Core Provisions: On March 10, 2009, Democrats in both houses of Congress introduced the much-anticipated Employee Free Choice Act of 2009 (EFCA) (H.R. 1409; S. 560). The proposed legislation contains three critical provisions that will fundamentally alter labor-management relations in the United States: (1) it allows a union to become the certified bargaining representative by obtaining signed authorization cards from a majority of employees in a proposed bargaining unit; (2) it provides new, mandatory, interest arbitration procedures to ensure that employers and unions actually reach an initial collective bargaining agreement; (3) and it increases the fines and penalties for employers who commit unfair labor practices during union organizing campaigns.

Under current law, a union can become the certified bargaining representative of a group of employees only if it prevails in a secret-ballot election supervised by the NLRB or if the employer voluntarily recognizes the union after it obtains a majority support of the employees in the proposed bargaining unit. In actual practice, most employers insist on a secret ballot election before they will recognize a union. The proposed EFCA “streamlines” the entire process by allowing a union to become the certified bargaining representative by simply demonstrating it has obtained signed cards from a majority of the employees in the proposed bargaining unit.

The proposed EFCA also expedites the bargaining process by requiring that bargaining begin within 10 days upon written request by a newly-certified union. If the parties cannot reach an initial collective bargaining agreement within 90 days, either party can request mediation before the Federal Mediation and Conciliation Service (”FMCS”). If no agreement is reached within 30 days from the request for mediation, the legislation provides that the FMCS will appoint an interest arbitration board or panel to resolve any disputes and decide the terms of a first collective bargaining agreement. The process of interest arbitration is rarely used in the private sector. The arbitration decision will be binding on the parties for two years, unless amended during that period by written consent of the parties.

The proposed EFCA will also increase an employer’s liability for committing unfair labor practices during union organizing campaigns. The legislation imposes liquidated damages in the amount of twice the awarded back pay and civil penalties of $20,000 for each time an employer willfully or repeatedly violates its employees’ right to organize.

Status:  H.R. 1409 was introduced by Rep. Miller (D-CA) on March 10, 2009 and referred to the House Committee on Education and Labor. The Senate-version of the bill has not yet been assigned a bill number or referred to a Senate Committee.

The House passed identical legislation in the 110th Congress, but the legislation stalled in the Senate when it fell 9 votes short of the 60 votes necessary to invoke cloture. At the time, Sen. Specter (R-PA) was the only Republican who voted to invoke cloture, although he emphasized that his vote was on the procedure and not the underlying merits of the bill.

With the House widely expected to pass the bill again, a critical question is whether Senate Democrats can now garner the necessary votes to invoke cloture. The Democrats currently hold 57 seats in the Senate, including the contested Minnesota seat occupied by Al Franken, and there are 2 Independents who generally caucus with the Democrats. Thus, every vote is critical. With intense lobbying efforts being waged by both sides and at least two Democratic Senators wavering in their support, it remains to be seen whether Democrats will be able to secure the 60 votes necessary to invoke cloture.

Core Provisions: This legislation would amend the provisions of the Employee Retirement Income Security Act, Public Health Service Act, and Internal Revenue Code that permit group health plans to establish limitations or restrictions on the amount, level, extent, or nature of the benefits or coverage for participants and beneficiaries of the plan. The new language would clarify that such limitations must be explicit and clear and must be disclosed to the plan sponsor before the point of sale to the plan. The plan sponsor and issuer of the coverage would be required to make available to participants and beneficiaries prior to their enrollment and upon their enrollment, a description of such limitations and restrictions in an easily understandable form.

Status: H.R. 1253 was introduced by Rep. Burgess (R-TX) on March 3, 2009 and it passed the House on March 31, 2009.  The bill now moves to the Senate for consideration. The House passed identical legislation in the 110th Congress. 

Core Provisions:  On February 12, 2009, Rep. Henry C. Johnson (D-GA) and 36 cosponsors introduced the Arbitration Fairness Act of 2009 (H.R. 1020). The bill would amend the Federal Arbitration Act to invalidate all predispute arbitration agreements mandating the arbitration of any employment, consumer, or franchise dispute, as well as any disputes arising under any civil rights statutes. The bill does not apply to arbitration provisions adopted as part of a collective bargaining agreement.

Intended to minimize the use of prearbitration agreements between parties of unequal bargaining power, the bill broadly defines “employment dispute” to include any “dispute between an employer and employee arising out of the relationship of employer and employee” as defined by the Fair Labor Standards Act.

The bill provides that challenges to the enforceability of an arbitration agreement would be heard by a federal court, and not by an arbitrator.

While the 2009 Arbitration Fairness Act mirrors its 2007 predecessor (H.R. 3010, S. 1782) from the 110th Congress in several respects, the current bill omits past provisions invalidating predispute agreements requiring the arbitration of disputes arising under any statute intended to regulate contracts or transactions between parties of unequal bargaining power. The Arbitration Fairness Act of 2007 was sent to the House Judiciary Committee and the Senate Subcommittee on the Constitution, but neither committee ever voted on the bill.

Status: The 2009 bill has been referred to the House Judiciary Committee. A hearing has not yet been scheduled.