the EEOC to issue implementing regulations by May 21. Comments on the proposed rule are due by May 1, 2009. CUPA-HR will be filing comments and will provide members with more information about opportunities to participate in the rulemaking.

Title I of GINA amends the Employee Retirement Income Security Act (ERISA) by prohibiting employers and health insurers from denying employment, promotions or health care coverage to individuals or their family members based on genetic information. The Department of Labor's Employee Benefits Security Administration (EBSA) has jurisdiction over Title I. EBSA's final rule is also expected in May.

Employers will not be required to comply with GINA until November 21, 2009, 18 months after it was signed into law.

House Holds Hearing on Flexible Workplace Policies
On March 3, 2009, the House subcommittee on Workforce Protections, which is chaired by Rep. Lynn Woolsey (D-CA), held a hearing on "family friendly" workplaces. Much of the discussion centered around paid sick leave, a topic that has become quite controversial since the introduction of the Healthy Families Act (HFA) last Congress. HFA would require employers with 15 or more employees to provide seven days of paid sick leave to employees who work 30 or more hours a week and a pro-rated share for employees who work part time. The bill has not yet been re-introduced this congress.

Overall, the witnesses agreed that there can be benefits for the employer and the employee when a flexible work arrangement is negotiated. Michelle Bernard, president of the Independent Women's Forum, and Ranking Member Tom Price (R-GA), both argued this should be done without costly new government mandates on businesses. Chairman Woolsey and other witnesses disagreed and viewed basic rights like paid sick time off as the employer's burden to bear. More hearings on this subject matter are likely to follow in the coming months.

Supreme Court Rules Unions Have No Right to Payroll Deduction
On December 24, the U.S. Supreme Court upheld an Idaho statute banning political payroll deductions. Chief Justice Roberts delivered the decision, entitled Ysursa v. Pocatello Ed. Assn., with Justices Breyer, Souter and Stevens dissenting.

The Idaho law in question permits a public employee to have a portion of his or her wages deducted to pay union dues, but does not allow such deductions for political activities. Several unions challenged the law, claiming it violated the First Amendment right to free speech. Prior to the law's enactment in 2003, employees could authorize deductions for union dues and contributions to a union's political activities conducted through its political action committee.

The High Court rejected the union's arguments stating that the First Amendment "does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression [and that] Idaho's law does not restrict political speech, but rather declines to promote speech by allowing public employee check offs for political activities."