Core Provisions: This Act would amend the ADA to respond to three 1999 Supreme Court decisions requiring courts to consider “mitigating measures” to determine whether an individual is “disabled” under the ADA. The elimination of the “mitigating measures” test would mean that the decision of whether individuals are physically or mentally impaired could not take into account the corrective effects of medication or adaptive devices. The Act would also remove the requirement that a disability “substantially limit” the claimant’s ability to perform “major life activities,” and allows the employer to argue as a defense to a charge of discrimination that the claimant is not a “qualified individual with a disability.”

Status: H.R.3195 was introduced in the House by Rep. Hoyer (D-MD) on July 26, 2007, and hearings were held by the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties on October 4, 2007. In the Senate, S.1881 was introduced by Sen. Harkin (D-IA) on July 26, 2007, and hearings were held by the Senate Committee on Health, Education, Labor, and Pensions on November 15, 2007 (see Hearings on the Hill, Page 2). H.R.3195 currently has 235 co-sponsors, S.1881 currently has two co-sponsors.

Core Provisions: This Act would allow a union to secure certification as a bargaining representation by presenting the Board with authorization cards from a majority of employees in a proposed bargaining unit. In addition, the Act provides new procedures to ensure employers and unions reach an initial agreement. In particular, bargaining must begin within ten days of a written request by the union and, if the parties are unable to reach an initial collective bargaining agreement within 90 days, then either party can request mediation. If the mediation is unsuccessful after 30 days, the dispute will be resolved through arbitration, which will have a binding effect for two years. Finally, the Act strengthens enforcement requirements and remedies with respect to unfair labor practices during union organizing drives. For example, the Act imposes liquidated damages in the amount of twice the back pay awarded and civil penalties of $20,000 for each time an employer willfully or repeatedly violates the employees’ right to organize.

Status: Rep. Miller (D-CA) introduced H.R.800 on February 5, 2007. The bill passed in the House of Representatives by a roll call vote on March 1, 2007. On March 29, 2007, S.1041 was introduced in the Senate by Sen. Kennedy (D-MA) and it was referred to the Committee on Health, Education, Labor and Pensions. On June 26, 2007, a Senate cloture vote to proceed on H.R.800 failed after supporters only were able to muster 51 votes in favor of cloture.  On February 28, 2007, the White House announced that President Bush would veto H.R.800 if presented to him.

“In my administration, America’s working families will again have a partner in the White House.” (Hillary Clinton For President, “American Federation of State, County and Municipal Employees Endorses Clinton,” Press Release, 10/31/07).

General

New York Senator Hillary Clinton spent 2007 as the front-runner for the Democratic nomination. After she split the first two states - Iowa and New Hampshire - with Sen. Barack Obama (D-IL) and won in Nevada, her campaign remains competitive around the country but the race remains very dynamic. Sen. Clinton has been endorsed by several unions, including the American Federation of State, County & Municipal Employees.

Positions on Legislation

In Congress, Sen. Clinton voted to raise the minimum wage to $7.25 per hour. In December 2007 she also introduced The Standing with Minimum Wage Earners Act of 2007, which seeks to raise the minimum wage to $9.50 by 2011 and link future increases to Congressional pay raises.

Sen. Clinton wants to extend the FMLA to cover 13 million additional workers and guarantee at least seven paid sick days per year. She also co-sponsored an amendment with Sen. Dodd (D-CT) to allow family of wounded military personnel to take up to six months of unpaid leave, up from the three months currently allowed by the FMLA.

Sen. Clinton supports the federal Employment Non-Discrimination Act and has called it “inconceivable” and “un-American” that workers could be fired based on sexual orientation.

Sen. Clinton was a co-sponsor of the Employee Free Choice Act in the U.S. Senate and supports a card check system. She has said that she will sign the Employee Free Choice Act into law in order to allow workers to form a union and bargain collectively without employer coercion.

Sen. Clinton’s health care proposal focuses on providing affordable, comprehensive and portable health coverage. Sen. Clinton’s proposal—

• mandates universal coverage, with tax credits available to small businesses and working families to defray the costs
• prohibits insurance companies from denying coverage based on pre-existing conditions
• supports modernizing the health care system, including wireless and paperless technologies, to reduce cost and improve quality of care.

The Employee Benefits Security Administration (EBSA) recently advised that the use of pension plan assets by plan fiduciaries to further policy or political issues violates fiduciary duties under Sections 404(a)(1)(A) and (B) of the ERISA. These ERISA sections require that plan fiduciaries act prudently, solely in the interest of the plan’s participants and beneficiaries, and for the exclusive purpose of paying benefits and defraying reasonable administrative expenses. EBSA has previously expressed strong concern about the use of plan assets to promote particular legislative, regulatory or public policy positions that have no connection to the payment of benefits or plan administrative expenses. EBSA made this announcement via an opinion letter made public on January 2, 2008.

The advisory opinion can be found at http://www.dol.gov/ebsa/regs/aos/ao2007-07a.html.

On December 18, 2007, the Department of Labor (DOL) announced a proposal regarding the assessment of civil penalties against plan administrators who fail to disclose certain documents to participants, beneficiaries and others as required under the Pension Protection Act. Section 502(c)(4) of the Act allows the DOL to assess civil monetary penalties of up to $1,000 per day against plan administrators for violating the new disclosure requirements. The proposed regulation discusses the administrative procedures for assessing and contesting such penalties.

The complete text of the proposal is available at http://www.dol.gov/ebsa/regs/fedreg/proposed/12192007.htm.

The EEOC has issued a new rule allowing employers to coordinate retiree health benefits with Medicare, or comparable state health benefits, without violating the Age Discrimination in Employment Act (ADEA). First proposed four years ago, the rule was developed in response to a 3rd Circuit ruling in 2000 in Erie County Retirees Association v. County of Erie, which held that the ADEA requires employers to spend the same amount on health benefits for retirees eligible for Medicare as it spends for younger retirees. The new regulation allows employers to continue the common practice of providing health benefits to retirees by supplementing government healthcare or by offering benefits to cover retirees between the time of retirement and the time they become eligible for Medicare. The AARP, which opposes the rule, filed suit challenging the Commission’s authority to issue the regulation. The 3rd Circuit upheld summary judgment in favor of the Commission in June, and a petition for Supreme Court review is pending.

The EEOC is eliminating three bases for dismissal of charges under Title VII and the Americans with Disabilities Act (ADA). Effective February 19, 2008, the Commission will no longer authorize dismissal when the charging party fails to cooperate, cannot be located or refuses to accept an offer of full relief for the harm alleged in the charge. The Commission added these grounds in 1977 as a case management tool, but now notes that they are no longer necessary, have caused confusion in the courts, and are inconsistent with procedures in the Age Discrimination in Employment Act (ADEA) and the Equal Pay Act. Once the rule takes effect, the only authorized grounds for dismissal will be when the Commission issues a no cause determination, a charge was untimely or a charge fails to state a claim on which relief can be granted.

On December 27, 2007, the NLRB’s general counsel issued a Guideline Memorandum regarding the handling of unfair labor practice charges where the charging party alleges an unlawful lawsuit was filed.

In Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 748-49 (1983), the Supreme Court held that the Board may find a violation of the NLRA where a lawsuit was filed with a retaliatory purpose and the lawsuit resulted in a judgment adverse to the plaintiff, was withdrawn or otherwise shown to be without merit. In BE&K Construction Co., 536 U.S. 516, 532-37 (2002), the Supreme Court revised the Bill Johnson’s standard by finding that the Board could no longer rely upon the fact that a lawsuit was ultimately unsuccessful, but instead must determine whether the lawsuit was reasonable from the perspective of the plaintiff at the time the lawsuit was filed. In addition, the Supreme Court in BE&K rejected the Board’s policy of finding a retaliatory motive in a reasonably based lawsuit if it attacked protected conduct.

In September 2007, the Board issued its decision in BE&K on remand by the Supreme Court. See BE&K Constr. Co., 351 NLRB No. 29 (Sept. 29, 2007). The Board held that the filing and maintenance of a reasonably based lawsuit does not violate the NLRA, regardless of whether the lawsuit is ongoing or concluded, or whether it was filed with a retaliatory motive. In determining reasonableness, the Board adopted the Supreme Court’s antitrust standard, which states that a lawsuit is objectively baseless if “no reasonable litigant could realistically expect success on the merits.” The Board further found that the NLRA only prohibits lawsuits that are “both objectively and subjectively baseless,” but it did not define “subjectively baseless.”

In his Guideline Memorandum, the general counsel described several “guiding principles” in determining whether a lawsuit is reasonably based:

• Claims that are novel and unsupported by existing precedent may nevertheless be reasonably-based if they raise a “reasonable argument for the extension of existing law” or involve an unsettled area of the law.
• The Board’s inquiry into factual or legal claims or theories is generally limited to whether they are frivolous or plainly foreclosed.
• Survival of a motion for summary judgment generally indicates that a lawsuit should be deemed reasonably-based.
• A lawsuit can be considered reasonably based even where it is dismissed on summary judgment, particularly where it involves an unsettled area of the law.

The general counsel’s Guideline Memorandum also provides direction to the Board Regions for processing of Bill Johnson’s charges. First, the region must initially investigate whether the challenged lawsuit is reasonably based. If the lawsuit is found to be reasonably based, the charge should be dismissed unless it is withdrawn first. If the lawsuit is found to be baseless, the region should then investigate the evidence that the lawsuit was brought with a retaliatory motive, including evidence that that lawsuit attacked protected conduct, is causally related to protected activity or was filed to impose the costs of litigation without regard to its outcome. After such investigation, the region must submit a reasoned analysis to the Division of Advice.

In a 3-2 decision issued on the final day of outgoing Chairman Robert Battista’s term, the NLRB determined that an employer may lawfully prohibit employees from using its email system for union business as long as the policy is not discriminatorily enforced against union-related emails. In The Guard Publishing Co., 351 NLRB No. 70 (Dec. 16, 2007), the Board considered the legality of an employer policy that prohibited use of company email for non-job-related solicitations. In accordance with this policy, an employee was reprimanded on two different occasions for three emails about union activities she sent to employees at their company email addresses. The general counsel provided evidence that employees were permitted to use the employer’s email system to send personal emails. The Board determined that the employer’s policy did not constitute an unfair labor practice under Section 8(a)(1) of the NLRA, and ruled that an employee has no statutory right to use an employer’s email system to further union activities.

In reaching its decision, the Board relied on past cases involving employer property rights. Although the issue of whether an employer’s email system may be used for Section 7 communications is an issue of first impression, the Board determined that an email system is similar to other employer-owned property such as bulletin boards, telephones and televisions. Thus, the Board applied the principle that applies to these other forms of property, which is that there is no statutory right to use an employer’s equipment or media as long as the restrictions an employer places on the use of its property are nondiscriminatory.

However, the Board also noted that there was not any contention that the employees here rarely or never saw each other in person or only communicated with each other by electronic means. The Board thus stated that its decision did not address circumstances in which there was no means of communication among employees at work other than email, raising the possibility that a different rule might apply under those circumstances.

Modifying its previous rulings, the Board determined that an employer’s enforcement of a policy restricting use of its email system or other property is only discriminatory if “the employer has drawn a line between permitted and prohibited activities on Section 7 grounds.” Thus, the fact that union solicitation is barred and other non-work-related activities are permitted is not enough to establish that a restriction or its enforcement is discriminatory. It must be shown that the restriction or its enforcement results in “disparate treatment of activities or communications of a similar character because of their union status.”

On December 20, 2007, four days after the expiration of the term of Chairman Robert Battista (R), the four remaining NLRB members took steps to ensure continuous operation of the NLRB in anticipation of the expiration of two other Board members’ recess appointments on December 31, 2007. The Board temporarily delegated authority on all court litigation matters that otherwise would require Board authorization to General Counsel Ronald Meisburg. This delegation will give the general counsel full and final authority to initiate and prosecute injunction proceedings under Section 10(j), and to enforce or defend Board orders and decisions under Sections 10(e) and (f) of the National Labor Relations Act (NLRA).

The Board also temporarily delegated its decision-making authority to members Wilma Liebman (D), Peter Schaumber (R) and Peter Kirsanow (R) so that Liebman and Schaumber, as a quorum of the three-member group, will be permitted to issue decisions and orders in unfair labor practice and representation cases. The recess appointments of Kirsanow and Dennis Walsh (D) expired with the adjournment of the Senate at the end of year.

The Board acted pursuant to NLRA section 3(b), which permits it to delegate its authority to any three members and stipulates that two members of this group constitutes a quorum. The Board also relied on a March 4, 2003, opinion issued by the U.S. Department of Justice Office of Legal Counsel that concluded that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.” The temporary delegations will be revoked when the Board returns to at least three members.