CUPA-HR eNews

Public Policy News You Can Use – May 21
May 21, 2009

Specter Changes Political Parties After 29 Years
On April 28, 2009, following months of bleak poll results against a Republican primary opponent, former Rep. Pat Tomey, Sen. Arlen Specter (PA) announced that after 29 years as a moderate Republican he is switching parties and plans to run for re-election in 2010 as a Democrat. With Specter’s change in party affiliation, 59 senators are Democrats, leaving the party only one vote shy of the filibuster-proof 60 votes they need to end debate on legislation. If former comedian Al Franken succeeds in winning the court-contested race for the Minnesota Senate seat, Democrats will have that 60 vote, which means they could pass legislation in the Senate without any Republican support.   

However, in Specter’s statement, he said “[his] affiliation change does not mean that [he] will be a party-line voter any more for the Democrats than [he] has been for the Republicans.” Specter stated he will not change his stance in opposition to the Employee Free Choice Act (EFCA), a controversial bill which would allow unions to organize more easily. Specter virtually killed EFCA in its current form when he announced his opposition to the bill in March. Yet since his party switch, the White House and Senate Democrat leaders have reportedly been discussing potential compromise legislation for EFCA that would address Specter’s concerns with the bill, indicating that Specter may be more of a game changer than he previously advertised.

CUPA-HR Files Comments on GINA Regulations
On May 1, 2009, CUPA-HR, in conjunction with other employer groups, commented on the Equal Employment Opportunity Commission (EEOC)’s proposed rule to implement Title II of the Genetic Information Nondiscrimination Act of 2009 (GINA). GINA was signed into law by President Bush on May 21, 2008, and prohibits employers and health insurers from discriminating against individuals based on genetics information. The EEOC is expected to issue final implementing regulations on or before May 21. However, GINA does not require employers to comply until November 21, 2009 — 18 months after it was signed into law. 

Title II of GINA prohibits employers from discriminating based on genetic information and regulates employer acquisition and disclosure of genetic information. The comments conveyed CUPA-HR’s concern that an overly broad GINA regulatory framework will result in serious negative, albeit unintended, consequences. In particular, the comments laid out the difficulties employers and employees will have in discerning genetic information from general medical information without clear definitions or clearly defined rules regarding permissible acquisition and use and disclosure of information. The comments also discuss how the proposed rule could lead to unnecessary litigation and hamper employers’ ability to comply with other laws.

Bill Expanding OSHA Coverage to Public Entities Introduced in House
On April 23, 2009, Rep. Lynn Woolsey (D-CA), chair of the Workforce Protections Subcommittee of the House Education and Labor Committee, introduced the Protecting America’s Workers Act (H.R. 2067). The legislation would amend the Occupational Safety and Health Act of 1970 to expand coverage to state, local and federal employees and increase employer penalties for repeated willful OSHA violations, including felonies where repeated violations lead to an employee’s death or serious injury. Under the bill, the Occupational Safety and Health Administration (OSHA) would be required to investigate all cases of death or serious injury of two or more employees, allow workers and their families the right to challenge reductions in fines to employers, and update whistleblower protections. 

All private employers would be impacted by the new penalties and enforcement requirement in the bill. The greatest impact, however, would be on those public colleges and universities in states without OSHA-approved state plans that already cover public employers. These institutions would fall within federal OSHA’s jurisdiction and need to be compliant with the law. 

Sen. Edward Kennedy (D-MA), chair of the Senate Health, Education, Labor and Pensions (HELP) Committee, reportedly plans to reintroduce his OSHA reform legislation later this year. It appears some form of OSHA reform may be likely in this Congress as both the House Education and Labor Committee and the Senate HELP Committee held hearings on Workers Memorial Day, April 28, to discuss the need for improvements to OSHA.

Implementation of E-Verify Federal Contractor Rule Postponed Again
On April 16, 2009, the Federal Acquisitions Regulatory Councils delayed the applicability date of the final rule requiring federal contractors and subcontractors use E-Verify until June 30, 2009. This is the third delay in the implementation of the rule since it was first published on November 14, 2008. 

The Department of Justice implemented the first delay in January after the U.S. Chamber of Commerce and other employer groups filed a lawsuit challenging the legality of the proposed rule. That litigation is ongoing. However, this time the Obama Administration said the delay was to “permit the new Administration an adequate opportunity to review the rule.” Many in the employer community are pleased to see the Administration is taking the time to review the rule and fully understand its impact before it is implemented. The latest delay will also give employers covered by the rule additional time to review E-Verify requirements and make sure they are in compliance. The amendment to the rule instituting the delay was published in the April 17 Federal Register. 

Obama Announces NLRB Nominations
On April 24, 2009, President Obama announced his intent to nominate Craig Becker and Mark Pearce to the National Labor Relations Board (NLRB). Becker currently serves as associate general counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations and has practiced and taught labor law for the past 27 years. Pearce is one of the founding partners of the Buffalo, New York, law firm of Creighton, Pearce, Johnsen & Giroux, where he practices union-side labor and employment law, in addition to serving on the New York State Industrial Board of Appeals.

Currently, the NLRB only has two board members, Wilma Leibman, a Democrat chosen by President Obama to chair the NLRB on January 20, and Peter Schaumber, a Republican in his second term after being appointed by President Bush. If approved by the Senate, Becker and Pearce will fill Democrat slots on the Board. The Board generally has three members from the president’s political party and two from the opposing party, so an additional Republican is likely to be nominated in the near future to fill the Board.

Becker has taken some controversial stands on union election issues that may complicate his Senate confirmation. The Wall Street Journal ran an op ed on Becker on May 14, highlighting some of the positions he has taken in the past.

EEOC Issues Employer Best Practices Guide on Balancing Work and Family Responsibilities
On April 22, 2009, the Equal Employment Opportunity Commission (EEOC) issued a report entitled “Employer Best Practices for Workers With Caregiving Responsibilities” identifying best practices for employers to avoid discriminating against employees with caregiving responsibilities. This report is a follow-up to a 2007 report entitled “Enforcement Guidance: Unlawful Disparate Treatment of Workers With Caregiving Responsibilities” on the application of federal anti-discrimination laws to workers with caregiving responsibilities.

The latest document offers guidance on a range of issues such as policies for personal and sick leave, flexible work arrangements and offering benefits to part-time employees. The EEOC held a public meeting to discuss the new report and Acting EEOC Chairman Stuart J. Ishimaru, along with a panel of witnesses, expressed a desire to see employers do more than the bare minimum and accommodate workers with caregiving responsibilities in some of the ways the new best practices report outlines.