On March 11, the Senate Committee on Health Education Labor and Pensions (”HELP”) convened a hearing on the problem of gender pay inequity entitled, “A Fair Share for All: Pay Equity in the New American Workplace.”In his opening remarks, Senator Tom Harkin (D-Iowa), Chairman of the Committee, noted that despite passage of the Equal Pay Act in 1963 women today make only 77 cents for every dollar a man makes. Sen. Harkin characterized pay inequity as “not just a women’s issue, but a family issue” and expressed strong support for the Paycheck Fairness Act introduced by Senators Christopher Dodd (D-Connecticut) and Barbara Mikulski (D-Maryland), which was passed overwhelming by the House in January. Harkin said the legislation would provide the same pay for equivalent jobs, require employers to disclose pay scales and job descriptions, and give women more information to enable to negotiate better deals for themselves.

Ranking Member Michael Enzi (R-Wyoming) expressed his concern that the Paycheck Fairness Act would subject employers to more litigation, particular large class actions. He also criticized the bill for adding more “burdensome government reporting requirements,” and argued that improved job training nationwide and an improved economy would resolve many pay inequity issues. Sen. Dodd rejected criticism about the possibility for increased litigation and argued that the legislation would simply ensure women get the pay that they deserve.

The first witness at the hearing was the Honorable Rosa DeLauro, U.S. Representative for Connecticut’s 3rd District. She stated that the Paycheck Fairness Act would “close numerous longstanding loopholes in the Equal Pay Act” and stiffen “penalties for employers who discriminate based on gender.” Rep. DeLauro noted that the legislation would strengthen remedies to include punitive and compensatory damages, remedies already afforded to victims of race-based discrimination under the law. In response to the prediction that the legislation would result of in torrent of class actions lawsuits, Rep. Delauro argued that employers would successfully adjust to the new legislation and avoid any increased litigation effect, just as employers did in response to the passage of race-based discrimination laws.

The next witness was Stuart Ishimaru, Acting Chairman of the Equal Employment Opportunity Commission (”EEOC”). In addition to reiterating many of the facts showing that the gender wage gap persists, Ishimaru noted that caregiver discrimination is a part of the problem. Ishimaru explained that women are more than twice as likely to work part time, often because they need to provide care for kids and other family members, and that part time work pays less and is less likely to come with benefits. Ishimaru stated, “gender-based wage discrimination is especially untenable now, in this economy, as most families have come to rely on the incomes brought in by working women to make ends meet.” Ishimaru continued that EEOC’s “work would undoubtedly be strengthened by the passage of the Paycheck Fairness Act” and that the legislation would “provide essential tools” such as improved wage data “towards realizing the promise of equal pay.”

Heather Boushey, Senior Economist at the Center for American Progress, also testified before the panel stressing that women lose an average of $434,000 over a lifetime due to the gender wage gap. Boushey stated that the “largest chunk of the gender pay gap is due to combined effect of the segregation of men and women into different industries and occupations.” Boushey argued that the “data provisions of the Paycheck Fairness Act will allow employees to access the information they need to understand if their pay is at the market rate.”

The remaining witnesses were Deborah L. Brake, Professor of Law at the University of Pittsburgh, Deborah L. Frett , Chief Executive Officer of the Business and Professional Women’s Foundation, and Jane McFetridge, a partner at Jackson Lewis, LLP.

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.

On February 18, 2010, the Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking (NPRM) to amend its regulations to more clearly define the “reasonable factors other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA). This proposed rulemaking seeks to address the scope of the RFOA defense under EEOC’s proposed regulations concerning disparate impact under the ADEA, which were published on March 31, 2008.

This NPRM follows two important Supreme Court cases on the RFOA defense - Smith v. City of Jackson, 544 U.S. 228 (2005) and Meacham v. Knolls Atomic Power Laboratories, 128 S. Ct. 2395 (2008). In Smith, the Supreme Court allowed disparate impact claims of discrimination under the ADEA and, following the Court’s decision, EEOC has said that the “reasonable factors other than age” test is the appropriate standard for determining the lawfulness of a practice that disproportionately affects older individuals. Subsequently, in Meacham, the Supreme Court held that an employer bears both the burden of production and the burden of persuasion for a RFOA defense in an ADEA disparate-impact claim.

EEOC’s proposed rules clarify that the applicability of the RFOA defense turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts. This standard is lower than Title VII’s business-necessity test, but it is higher than the Equal Pay Act’s “any other factor” test.

Relying on the “reasonable person” principles of tort law, EEOC proposed a non-exhaustive list of relevant factors including, among others, 1) the extent to which the employment practice is a common business practice; 2) the severity of the impact of the practice on individuals within the protected age group, both in degree of injury and scope of impact; and 3) the extent to which the employer took steps to assess and ameliorate the adverse impact of the practice on older workers.

The proposed regulations carry a 60-day public comment period. Written comments should be submitted by April 19, 2010, to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE, Suite 4NW08R, Room 6NE03F, Washington, D.C. 20507. Comments may also be submitted electronically at www.regulations.gov.

On February 12, 2010, the Department of Labor (DOL) published a new rule regarding the H-2A temporary agricultural worker program. This rule will strengthen worker protections for both U.S. and foreign workers and ensure the integrity of the H-2A program. Major features of the rule include: 

• Requires documentation from employers showing compliance with the prerequisites for bringing H-2A workers into the country. Employers can no longer simply attest compliance.
• Returns to the USDA Farm Labor Survey, instead of the Occupational Employment Statistics Survey, as the basis for the determining the Adverse Effect Wage Rate;
• Reinstates the requirement that State Workforce Agencies inspect and approve employer-provided housing before the Department issue H-2A labor certification;
• Creates a national electronic job registry for all H-2A job orders to improve US worker access to agricultural jobs;
• Requires employers to provide workers with copies of the job orders before departure and to display a poster describing employee rights in a language common to the workers at the work site;
• Prohibits the use of multi-area itineraries by H-2A labor contractors

            The rule will become effective March 15, 2010.

On February 9, 2010, Republican Senators, joined by two Democrats, blocked a floor vote on the controversial nomination of Craig Becker to the National Labor Relations Board. By a 52-33 vote, Senate Democrats fell short of the 60 votes necessary to move Becker’s nomination to a floor vote. Sens. Ben Nelson (D-NE) and Blanche Lincoln (D-AR) voted against Becker, who is associate general counsel to the Service Employees International Union (SEIU). Newly-seated Massachusetts Sen. Scott Brown (R-MA) joined his Republican colleagues in voting against the Becker nomination.

Becker was originally nominated to the NLRB in 2009, but Sen. John McCain (R-AZ) placed a “hold” on the nomination and requested that Sen. Tom Harkin (D-IA) hold a hearing. After the nomination was returned to the White House when the Senate adjourned in December, President Obama re-nominated Becker and Sen. Harkin agreed to hold a hearing. A summary of the February 2 hearing is posted here.

On Tuesday, February 2, 2010, the Senate Health, Education, Labor and Pensions (”HELP”) Committee held a hearing concerning the nomination by President Obama of Service Employees International Union (”SEIU”) associate general counsel Craig Becker to the National Labor Relations Board.

In 2009, Sen. John McCain (R-AZ) placed a “hold” on Becker’s nomination and requested a hearing, effectively derailing Becker’s nomination. After the Senate returned the Becker nomination when it adjourned in December, President Obama renominated Becker on January 20, 2010.

Becker was the only witness at the hearing. Sen. Harkin has scheduled a February 4 meeting, at which time the committee is expected to vote on Becker’s nomination. If Becker is approved again by the HELP Committee, Democrats are expected to try to bring the NLRB nominations to the floor for a full Senate within the next few weeks.

Sen. Harkin commenced Tuesday’s hearing by stating that “we are here today to take the rather unusual step of holding a hearing on a nominee for the National Labor Relations Board.”  Harkin explained that, although “it has not been the standard practice of this committee to hold hearings on NLRB nominations,” and in fact the last time the Committee held such a hearing was in 1993 on the nomination of the Chair of the Board, “my colleagues on the other side of the aisle have requested a hearing. And while I am reluctant to further prolong the consideration of an obviously well-qualified nominee, I was willing to bend over backwards to accommodate that request because I think the work of the NLRB is tremendously important and deserves this committee’s attention.” 

Harkin called Becker “one of the preeminent labor law thinkers in the United States” and added that “I can say with great confidence, he will be an invaluable addition to the NLRB.”  He remarked that much of the concern about Becker’s nomination seems to be focused on academic articles he has authored.  On this point, Harkin stated that “he has taken a critical approach to existing law … but that’s what academics are supposed to do - to contribute to the marketplace of ideas.” Harkin also pointed out that the Committee has confirmed members with both union and management backgrounds in the past “without any great cause for concern.”

Sen. Johnny Isakson (R-GA), standing in for Ranking Member Michael Enzi (R-WY), asked that two letters received by the Committee on Monday, both in opposition to Becker’s nomination, be included in the record. One letter was from 23 major trade associations, and the other was from an organization representing 600 manufacturers. 

Referring to the controversial Employee Free Choice Act (”EFCA”) currently before Congress, which would allow a union to become certified without a secret ballot election, Sen. Isakson observed that “some have expressed concerns that Mr. Becker’s past writings have indicated a belief that the NLRB has the authority to make some of the dramatic changes included in the card check bill without congressional action.”  Isakson stated that he asked Becker in a private meeting if, as a member of the NLRB, he would attempt to certify a union without a secret ballot election, and that Becker had answered no, the Board can only certify results of Board-conducted elections.

Sen. Isakson then addressed the concern that Becker “has advocated new body of campaign rules that would severely limit the ability of employers to voice their opinion on unionization,” including rules on captive audiences and union access to private employer property.  Again, Isakson stated that, in a private meeting, Becker “has assured me that these comments…were scholarly writings made as a scholar seeking to further meaningful and wide-ranging analysis of the law” and that these statements “will not control his judgment if he is confirmed as a member of the NLRB.”

On the same subject, Sen. Harkin asked Becker to address the concern of some critics that he would attempt to implement the “card check” process proposed in the EFCA administratively. Specifically, he asked Becker to explain how the National Labor Relations Act would constrain the Board’s ability to do so.  Becker replied that the Act “clearly precludes certification in the absence of a secret ballot election.”

Sen. Isakson asked, “Do you favor the NLRB limiting employers’ involvement in the election process?” Becker replied that current law clearly provides employers the right to free speech, citing the National Labor Relations Act and the First Amendment. He emphasized that employers have legitimate First Amendment rights, including the “indisputable right to express views on whether employees should unionize.”

Sen. McCain (R-AZ) asked Becker if he provided advice to ACORN for his current employer, and Becker replied that he had never done so. McCain then asked if Becker discussed labor law or efforts to organize home care workers with former Illinois governor Blagojevich.  Becker responded that he represented SEIU locals in Illinois, which had been working for a long period of time to organize home care workers. He stated that he had discussions with staff of former governor Blagojevich, and, on one occasion, with the former governor himself, on some technicalities related to the drafting of legislation that extended collective bargaining to those workers.

McCain’s most heated questions related to Becker’s intent to recuse himself from any Board matters involving the SEIU, his current employer. Sen. McCain asked Becker, “How many cases involving SEIU will you have to recuse yourself from?” Becker replied that the number is uncertain, but noted that the SEIU itself is rarely a party to Board proceedings.  He stated that he takes his ethical obligations very seriously, and that concerns about his ability to be impartial led to his execution of an ethics agreement, which details the circumstances under which he would recuse myself.  Under the terms of this ethics agreement, Becker pledged that he would recuse himself from any matter on which SEIU is a party for two years. In response to McCain’s questions, Becker promised that “I will comply with the terms of that pledge scrupulously,” to which McCain responded, “That’s not good enough.”

Becker received somewhat friendlier treatment from Sen. Robert Casey (D-PA), who remarked that “we don’t confirm judges that are robots…we confirm people that are human beings, that have a point of view and know how to argue and battle and be advocates.” Casey stated that “we want people who understand what it’s like to advocate for a position, but that doesn’t mean that you can’t exercise a kind of objectivity.”

At the close of the hearing, Sen. Harkin adjourned the Committee until Thursday morning at 10:00 a.m. He announced that any additional questions from members must be submitted before 10:00 a.m tomorrow morning, so that Becker may have time to reply before Thursday.

On Tuesday, February 2, 2010, at 4:00 p.m., the most controversial of President Obama’s nominees to the National Labor Relations Board (”NLRB”), Service Employees International Union associate general counsel Craig Becker, will appear at a hearing before the Senate Health, Education, Labor and Pensions (”HELP”) Committee. In 2009, Sen. John McCain (R-AZ) placed a “hold” on Becker’s nomination and requested a hearing, effectively derailing Becker’s nomination. After the Senate returned the Becker nomination when it adjourned in December, President Obama renominated Becker on January 20, 2010 by President Obama.

Senate Republicans contend that Becker’s union ties and prior writings raise serious questions about his suitability to serve on the five-member board. Before relenting this week, Sen. Harkin (D-IA) and other Senate Democrats rejected these arguments, noting that by virtue of the partisan appointment process to the Board, in which the White House appoints a three-to-two partisan majority, Board members typically have union or management ties. Becker has submitted written answers to over 280 written questions from HELP Committee Republicans and made himself available to meet individually with Senators critical of his nomination, but Senate Republicans, led by Sen. McCain, have insisted that a formal confirmation hearing be held. 

By holding a hearing, Senate Democrats are seeking to break an impasse in the Board that has left it short-handed since early 2008. For several years, the Senate has considered multiple nominations to the NLRB in a bloc and Senate Democrats have continued to insist that Becker be voted on with President Obama’s other two nominations, Democrat union attorney Mark Pearce and Republican Senate staffer Brian Hayes. As a result, the Pearce and Hayes nominations have remained in limbo, and neither nominee received a floor vote in 2009. Previously, in 2009, the Senate HELP Committee voted 15-8 to send Becker’s nomination to the Senate floor, with two Republicans joining committee Democrats voting in Becker’s favor.

At the time of publication, Becker is the only scheduled witness at the hearing.  Sen. Harkin has scheduled a February 4 meeting, at which time the committee is expected to vote on Becker’s nomination. If Becker is approved again by the HELP Committee, Democrats are expected to try to bring the NRLB nominations to the floor for a full Senate within the next few weeks.

On January 20, 2010, President Obama renominated Service Employees International Union (SEIU) associate general counsel Craig Becker to the National Labor Relations Board. The Senate returned Becker’s controversial nomination to the White House on December 24 when it adjourned sine die.

In 2009, the Senate HELP Committee voted 15-8 in favor of sending Becker’s nomination to the Senate floor, but Sen. John McCain (R-AZ) immediately placed a “hold” on Becker’s nomination, effectively barring a vote on the nomination. Sen. McCain will likely re-issue a hold on the nomination.

President Obama’s other two pending NLRB nominees, Democrat union attorney Mark Pearce and Republican Senate staffer Brian Hayes, did not receive floor votes after their unanimous approval by the HELP Committee, but their nominations were not returned to the White House. President Obama and Senate Democrats seek Senate consideration of all three nominations in a bloc, in line with recent Senate confirmation practices.

Becker’s nomination will be considered again by the Senate HELP Committee. If approved a second time by the committee, Senate Democrats are expected to seek cloture to limit debate and bring the nomination to the Senate floor for a vote.  It is unclear whether Senate Democrats will be able to overcome Sen. McCain’s hold.

Core Provisions: This resolution calls for the mandatory use of the E-Verify program by employers of workers within the United States as well as enforcement policies that hold both employers and employees responsible for violations of United States immigration law. The resolution also states that it is a “critical responsibility” of the Federal Government to install and sustain border infrastructure and manpower to control the United States borders and protect from unauthorized passage of persons or contraband. Additionally, the resolution states that no immigration reform adopted by Congress should legalize, condone, or grant amnesty for the otherwise unlawful entry or presence of individuals in the United States.

Status: Rep. Jason Chaffetz (R-UT) and twenty-one co-sponsors introduced the resolution on January 21, 2010. It was referred to the House Committee on the Judiciary and the Committees on Education and Labor, and Homeland Security on the same day.

On December 24, 2009, the Senate returned seven nominations to the White House as it adjourned sine die until January 20, 2010. The returned nominees included Craig Becker, an Service Employees International Union (SEIU) associate general counsel who had been nominated by President Obama to the National Labor Relations Board on July 9, 2009. 

The Senate HELP Committee voted 15-8 in favor of sending Becker’s nomination to the Senate floor, but Sen. John McCain (R-AZ) immediately placed a “hold” on Becker’s nomination, effectively barring a vote on the nomination. Sen. McCain requested a hearing on Becker’s nomination because he had “concerns regarding Mr. Becker’s written views, which indicate that he would prevent employers from having a role in union representation elections in their workplaces by doing away with requiring fair, secret ballot union elections when requested by an employer.” HELP Committee Chairman Tom Harkin (D-IA) stated that a hearing was not necessary and departed from longstanding Senate practice.

According to a Congressional Research Service report, under Senate rules, unconfirmed nominations are returned to the president at the end of a session or when the Senate adjourns for more than 30 days unless the Senate unanimously consents to holding the nomination over until the Senate reconvenes. President Obama’s options include resubmitting Becker’s nomination in January, making a recess appointment of Becker, or submitting a new nominee. The White House has not issued any statement on the return of the Becker nomination.

President Obama’s other two pending NLRB nominees, Democrat union attorney Mark Pearce and Republican Senate staffer Brian Hayes, did not receive floor votes after their unanimous approval by the HELP Committee, but their nominations were not returned to the White House.