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Washington Labor & Employment Wire » Other

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.


Corporate Executive Accountability Act of 2010 (“Say on Pay Bill”)


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Core Provisions: The Corporate Executive Accountability Act (S. 3049)comprises part of the Democrats’ comprehensive financial regulatory reform package, building on separate legislation previously passed in the House (H.R. 3269). The Act aims to reform executive pay practices by granting shareholders a non-binding vote on executive pay packages and requiring companies to disclose the ratio of CEO pay to median company worker pay in their annual reports. Additionally, the Act would hold executives accountable for failure or fraud by giving regulators and investors the authority to seize bonuses from executives who have engaged in misconduct, and by prohibiting “golden parachute” arrangements for executive who are fired for cause. The Act would also prohibit the executives of publicly listed companies from cashing out all of their vested equity compensation at once in order to encourage long-term corporate viability over short-term profitability practices that encourage excessive risk taking. The Act is sponsored by Sen. Robert Menendez (D-NJ).

Bill Status: The Bill was introduced in the Senate on February 26, 2010 and referred to the Senate Committee on Banking, Housing and Urban Affairs.


President Obama Signs FY 2010 Defense Appropriations Bill (H.R. 3326) Into Law


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On December 19, 2009, President Obama signed the FY 2010 Defense Appropriations Bill (H.R. 3326) into law. The bill, which passed the Senate 88-10 on December 19, 2009, was nearly held up by a strategic Republican filibuster the previous day, achieving cloture by only four votes (63-33). The filibuster was aimed at stalling the progress of Democratic-sponsored health reform legislation concurrently under consideration in the Senate. The House of Representatives had previously approved the FY 2010 Defense Appropriations Bill on September 16 by a 395-34 vote.

The bill includes provisions to extend unemployment and COBRA benefits and also prohibits Defense Department contractors and subcontractors from requiring their employees and independent contractors to agree to arbitrate certain claims. Those provisions are discussed in greater detail in the Washington Labor & Employment Wire’s previous post on the House’s passing of this legislation.

The FY 2010 Defense Appropriations Bill is Public Law No: 111-118.


The Taxpayer Responsibility, Accountability, and Consistency Act of 2009 (S. 2882)


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Core Provisions: This legislation would amend the Internal Revenue Code to modify the rules concerning the treatment of independent contractors to make it more difficult and costly for businesses to incorrectly classify employees as independent contractors.

In addition to significantly increasing the amount of penalties associated with filing tax returns with incorrect information concerning individuals’ employment status, the bill would change the “safe harbor” provisions of section 530 of the Revenue Act of 1978, which allows employers to designate employers as independent contractors for employment tax purposes, regardless of the workers status as an independent contract under common law test, unless the employer has no “reasonable basis” for such treatment. The amended safe harbor provision would only considered a business to have such a reasonable basis for classifying a worker as an independent contractor if it, or its predecessor, has not treated any other individual holding a substantially similar position as an employee since December 31, 1977, and the business’s treatment of the worker as an independent contractor is in reasonable reliance on: (1) “a written determination … addressing the employment status of the individual or an individual holding a substantially similar position” with the business; or (2) ” a concluded examination (for employment tax purposes) of whether the individual (or an individual holding a substantially similar position) should be treated as an employee ….”

If passed into law, the bill would also grant individuals classified as independent contractors the right to petition the Secretary of the Treasury for a determination of their status for employment tax purposes.

Status: Senator J. Kerry (D-MA) introduced the legislation on December 15, 2009, and it was referred to the Senate Committee on Finance.


House Approves FY2010 Defense Appropriations Bill (H.R. 3326)


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On December 16, 2009, the House approved the FY 2010 Defense Appropriations Bill by a 395-34 vote. This most-recently approved version of the Defense Appropriations Bill includes provisions to extend unemployment and COBRA benefits and also prohibits Defense Department contractors and subcontractors from requiring their employees and independent contractors to agree to arbitrate certain claims. 

If signed into law, the bill would extend from nine to fifteen months the 65-percent COBRA health insurance subsidy for individuals who have lost their jobs. While the previous extension of COBRA benefits passed by Congress earlier this year applied to individuals who were involuntarily terminated between April 1, 2008 and December 31, 2009, this bill would extend the job loss eligibility date to February 28, 2010. In addition, the bill would extend previously expanded unemployment benefits, including increased payouts and longer duration of benefits, through February 28, 2010.

The Defense Appropriations Bill would also prohibit defense contractors or subcontractors from entering into or enforcing any agreement with their employees or independent contractors that would require them to arbitrate claims under Title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention. This provision would apply to contracts over $1 million that are awarded more than sixty days after the effective date of the Act. The bill would, however, allow the Secretary of Defense to waive this prohibition if necessary to avoid harm to the national security interests of the United States.

The bill now moves to the Senate for consideration. The Senate previously passed a different version of this appropriations bill in October.


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.


Senate Judiciary Committee Holds Hearing on the Notice Pleading Restoration Act

On December 1, the Senate Judiciary Committee held a hearing to consider legislation that would reverse two recent Supreme Court rulings that heightened the civil pleading standard. The hearing, called “Has The Supreme Court Limited Americans’ Access To Courts?”, was held to discuss the Notice Pleading Restoration Act of 2009 (S. 1504), introduced July 22 by Sen. Arlen Specter (D-Pa) and co-sponsor Russ Feingold (D-WI).  

The legislation would reverse Bell Atlantic Corporation v. Twombly, issued in 2007, and Ashcroft v. Iqbal, issued in May.  In Twombly, an antitrust case, the Court held that a complaint must contain facts that plausibly entitle the plaintiff to relief instead of mere conclusory statements. The Iqbal decision extended this standard to all civil complaints. The Act would restore the more lenient notice prior pleading standard articulated in Conley v. Gibson, which held that a court could dismiss a complaint only if it appeared without a doubt that a plaintiff would be able to prove no set of facts in support of her claim.

In his opening statement, Senator Patrick Leahy (D-Vt), Chairman of the Judiciary Committee, testified that the two decisions are “just the latest example of conservative judicial activism” and that legislation was necessary to ensure that Americans could access the court system. Leahy stated that the new precedent “will result in prematurely closing the courthouse doors on ordinary Americans seeking the meaningful day in court that our justice system has provided” and noted that “wealthy corporate defendants” “would prefer never to be sued and never to be held accountable.”

The committee heard testimony from Stephen Burbank, a professor at the University of Pennsylvania Law School, who expressed his concerns that the Court’s recent decisions “may contribute to the phenomenon of vanishing trials, the degradation of the Seventh Amendment right to jury trial, and the emasculation of private civil litigation as a means of enforcing public law.” He testified that “the primary purpose of any legislation responding to the Court’s decisions should be to restore the status quo” “until careful study, enabled by a process that is open, inclusive, and thorough, supports the need for change.” 

John Payton, President of the NAACP Legal Defense and Educational Fund, testified that the heightened pleading standards create “a real danger” that “meritorious civil rights cases will be dismissed.” Payton urged Congress to “act immediately” to protect victims of discrimination.

On the other hand, former Solicitor General Gregory Garre defended the Court’s decisions and testified that Twombly and Iqbal were “correctly decided” and “firmly grounded in decades of prior precedent.” Garre warned that permitting cases with “implausible” claims to go forward would result in “enormous costs.”


House Passes Affordable Health Care for America Act (H.R. 3962)

Core Provisions: The House passed its version of a comprehensive health care reform bill on November 7, 2009 by a party-line vote of 220-215, with all but one Republican member of the House, Anh “Joseph” Cao of Louisiana, voting against the measure.

The bill contains a number of provisions that affect employers. Employers must offer employees and their families health care coverage pursuant to an established employer health care plan or other qualified plan. If the employee accepts the offer of coverage, the employer is obligated to make timely contributions to fund the coverage. As an alternative to directly insuring employees, the bill also establishes a Health Insurance Exchange that will allow small employers with 25 or fewer employers access to various coverage options for their employees from public and private insurers. Within three years of the bill becoming law, employers with 100 or fewer employees would have access to the Health Insurance Exchange, and, over time, the bill would grant larger employers access to the Exchange.

With respect to full-time individual employees, employers must cover a minimum of 72.5 percent of the applicable premium of the lowest cost plan offered by the employer. With respect to family coverage, employers must cover a minimum of 65 percent of the applicable premium of the lowest cost plan offered by the employer. Part-time employees must be covered proportionately based on their average weekly hours compared to the minimum weekly hours of a full-time employee.

While employers are required to offer employees coverage, beginning in the second year following the bill becoming law, if an employee declines the offer but otherwise obtains coverage through the Exchange, the employer is required to make a timely contribution to the Exchange in an amount equal to 8 percent of the average wages paid to the employee during the period of enrollment, but not in excess of the minimum employer coverage requirements discussed above. Small employers are required to contribute lower percentage amounts to the Exchange in these instances, with the smallest employers (those with annual payrolls lower than $500,000) completely exempt from the Exchange contribution requirement.

Employers participating in the health care coverage system created by the bill that fail to comply with the coverage requirements with respect to any covered employee will be taxed $100 per day (per affected employee) until the employer meets its coverage requirements. Employers have the option of declining to participate in the health care coverage system created by the bill, but must pay an excise tax of 8 percent of the annual wages paid to its employees. Small employers that elect not to participate will incur a lower excise tax, with the smallest employers (those with annual payrolls lower than $500,000) completely exempt from the excise tax.

H.R. 3962 differs notably in a number of respects from the health care reform bill approved by the Senate Finance Committee on October 13, 2009. Perhaps most significantly, H.R. 3962 mandates that employers offer coverage to employees or alternatively, if eligible, contribute to the Health Insurance Exchange on behalf of employees. Unlike H.R. 3962, the Senate Finance Committee’s bill contains no direct requirement that employers offer coverage in the near future. The Senate Finance Committee’s bill eventually imposes penalties for failing to offer employees coverage, but does not do so until July 1, 2013. At that time, employers with more than 50 employees that do not offer health insurance coverage would be required to reimburse the government for tax credits and subsidies provided to employees who purchase individual health insurance coverage. As discussed, H.R. 3962 in contrast imposes a direct excise tax on most employers’ payrolls for failure to offer coverage.

Status: Rep. Dingell (D-MI) introduced the bill to the full House on October 29, 2009. The House passed the bill by a vote of 220-215 on November 7, 2009. The bill will now move to the Senate for consideration.


Congress Passes Extension of Unemployment Insurance Benefits


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On November 5, 2009 the House approved the Senate’s amended version of H.R. 3548 by a 403-12 vote. The Senate approved the legislation one day earlier by a vote of 98-0.

The bill amends the Supplemental Appropriations Act of 2008 to provide additional temporary emergency unemployment compensation. It is the fourth extension of unemployment benefits that Congress has passed in the last 18 months. If enacted into law, the bill will provide an additional 14 weeks of unemployment compensation in all states, plus an additional six weeks of compensation in states where the three-month average unemployment rate is 8.5% or higher.

This final vote by the House sends the bill to President Obama. The White House has already announced the President’s intention to sign the bill into law Friday morning. H.R. 3548 is sponsored by Rep. Jim McDermott (D-WA) and was initially introduced in the House on September 10, 2009.


Emergency Influenza Containment Act (H.R. 3991)


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Core Provisions: This legislation would require employers who send employees home, or tell them to stay home, because they have symptoms of a contagious illness, or have been in close contact with a person who has a contagious illness, to pay the employees sick leave for each workday the employee complies with the order, up to a maximum of five workdays during a 12-month period.  The bill would apply to any employer with more than 15 employees, and to all full and part-time employees.  The Act was proposed to ensure that employees with symptoms of a contagious disease, including the H1N1 virus, are able to follow the recommendations of their employer and public health authorities without suffering financial harm.  The Act would take effect 15 days after it is signed into law and would expire in two years. 

Status: Rep. George Miller (D-CA) and six co-sponsors introduced the bill on November 3, 2009.  It was referred to the House Committee on Education and Labor that same day.