NEW DIRECTIONS: THE LABOR AND EMPLOYMENT AGENDA IN THE OBAMA ADMINISTRATION

Presented By:

Harold P. Coxson (Washington)

WHO SAID…
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“ELECTIONS HAVE CONSEQUENCES” “WHY WASTE AN ECONOMIC CRISIS” “IT’S LIKE TRYING TO DRINK WATER FROM A FIRE HOSE” (REFERING TO THE LEGISLATIVE AND REGULATORY AGENDA)

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Labor and Employment Agenda in Washington: Full Employment for Labor Lawyers
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LEGISLATION EXECUTIVE ORDERS REGULATIONS AND ENFORCEMENT PRIORITIES LITIGATION

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POLITICAL BACKDROP
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OBAMA & BIDEN WILL SUPPORT LABOR’S LEGISLATIVE AGENDA, AND WILL APPOINT GS G O PRO-UNION ACTIVISTS TO GOVERNMENT AGENCIES HEAVILY DEMOCRATIC, PRO-UNION MAJORITIES IN HOUSE & SENATE POTENTIAL FILLIBUSTER-PROOF SENATE FILLIBUSTER PROOF MAJORITY 2010 ELECTIONS APPEAR TO FAVOR DEMOCRATS

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UNION ORGANIZING AND COLLECTIVE BARGAINING
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“EMPLOYEE FREE CHOICE ACT” (EFCA)
(S. 560, Sen. Kennedy, D-MA and H.R. 1409, Rep. Miller, D-CA) 1. Automatic “card check” certification of union representatives without a secret ballot election; 2. Compulsory, binding first contract “interest” arbitration; and 3. Anti-employer penalties

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CURRENT STATUS & TIMING
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Senate will act first Unions do not have 60 votes for cloture Senators Specter (D-PA) and Lincoln (D-AR) have publicly stated opposition to EFCA as introduced on cloture and final passage Other Senate Democrats have expressed varying degrees of opposition: Pryor (AR), Landrieu (LA), Nelson (NE) B L d i (LA) N l (NE), Bennet and Ud ll t d Udall (CO), Warner and Webb (VA), Bayh (IN), Feinstein (CA), Carper (DE)

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CURRENT STATUS & TIMING
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Search for EFCA alternative, led by Harkin, Specter, Feinstein, Feinstein and Pryor Harkin has threatened to take bill to Senate Floor with or without “alternatives” alternatives Unions and Democrats probing for companies to “compromise” p Time challenges to EFCA before August Recess ( (Sotomayor confirmation, healthcare, y appropriations, etc.)

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EFCA POLITICAL ISSUES
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WILL UNIONS ACCEPT SENATE ALTERNATIVE (MINUS “CARD CHECK” AND COMPULSORY INTEREST ARBITRATION OF FIRST CONTRACTS) OR WILL THEY DEMAND MORE? WILL HOUSE AGREE TO SENATE-PASSED BILL AND AVOID CONFERENCE?

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WHAT’S LIKELY?
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Drop “Card Check”…Add “Quickie” or “Ambush” Elections (e.g., 10 14 Days From Union Petition) or “card 10-14 card check by mail” Add Union Access to Employees at Work (“Equal Access”) Modify M dif or D Drop Fi t C t First Contract “I t t “Interest” A bit ti t” Arbitration…Add Add “Final Offer” Arbitration, after “X” days of bargaining or perhaps as a remedy (Specter also wants mediation) Retain Anti-Employer Penalties from EFCA and add easier p y standards for Gissel bargaining orders Possibly add RESPECT Act limiting supervisory exclusion for “working supervisors” Other timing changes (elections bargaining Board (elections, bargaining, decisions, dissents) to expedite the process

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RESPECT ACT
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“Re-Empowerment of Skilled and

Professional Employees and Construction Tradesworkers (RESPECT) Act” (Last Congress: H R 1644 Andrews D-NJ and H.R. 1644, Andrews, S.969, Dodd, D-CT)
Eliminates terms “assign” and “responsibly to direct” from NLRA section 2(11) supervisory exclusion and exclusion, Requires “supervisor” to spend the “majority” of work time on other 2(11) duties” “hire, transfer, suspend, lay off, recall, promote, discharge, reward, or discipline other employees”

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RESPECT Act
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Thus, eliminates supervisory exclusion for all “working supervisors” removing them as agents of the employer for labor relations and subjecting them as “employees” to unionization, collective employees bargaining, union work rules, strikes, picketing, and union discipline in the same units as the employees they supervise

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OTHER TRADITIONAL LABOR LEGISLATION
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ANTI-STRIKER REPLACEMENT (eliminate employer’s right to hire “permanent” replacement workers during an economic strike) “INDEPENDENT CONTRACTOR” RECLASSIFICATION BILLS SECONDARY BOYCOTT BILLS (“hot cargo,” “recognitional picketing.” “common situs picketing”)

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OTHER TRADITIONAL LABOR LEGISLATION
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PATRIOT CORPORATIONS IN AMERICA ACT (employer “neutrality” in union organizing campaigns, et al.) i t l) PUBLIC SAFETY EMPLOYER-EMPLOYEE EMPLOYER EMPLOYEE COOPERATION ACT (collective bargaining rights for po ce, firefighters a d EMTs) g s o police, e g e s and s)

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TRADITIONAL LABOR LAW REGULATIONS
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GOVERNMENT CONTRACTOR “BLACKLISTING” REGULATIONS (forbid employers with certain labor and employment law violations from being eligible to bid on federal contracts) “PERSUADER ACTIVITY” (expand LMRDA PERSUADER ACTIVITY “persuader activity” regulations)

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OTHER LABOR LAW CHANGES
Obama’s Executive Orders
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Costs for employer’s response to union organizing activities unallowable (e.g., meetings, preparing or di t ib ti materials, hi i i distributing t i l hiring consultants or legal counsel) Employers must post notice of employees’ rights employees to organize Qualified workers must be retained by successor contractors for service contracts Encourage union-only project labor agreements (PLAs)
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NLRB ENFORCEMENT PRIORITIES
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NATIONAL LABOR RELATIONS BOARD
New Chairman Wilma Liebman (D) (term expires 8/11) Board Member Peter Schaumber (R) (term expires 8/10) Two Vacant Democratic Sea s o aca e oc a c Seats: Nominees Craig Becker (AFL-CIO; formerly SEIU) and Mark Pearce (private practice in Buffalo representing unions) p g ) One Vacant Republican Seat ● General Counsel Ron Meisburg (R) (term expires 8/10)

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NLRB ENFORCEMENT PRIORITIES
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Expect many decisions from Bush era to be reversed p y Business must be prepared for appeals to federal circuit courts Expect more “rulemaking” to avoid p p g pendulum swings g with each new Administration Achieve labor law “reform” outside of Congress? reform

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VIEWS OF NLRB NOMINEE BECKER
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Go back to 1935 Wagner Act. Employers should have NO role in union organizing or in employees’ p y g g p y selection of union representation; In effect, write 8(c) “free speech” proviso out of the Act by interpreting virtually all employer speech as inherently coercive; ”captive audience” speeches inherently coercive and unlawful; employers should b b l h ld be bound t th i own no solicitation/distribution rules; d to their li it ti /di t ib ti l unions should have access to employees at work; supervisory solicitation of union cards not per se objectionable; supervisory exclusion should be very limited -- managers, professionals & confidential employees; easier standard for Gissell bargaining orders, etc. Employees should be allowed to undertake repeated grievance strikes (in his view, they are not prohibited by law’s current restrictions on “intermittent” or “partial” strikes). p )

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EMPLOYMENT LAW CHANGES

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ADA Amendments Act (enacted in Bush
Administration)

Lilly Ledbetter Fair Pay Act (enacted
first week of Obama Administration; openended liability for pay discrimination and “other practices” with each discriminatory pay check) ” )

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EMPLOYMENT DISCRIMINATION AGENDA
Paycheck Fairness Act (unlimited punitive & compensatory

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damages under the Equal Pay Act; easier class certification for collective actions; more limited employer defenses; must allow employees to share information about pay)

Fair Pay Act (expands Equal Pay Act beyond gender to include
jobs dominated by race & national origin; foundation for “comparable worth”)

Equal Remedies Act ( li i d punitive & compensatory (unlimited ii
damages for Title VII and other anti-discrimination laws)

arbitration agreements for statutory employment law claims)

Arbitration Fairness Act (prohibit mandatory pre dispute pre-dispute

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FMLA LEGISLATION
HEALTHY FAMILIES ACT (paid sick leave)
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FAMILY LEAVE INSURANCE ACT (paid FMLA leave) FMLA ENHANCEMENT ACT (cover employers w/ 25+ employees, adds parental involvement, routine family medical needs, assisting elderly y , g y relatives) WORKING FAMILIES FLEXIBILITY ACT (negotiating individual employee requests for changes in work hours, work schedule, work location)
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OTHER EMPLOYMENT LEGISLATION
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EMERGENCY RETIREE HEALTH BENEFITS PROTECTION ACT ( (amends ERISA t prohibit changes, reductions, or d to hibit h d ti terminations of retiree health plans after the employee retires; requires retroactive application so that employers must “restore” benefits to retirees and provide information to restore retirees as to how to file claims) PROTECTING AMERICA’S WORKERS ACT (i (increased civil d i il and criminal penalties for OSHA violations, including individual jail terms; increased whistleblower protections)

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EMPLOYMENT LAW AGENDA
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HEALTH CARE IMMIGRATION “REFORMS” PENSIONS EDUCATION & TRAINING TRADE CORPORATE GOVERNANCE “GREEN JOBS” INTERNATIONAL LABOR STANDARDS

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COMPREHENSIVE HEALTHCARE REFORM

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Kennedy (HELP) – Baucus (Finance) Key Issues
Public (“government”) O ti ? P bli (“ t”) Option? Employer Mandate (“pay to play”)? How to Fund? Timing? Cloture Vote or Reconciliation Strategy? (only requires majorit )? req ires majority)?

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DOL ENFORCEMENT PRIORITIES
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U.S. DEPARTMENT OF LABOR
Secretary of Labor – Hilda Solis [former Rep. (D-CA)]
Very Pro-Union California Liberal Pro Union, Original co-sponsor of EFCA On Board of American Rights at Work Voted 97% w/ AFL-CIO AFL CIO Campaign quote: “Fervently believes that unions are vital to the health and strength of America’s communities” Top four contributors to her 2008 campaign: unions p p g

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DOL ENFORCEMENT PRIORITIES
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Increased anti-business enforcement of W-H / OFCCP, OSHA, ERISA/EBSA, OLMS Increased Rulemaking and Standard Setting (e.g.,OSHA Ergonomics enforced by General Duty Clause, “Persuader g y y , Activity”) Tougher Regional Office Actions More Aggressive Litigation with Fewer Settlements / Compliance Assistance Push to Ratify ILO Standards

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EEOC ENFORCEMENT PRIORITIES
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“ADA Amendments Act” Regulations “Systemic” Initiative GINA Rulemaking ADEA Regulations EEO-1 Ledbetter Guidance Care Giver Guidance Perhaps, EEOC to Challenge “No Reapplication” Language in Releases as Retaliation

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WHO SAID…
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“MAY YOU LIVE IN INTERESTING TIMES” “ARE WE HAVING FUN YET?”

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