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Washington Labor & Employment Wire » Labor

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.


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.


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.


Senate Approves FY 2010 Consolidated Appropriations Bill (H.R. 3288)


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On Sunday, December 13, 2009, the Senate approved the $446.8 billion fiscal year 2010 consolidated appropriations bill (H.R. 3288), on a 57-35 vote. The omnibus bill consolidates six of the seven remaining fiscal year 2010 appropriations bills: the Commerce, Justice, Science, and Related Agencies Appropriations Act (H.R. 2847); the Departments of Labor, Health and Human Services, Education and Related Agencies Appropriations Act (H.R. 3293); the Financial Services and General Government Appropriations Act (H.R. 3170); the Military Construction and Veterans Affairs Appropriations Act (H.R. 3082); the Department of State, Foreign Operations, and Related Programs Appropriations Act (H.R. 3081); and the Transportation, Housing and Urban Development and Related Agencies Appropriations Act (H.R. 3288). 

Under this omnibus appropriations bill, the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission will all receive increased funding in FY 2010. The Department of Labor’s budget will increase $431 million from FY 2009, the National Labor Relations Board’s budget will increase $20.8 million from FY 2009, and the Equal Employment Opportunity Commission’s budget will increase $23 million from FY 2009. In total, under the bill the Department of Labor will receive $13.3 billion in discretionary funding, the National Labor Relations Board will received $283.4 million, and the Equal Employment Opportunity Commission will receive $367.3 million.  

If signed into law, the bill will also provide funding for the Justice Department’s Civil Rights Division ($145 million), the Federal Mediation and Conciliation Service ($46.7 million), the National Mediation Board ($13.5 million), the Occupational safety and Health Review Commission ($11.7 million), the Federal Mine Safety and Health Review Commission ($10.4 million), the U.S. Commission on Civil Rights ($9.4 million), and the National Council on Disability ($3.3 million).

As noted in the Senate Appropriations Committee summary, the bill would also present additional targeted funding for unemployment insurance program operations ($3.2 billion), dislocated worker employment and training ($1.4 billion), the Department of Labor’s “worker protection” agencies that regulate pensions, mine safety and health, occupational safety and health, wage and hour rules, and federal contractor compliance ($1.6 billion), and military veteran’s employment and training ($256 million).

The House previously approved the omnibus bill on December 10, 2009, on a 221-202 vote. The legislation now moves to the White House to be signed by the President. President Obama is expected to sign the bill.


National Right-to-Work Act (H.R. 4107)

Core Provisions: This legislation would amend the National Labor Relations Act and the Railway Labor Act to provide greater protections for individuals choosing to form, join or assist labor organizations, or to refrain from doing so. The bill would modify section 7 of the National Labor Relations Act, 29 U.S.C. § 157, to exclude language which makes an employee’s right to form, join, or assist labor organization, or to refrain from such activities, subject to any agreement requiring membership in a labor organization as a condition of employment. The bill would also modify section 8(a) of the Act to strike language that makes an employer’s inability to encourage or discourage membership in a labor organization subject to an employer’s ability to make certain agreements with labor organizations relating to conditions of employment. The bill would modify section 8(b) by removing language that makes it an unfair labor practice for a labor organization to discriminate against an employee whose membership has been denied on some ground other than failure to pay dues, and by striking language that protects only employees covered by an agreement from being required to pay excessive or discriminatory fees.  The proposed changes would also modify section 8(f) by striking language that deals with an employer in the building and construction industry’s ability to make agreements dealing with employees engaged with a labor organization. 

This legislation would modify the Railway Labor Act, 45 U.S.C. § 152, by removing paragraph Eleventh, which permits unions to make agreements to ensure the security of the union. 

Status: Rep. Steve King (R-IA) introduced the bill on November 18, 2009.  It was referred to the House Committee on Education and Labor that same day.


Truth in Employment Act of 2009 (S.1227)

Core Provisions: The bill would amend Section 8(a) of the National Labor Relations Act to empower employers to refuse employment to “professional union organizers and agents” when the primary objective of these job applicants or employees is not employment.  The bill targets the practice of union “salting,” in which union organizers seek employment with a nonunion business with the intent to unionize the company’s workforce.  Currently, “salts” are considered “employees” and, accordingly, are afforded the protections of the Act.   The bill would remove such protection for these job applicants and employees by not requiring an employer to employ “any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.”  The stated purpose of the bill is to avoid workplace disruption and end employer harassment.

Status: Sen. Jim DeMint (R-S.C.) introduced the bill on June 10, 2009, and it was referred to the Senate Health, Education, Labor and Pension Committee.  A similar bill was introduced on the same day in the House by Rep. Steve King (R-IA), which was referred to the House Committee on Education and Labor. 


Truth in Employment Act of 2009 (H.R. 2808)

Core Provisions: The bill would amend Section 8(a) of the National Labor Relations Act to provide that the Act’s prohibition of unfair labor practices does not require an employer to “employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.” As detailed in the bill’s findings and purposes section, this amendment would attempt to discourage the tactic of “salting,” the practice by which professional union organizers and agents seek employment with a non-union employer primarily for the purpose of organizing the employer and/or inflicting economic harm on the employer.

Status: Rep. Steve King (R-IA) introduced the bill on June 10, 2009, and it was referred to the House Committee on Education and Labor that same day.


Rewarding Achievement and Incentivizing Successful Employees Act (H.R. 2732)

Core Provisions: The bill, known as the “RAISE Act”, would amend the National Labor Relations Act to provide that an employer does not commit an NLRA unfair labor practice or violate the terms of a collective bargaining agreement by paying its employees greater wages, pay, or other compensation than provided for in the applicable collective bargaining agreement.  Thus, the bill would effectively establish that wage scales contained in collective bargaining agreements represent a floor, but not a ceiling, for bargaining unit employee pay. 

Status: Rep. Rep. Tom McClintock (R-CA) introduced the bill on June 4, 2009, and it was referred to the House Committee on Education and Labor that same day.


Green Jobs Improvement Act (H.R.6220)

Core Provisions: The Green Jobs Improvement Act (H.R.6220) would amend the Workforce Investment Act of 1998 to make non-union training programs eligible for federal funding under the “Green Jobs” program. 

The Green Jobs program provides funding for energy efficiency and renewable energy worker training programs. Participation in the Green Jobs program is currently restricted to entities that partner with labor organizations. The proposed legislation would remove this eligibility requirement, opening the energy-oriented training funding to a broader range of employers and training partners. Under the proposed language, the scope of participation would include “industry and may include workforce investment boards, community-based organizations, qualified service and conservation corps, educational institutions, small businesses, public employers, cooperatives, State and local veterans agencies, veterans service organizations, and labor organizations, including joint labor-management training programs.”

Status: H.R. 2026 was introduced by Rep. John Kline (R-MN) on April 22, 2009 and referred to the Committee on Education and Labor. The bill currently has 12 cosponsors. The full text of the bill has not yet been released.  Rep. Kline introduced a similar bill in the 110th Congress, but that bill failed to make it out of committee. 


Patriot Employers Act of 2009 (S. 829)

Core Provisions: On April 20, 2009, Senator Richard Durbin (D-IL) reintroduced The Patriot Employer Act, a legislative initiative designed to encourage businesses to increase wages and benefits and adopt a position of neutrality in unionization drives.  In August 2007, then-Senator Barack Obama (D-IL) co-sponsored a virtually identical bill with Senators Durbin and Sherrod Brown (D-OH). The 2007 bill never made it out of the Senate Committee on Finance, but it was a centerpiece of Obama’s campaign for president.

The current bill would amend the Internal Revenue Code to provide a one percent tax credit to qualifying “Patriot” employers.  To be designated a “Patriot” employer, a business must (1) maintain headquarters in the United States, (2) pay 60 percent or more of each employee’s health care premiums, (3)  observe a policy of neutrality in union drives, and (4) provide a specified living wage and retirement benefit to employees.  Additionally, employers that employ 50 employees on average, must (5) preserve or increase full-time positions in the United States (relative to full-time positions in other countries) and (6) provide full salary and insurance benefit differentials for all National Guard and Reserve employees called to active duty.

Status: S.829 was introduced by Senator Durbin on April 20, 2009 and referred to the Committee on Finance.  On February 11, 2009, the House version of the bill, entitled the Eagle Employers Act, was introduced by Rep. Jim Gerlach (R-PA) and referred to the House Committee on Ways and Means. The House bill does not require employer neutrality in union organizing drives.