By Howard Rubin and Don Stait
The Daily Record Newswire
Prior to the midterm elections, with both the House and the Senate controlled by the Democrats, President Obama sought to drive his labor and employment agenda through legislation. Things have changed. Now, Republicans control the House of Representatives and the Senate is more evenly split between the two parties.
What effect this shift in power will have upon any piece of legislation currently wending its way through Congress is still anyone’s guess, but it seems likely that the Obama administration will turn its attention away from Congress and toward federal agencies to achieve its labor and employment goals.
Employers can expect greater activity from the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board.
Also, there should be greater congressional oversight of the agencies’ actions by House Republicans who will control committees and craft appropriations bills to fund these agencies.
Health care
One of the most contentious pieces of legislation coming out of the nation’s capital in recent years is the Affordable Care Act. Many Republicans’ entire campaigns revolved around its repeal. Given that the Democrats still control the Senate and Obama has veto power, repeal of the entire law is unlikely, but Congress has other options to challenge its implementation.
Unpopular provisions, such as one requiring businesses, charities and state and local governments to file 1099 forms in any year that they purchase more than $600 in goods from another business, will likely be repealed. That provision has come under attack by both parties and is considered a burden by both businesses and the IRS.
House Republicans will likely try to deny funding to the agencies tasked with administering the law and refuse to approve any appropriations bill that would include money to implement it.
Republican gains extended to the state legislatures as well as Congress, so state challenges of the new law’s implementation also should increase.
Labor law
Labor’s key legislative aim during the first two years of President Obama’s administration was to pass the Employee Free Choice Act, which included shorter voting periods, public balloting and enhanced penalties for employers that discuss union issues with employees. The bill failed and is unlikely to be resurrected given its opposition by moderate Democrats as well as Republicans; however, it is still possible for some of the law’s objectives to be implemented even without congressional action.
The NRLB can institute a number of significant policy changes through rulemaking and opinions and is currently considering a number of new rules that raise the same concerns as the Employee Free Choice Act. Among these are: 1, a limited election period that would deprive employees of the chance to become familiar with the realities of unionization; 2, the loss of a secret-ballot election that could result in intimidation and coercion; and 3, enhanced penalties that could act to inhibit employer free speech in union organizing campaigns.
The Department of Labor is in the process of issuing regulations that will enhance organized labor’s grip on federal contractors. These include: 1, requiring unionized workforces on certain construction projects; 2, requiring succeeding employers to offer employment to the preceding employer’s employees, thus potentially causing the successor to assume the predecessor’s union contract; 3, preventing contractors from using certain funds to oppose union organizing; and most importantly, 4, allowing agencies to favor unionized contractors’ bids when competing for government contracts.
Employment law
The Democrats made a last-minute attempt to push through the Paycheck Fairness Act during the lame-duck session of Congress, but came up two votes short. Republican filibustering helped prevent the bill’s passage, which would have made it easier to seek damages over pay discrimination based on gender. Critics of the bill worried that it would lead to excessive litigation and limit employers’ ability to pay different wages based on merit.
Workplace safety
The Robert C. Byrd Miner Safety and Health Act was a sweeping OSHA reform bill that gained support and popularity during the recent gulf oil spill. Among other things, the bill would have significantly increased employer civil and criminal penalties for violations of the Occupational Safety and Health Act, strengthened whistleblower protections, and provided greater rights for victims of accidents and their family members.
Although the legislation passed the House Education and Labor Committee in July, it was not brought to a vote before the House nor has it advanced in the Senate. It seems likely that the bill is dead, another victim of the shift in power on Capitol Hill.
Howard Rubin is a shareholder in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or hrubin@littler.com. Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or dstait@littler.com.
