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Washington Labor & Employment Wire » Bill Tracker

The Legal Workforce Act (H.R. 2164)


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Core Provisions: On June 14, 2011, Rep. Lamar Smith (R-Texas) introduced the Legal Workforce Act (H.R. 2164), a bill amending the Immigration and Nationality Act to implement a fully electronic (”E-Verify”) worker verification system. The bill would make E-Verify mandatory for all employers, repealing the current paper-based I-9 system. Mandatory E-Verify participation would be phased in by the Act in six-month increments based on a business’s number of employees-e.g., within six months of enactment, businesses with more than 10,000 employees would be required to use E-Verify.  Businesses with 500-9,999 employees, 20 to 499 employees, and 1 to 19 employees would have 12, 18, or 24 months to comply, respectively. 

The bill also contains special provisions for agricultural employees, providing that employees performing “agricultural labor or services” are not subject to the bill’s E-Verify provisions until 36 months after the Act’s enactment. Furthermore, a seasonal agricultural employee will not be considered a “new hire” subject to verification if the individual returns to work for their previous employer. Finally, the bill contains a safe harbor provision for employers that act in good faith and also explicitly preempts any state laws mandating E-Verify use for employment eligibility purposes, although states and localities may condition business licenses on the requirement that employers comply with the federal E-Verify law in good faith.  

Status: Rep. Smith introduced H.R. 2164 with 13 co-sponsors on June 14, 2011. The Bill was referred to the House Committee on the Judiciary, the Committee on Education and the Workforce, and the Committee on Ways and Means on the same day.


The Arbitration Fairness Act of 2011 (S. 987; H.R. 1873)

Core Provisions:  On May 12, 2011, Sen. Franken (D-MN) re-introduced legislation which would amend the Federal Arbitration Act (FAA) by prohibiting mandatory predispute arbitration agreements. Rep. Johnson (D-GA) introduced identical legislation in the House. The proposed legislation would invalidate and make unenforceable predispute arbitration clauses in civil rights, consumer, and employment disputes. The legislation would not apply to any arbitration provision in a collective bargaining agreement between an employer and a labor organization or between labor organizations.

The proposed legislation follows the Supreme Court’s April 27, 2011 decision in AT&T Mobility LLC v. Concepcion, which held that the FAA preempted a California law that made waivers of classwide arbitration in consumer contracts unconscionable and unenforceable. 

Similar legislation was introduced in the 111th Congress in both the Senate (S. 931) and the House (H.R. 1020), but did not make it out of committee.

Status:  Sen. Franken introduced the bill (S. 987) with 12 co-sponsors on May 12, 2011.  It was referred to the Senate Committee on the Judiciary on the same day.  Rep. Johnson introduced the same bill (H.R. 1873) with 62 co-sponsors on the same day.  The bill was referred to the House Committee on the Judiciary on the same day.


NLRB Brings Complaint Against Boeing; Critical Senate Republicans Introduce Right-to-Work Legislation in Response


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On April 20, 2011, NLRB Acting General Counsel Lafe E. Solomon issued a complaint against the Boeing Company for its transfer of aircraft production jobs from the state of Washington to South Carolina in violation of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (”NLRA”). The complaint follows an unfair labor practice complaint brought by IAM in March 2010 and asserts that by opening a new production line in North Charleston, SC rather than the Puget Sound area of Washington State, Boeing is engaging in anti-union discrimination with regard to hiring and employment and unlawfully interfering with, restraining or coercing its employees in their exercise of their NLRA rights.

In conducting an investigation and bringing the complaint, the NLRB referenced numerous statements made in the press by Boeing officials concerning the desire to set up the production line in a non-union setting. In particular, one high-level Boeing official was reported to have told the Seattle Times that “[t]he overriding factor (in locating the work in South Carolina) was not the business climate. And it was not the wages we’re paying today. It was that we cannot afford to have a work stoppage, you know, every three years.” Boeing production lines in the Puget Sound, WA area have been plagued by periodic strikes in the past.

In a statement issued by its Executive Vice President and General Counsel J. Michael Luttig, a former federal judge, Boeing emphatically contested the complaint, arguing that establishing a new production line in South Carolina did not represent a removal or transfer of work from Puget Sound or otherwise adversely affect any union employees. Boeing also asserted that the NLRB mischaracterized the statements of its officials, and that the company considered only permissible factors in locating the production line in South Carolina.

The filing of the NLRB complaint brought condemnation from Senate Republicans, who contended that the action improperly interfered with the ability of businesses to operate in right-to-work states and would force companies to instead move jobs overseas. The NLRB complaint prompted Sen. Lamar Alexander (R-TN) and South Carolina’s two Republican Senators, Sen. Jim DeMint and Sen. Lindsey Graham, to announce that they would soon unveil the Right to Work Protection Act, which would bar the NLRB or union contracts from overriding right-to-work laws and halt NLRB actions such as the Boeing complaint. The bill, which is unlikely to pass the Democratic-controlled Senate, would prohibit federal government from engaging in enforcement actions against companies electing to relocate to right-to-work states or from disadvantaging work located in right-to-work states when awarding federal government contracts.

The complaint also brought condemnation from the Republican state attorneys general of nine right-to-work states, who called on the NLRB to drop the complaint: Alabama, Arizona, Florida, Georgia, Nebraska, Oklahoma, South Carolina, Texas, and Virginia.

Both parties will be able to present evidence and arguments concerning the NLRB complaint in a June 14, 2011 hearing in Seattle, WA before an NLRB administrative law judge.

NLRB Acting General Counsel Solomon was nominated by President Obama earlier this year to a four-year term as General Counsel on a permanent basis. His nomination is currently pending in the Senate.


Employment Non-Discrimination Act (H.R. 1397)

Core Provisions:  On April 6, 2011, Rep. Barney Frank (D-MA) reintroduced the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination on the basis of an individual’s actual or perceived sexual orientation or gender identity in decisions regarding hiring, firing, compensation, and other terms, conditions, or privileges of employment.  Employers also could not adversely limit, segregate, or classify employees or applicants because of actual or perceived sexual orientation or gender identity.  In addition, the Act would make it an unlawful employment practice for an employer to discriminate based on actual or perceived sexual orientation or gender identity of a person with whom the employee associates, and prohibits retaliation against employees for exercising their rights under the Act.  The Act would apply to employers with 15 or more employees, but there is an exemption for religious employers and armed forces.

Rep. Frank introduced similar legislation in the 110th Congress, which failed to pass in the Senate, and in the 111th Congress, which failed to make it out of committee. 

Status: Rep. Frank reintroduced the bill with 117 co-sponsors on April 6, 2011.  It was referred to the House committees on Education and Workforce, Administration, Oversight and Government Reform, and the Judiciary on the same day. 


Republican AGs to Defend Secret Ballot Amendments; Senate Republicans Introduce Secret Ballot Protection Act

On January 27, 2011, the Republican state attorneys general of Arizona, South Carolina, South Dakota, and Utah sent a joint response to NLRB Acting General Counsel Lafe Solomon pledging to defend recent state constitutional amendments barring the use of the card check process in union elections. On January 13, Solomon had threatened legal action against the four states.

In November, voters in those four states passed constitutional amendments requiring secret ballot elections in all union elections. Currently, Section 7 of the NLRA permits workers to choose a union through two pathways: NLRB-conducted secret ballot elections and voluntary recognition after a showing of majority support through the use of the card check process. The state amendments are an outgrowth of the defeat of the Democratic-sponsored Employee Free Choice Act in the 111th Congress, which would have permitted the use of the card check process for union selection even outside the context of voluntary recognition.

Solomon warned the attorneys generals of those states that such amendments were contrary to federal labor law and preempted under the U.S. Constitution. Solomon also warned that the amendments would pressure employers who previously agreed to voluntary recognition agreements to withdraw recognition from labor organizations representing their work forces and could lead to unnecessary litigation by workers challenging unions with majority support.

In support of the Republican attorneys general, Sen. Jim DeMint (R-S.C.) and 17 Republican co-sponsors, introduced the Secret Ballot Protection Act (S. 217).  Mirroring the state constitutional amendments, the bill would ban the card check/voluntary recognition pathway and require secret ballot elections in all circumstances. With Democrats maintaining their Senate majority, the legislation faces an uphill battle to obtain the required 60 votes needed for cloture in the Senate.


Enhanced New York Wage Payment Protections Scheduled to Go Into Effect April 9, 2011


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In December 2010, New York State strengthened wage payment protections for employees with the Wage Theft Prevention Act, which will go into effect on April 9, 2011. The Act expands the right of employees to seek civil and criminal remedies against employers who pay them less than the wages to which they are entitled. 

Notably, the legislation increases liquidated damages on unpaid wages from 25% to 100% in court actions. To facilitate collection of wages ordered to be paid, the Act automatically increases the total judgment amount by 15% if an employer defaults on payment for more than 90 days. The Act also authorizes public posting of employer violations, and extends criminal penalties to cover non-payment of minimum wage or overtime compensation. Those penalties include fines ranging from $5,000 to $20,000 and imprisonment for up to a year.

The Act increases protection for employees who report wage law violations by assuring that employee complaints need not cite specific labor law provisions to trigger retaliation protections.  In addition to allowing for liquidated damages of up to $10,000 for victims of prohibited retaliation, the Act provides the Commissioner with all necessary tools, including ordering reinstatement, to remedy retaliation.

The Act also imposes new notice and record-keeping requirements, and sets out penalties for employers who fail to comply.


House Rejects Robert C. Byrd Mine Safety Protection Act


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On December 8, the House voted down the Robert C. Byrd Mine Safety Protection Act, designed to improve worker safety conditions for miners. Because the bill was considered under suspension of House rules, it needed votes from two-thirds of the House lawmakers to pass. It was rejected by a 214-193 vote, with 213 Democratic votes and one Republican vote in favor, and 166 Republican votes and 27 Democratic votes in opposition.

Introduced in the House on December 3, the legislation was intended to address safety concerns in light of recent mining accidents, particular the Massey Energy Upper Big Branch Mine explosion April 5 that left 29 miners dead. The bill would have authorized the Labor Department’s Mine Safety and Health Administration to revoke an employer’s mining engineering plan if it creates safety hazards and levy fines for serious violations. It also increased MSHA’s authority by enabling it to seek a court order to close an unsafe mine, to subpoena documents and testimony, and to require additional training for miners in unsafe mines. In addition, it would have protected miners who inform authorities of violations from retaliation by operators and ensured that miners do not lose pay while mines are closed for safety reasons.


Senate Fails to Invoke Cloture on Paycheck Fairness Act

On November 17, 2010, the Senate was unable to carry the requisite 60 votes needed to invoke cloture to overcome a Republican filibuster and proceed to a vote on the Paycheck Fairness Act, S. 3772,  with a final vote of 58 yeas and 41 nays.

The Paycheck Fairness Act, previously introduced in the Senate by Senator Clinton (D-NY) as S. 766 and subsequently reintroduced by Senator Harry Reid (D-NV) on September 13, 2010, would amend the portion of the Fair Labor Standards Act (”FLSA”) known as the “Equal Pay Act.”

The Paycheck Fairness Act would amend the portion of the Fair Labor Standards Act (”FLSA”) known as the “Equal Pay Act” that prohibits differentials in pay between employees of the opposite sex unless those differentials “are based on any other factor other than sex.” Among other things, the bill would require that any pay differential be based only on certain “bona fide factors,” such as education, training or experience, which must also be consistent with “business necessity.” In addition, the bill provides for compensatory damages, and, in certain circumstances, punitive damages for Equal Pay Act claims, provides for opt-out class actions for Equal Pay Act suits under the FLSA, as opposed to opt-in class actions, and requires that the EEOC collect pay information data from employers relating to employees’ sex, race and national origin.  


Senate Scheduled to Vote on Paycheck Fairness Act

On November 17, 2010, the Senate is scheduled to hold a cloture vote on the Paycheck Fairness Act, S. 3772. The Paycheck Fairness Act would amend the portion of the Fair Labor Standards Act (”FLSA”) known as the “Equal Pay Act” that prohibits differentials in pay between employees of the opposite sex unless those differentials “are based on any other factor other than sex.”

The bill amends this language to require that any pay differential be based only on certain “bona fide factors” such as education, training or experience. Such bona fide factors must also be consistent with “business necessity.” In addition, the bill provides for compensatory damages, and, in certain circumstances, punitive damages for Equal Pay Act claims.  The bill also provides for opt-out class actions for Equal Pay Act suits under the FLSA, as opposed to opt-in class actions, and requires that the EEOC collect pay information data from employers relating to employees’ sex, race and national origin.  

The Paycheck Fairness Act was previously introduced in the Senate by Senator Clinton (D-NY) as S. 766. However, no action was taken on the bill. The bill was subsequently reintroduced by Senator Harry Reid (D-NV) on September 13, 2010.  The Paycheck Fairness Act was introducted in the House as H.R. 12, and passed the House by a vote of 256 to 163 on January 9, 2009, the same day that the House passed the Lily Ledbetter Fair Pay Act.  The President has previously indicated his support for the bill. 


Akin Gump Labor and Employment Partner Don Livingston Testifies Before Congress on Legislation to Restrict Use of Credit Checks in Employment


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On September 23, 2010, the House Financial Services’ Subcommittee on Financial Institutions and Consumer Credit held a hearing on H.R. 3149, the Equal Employment for All Act.  The proposed legislation, sponsored by Rep. Steve Cohen (D-TN9) and co-sponsored by 55 other members of Congress, would make it unlawful for an employer to procure a credit report for use in a hiring or promotion decision with limited exceptions, such as for jobs that require a national security clearance, jobs at state and local agencies, and high-level financial positions.

Under existing law, an employer may procure and use credit history information in a hiring or promotion decision only when it can show that the information is “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(I).  Employers must also comply with the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., which requires them to provide a credit report and a notice of adverse action to an employee or potential employee before taking adverse action based on that report.  If the employee or potential employee believes that the report contains errors, he or she may dispute the accuracy of information on the report with the reporting agency within a statutorily defined time period.  Further, if the employee or potential employee believes the credit information is not job-related, he or she may challenge the employer’s use of that information with the Equal Employment Opportunity Commission (”EEOC”).

The hearing was lively with representatives from both sides of the aisle along with a panel of witnesses who had opposing views on the proposed legislation.  Proponents of the bill argued generally that credit information is not indicative of a person’s integrity or ability to perform a certain job, and that the use of credit information in hiring has a disparate impact on blacks and other minorities who are statistically more likely than others to have poor credit.

“Using a job applicant’s credit history to deny employment is not fair because personal credit history is not an accurate predictor of job performance,” Representative Cohen said. “We should be doing everything in our power to help people find jobs during these tough economic times - not hinder them.” 

Opponents of the legislation, including the U.S. Chamber of Commerce, argued that credit information is a useful tool for employers and that the current laws sufficiently protect employers and employees alike.  Akin Gump’s Labor and Employment partner Don Livingston testified during the hearing on behalf of the U.S. Chamber of Commerce.

“Existing law provides the best method for ensuring that credit history information is used where justified and eschewed where it is not,” according to Mr. Livingston.  “The principles of equal employment opportunity have served well.  The proposed legislation will serve less well because, except in an artificially narrow set of circumstances, it would needlessly prevent employers from using credit checks that are justified by business necessity.”     

The bill has not yet been put to a formal vote.