EFCA

While the Employee Free Choice Act (“EFCA”) received front page treatment immediately after the November ’08 elections and through the spring, 2009, it has slowly lost its life force, so as to become moribund.  While quickly introduced into the House, it rapidly lost support among key Democratic Senators, including Sen. Arlen Specter (D – Pa.) and Sen. Dianne Feinstein (D – Ca.).  By June, the Senate Democrats and labor were at least six votes short of that needed for cloture and to end debate.  Since then, the bill has been comatose, on a deathbed.  While the bill is labor’s priority, it has received much less attention from President Obama, who has focused his energy on health care, climate change, and the great recession.

Many commentators have speculated that labor has a fighting chance to revive and pass EFCA if it pushes hard in 2010 before the mid-term elections, with compromises in mind.  Such compromises would include super majority card checks, quickie elections, or some combination of both; elimination or modification of mandatory interest arbitration for first time labor agreements, and implementing financial penalties and fines for employers who fail to bargain in good faith, or engage in surface bargaining; guaranteeing unions access to employees at the workplace, and limiting or restricting the employer’s right to engage in captive audience speeches; and imposing civil monetary penalties for unfair labor practices.

The chances of passage could be enhanced if a compromise version was tacked on as an amendment to a job creation or other large bill.  But the compromise would have to be just that, and not hand either management or labor a lopsided win.  Such an effort will have to begin now, as the midterm elections are only 10 months away, and all indications are that Democrats in both Houses will lose a significant number of seats.  One can imagine the frustration of SEIU President Andrew Stern as he reviews union expenditures after his weekly visits to the White House.

This next two quarters, Arnstein & Lehr will be conducting several seminars to educate employers on how to remain union free, no matter what happens with card check at the end of the day.   We will keep you informed of developments, and look forward to seeing you there.  Happy New Year to all.

Mark A. Spognardi is a partner in Arnstein & Lehr’s Labor and Employment Law Department.  His practice is devoted exclusively to representing management in  traditional and non-traditional labor and employment law litigation and counseling.

Rep. George Miller (D-Calif.) Nov. 3 introduced legislation (H.R. 3991) that would guarantee five paid sick days for workers sent home or told to stay home by their employer in relation to a “contagious” illness, such as the H1N1 virus.

Miller (D-Calif.), chairman of the House Education and Labor Committee, introduced the “Emergency Influenza Containment Act”with seven co-sponsors, including Rep. Lynn Woolsey (D-Calif.), chairman of the Workforce Protections Subcommittee. The bill was referred to Miller’s committee.

Under the legislation, employees who follow their employer’s direction to stay home because of contagious illness could not be fired, disciplined, or made subject to retaliation for following directions. Employers who fail to provide the leave or retaliate against employees would be subject to penalties under the Fair Labor Standards Act.

“Sick workers advised to stay home by their employers shouldn’t have to choose between their livelihood, and their co-workers’ or customers’ health,” Miller said. “This will not only protect employees, but it will save employers money by ensuring that sick employees don’t spread infection to co-workers and customers, and will relieve the financial burden on our health system swamped by those suffering from H1N1.”

The bill would guarantee a sick worker up to five paid sick leave days a year if an employer “directs” or “advises” a sick employee to stay home or to go home.

The legislation would cover full- and part-time workers in businesses that have 15 or more workers and do not currently provide at least five days of paid sick leave.

The bill would allow employers to end paid sick leave at any time by informing the employee that the employer believes the worker is well enough to return to work. Under the bill, employees could continue on unpaid leave under the Family and Medical Leave Act or other existing sick leave policies.

The legislation defines “contagious illness” as “influenza-like illnesses such as the novel H1N1 virus.”

The bill would take effect 15 days after being signed into law and would sunset two years after enactment.

Hearing Expected Week of Nov. 16
The House Education and Labor Committee is expected to hold a hearing on the legislation the week of Nov. 16.

“To help control the spread of the H1N1 flu virus, workers who are sick should stay at home,” Woolsey said. “This bill will ensure that workers who are directed to stay home by their employers can do so without paying a financial penalty.”

The Centers for Disease Control estimates that a sick worker will infect one in 10 co-workers, according to Miller.

Debra L. Ness, president of the National Partnership for Women and Families, said her group wants the bill to allow workers to decide when to take the leave.

“The paid sick days law America needs will go further than this initial bill,” Ness said. “The Emergency Influenza Containment Act is a first step, and we look forward to working with Congressman George Miller to ensure that this legislation provides workers with the right to decide when to take a paid sick day, allows working parents to care for sick children, and protects workers’ jobs when they are sick.”

Ness’s group estimates that the economy loses $180 billion in productivity a year when sick employees show up to work.

The Pros and Cons of Recruiting Via Social Media – HR Wire 9-2-09

Federal Construction Contractors

In May, 2009, the Office of Federal Contract Compliance Programs (OFCCP) issued its Technical Assistance Guide for Federal Construction Contractors.  The OFCCP is responsible for ensuring that contractors doing business with the federal government do not discriminate and take affirmative action.
The OFCCP also recently announced that it will begin conducting compliance reviews of construction contractors who receive funding and grants from the American Recovery and Reinvestment Act of 2009 (ARRA). According to the OFCCP, the majority of ARRA funding and grants will provide direct funding or federal assistance to construction projects and therefore,  the OFCCP will place a special emphasis on the construction industry.  Beginning in July 2009, OFCCP will begin to review a minimum of 360 construction contractors and 90 supply and service contractors, including at least 10% of first-time federal contractors.  These reviews will be followed by quarterly compliance evaluations through September 30, 2010.
To help contractors achieve compliance, OFCCP plans to host a series of  compliance seminars and webinars specifically for federal construction contractors and new federal contractors.  The schedule of events can be found at www.dol.gov/dol/calendar/.

Politicians don’t typically broadcast their defeat, and when they do it pays to watch for the blindside hit. That’s surely the case with last week’s reports that six liberal Senators are abandoning part of labor’s top priority, “card check” legislation.

The legislation to eliminate secret ballots in union elections has in fact been comatose for weeks, since Pennsylvania’s Arlen Specter and Blanche Lincoln of Arkansas declared their opposition. So the real purpose of this “concession” is to shift to Plan B, which is to repackage most of what labor wants with new ribbons and wrapping. The bill that Senators Tom Harkin (Iowa), Mark Pryor (Arkansas), Mr. Specter and others are now considering would still give unions the whip hand in negotiations with management.

One proposal would slash the time for an organizing vote, requiring that it be held within five or 10 days after 30% of workers had signed cards asking for a union. The median time today is 38 days. Organizers want the rush because they know the more time workers have to learn about a union, the less they usually want one. Once employees hear the other side of the story, support dwindles.

This also explains a Big Labor demand to bar companies from requiring their workers to hear management’s side during a union campaign. Labor supporters say this creates a “captive audience,” but these meetings are one of management’s few opportunities to address workers, since companies are barred from the sort of outreach allowed to union organizers — such as visiting employees at home. At the same time, Senators want to give union organizers access to company property.

Democrats also aren’t giving up on binding arbitration, which would let a federal arbitrator impose a contract if management and a newly established union at a work site aren’t able to agree within 90 days. The provision would encourage unions to make maximum demands and play for time, knowing that an arbitrator could force management’s hand. Binding arbitration also denies employees a vote on a contract.

Labor is desperate to rig the bargaining rules because most workers show time and again that they don’t want a union. Americans know unions promise higher wages and benefits and more job security. But workers can also see what has happened to such highly unionized industries as steel, autos, airlines and many others. Unions couldn’t save those jobs, and in fact they contributed to their demise with contracts that made the industries uncompetitive. Most workers would also rather not hand over a chunk of their paycheck in mandatory dues to finance the political agenda of labor leaders.

Democrats and the AFL-CIO are hoping that if they dump the unpopular secret ballot ban from card check, they can get to their magic number of 60 Senators. The business community and Republicans shouldn’t be fooled and let Democrats from swing states off the hook. Card check under any cover is still a job killer.

On August 19, Arnstein & Lehr’s Labor & Employment Law Practice Group is hosting a full day seminar entitled Taming Technology: Risks and Rewards of Workplace Blogs, Twittering and Social Networking.

EFCA Could Be Law Within 5 Months: Union Leader

Law360, New York (March 03, 2009) — AFL-CIO Executive Council member and union leader James Williams said Tuesday that he expected the controversial Employee Free Choice Act to pass in the next four or five months.

Williams, general president of the International Union of Painters and Allied Trades, is one of more than 40 members who comprise the AFL-CIO’s Executive Council….To Read More about EFCA click here.

Congressional Republicans Feb. 25 announced introduction of legislation in the House and Senate, named the Secret Ballot Protection Act (bill numbers not available yet), that would ensure employees in union organizing campaigns the right to a secret ballot election conducted by the National Labor Relations Board.
The legislation is a preemptive strike against the Employee Free Choice Act that Democrats are expected to introduce soon, Sen. Jim DeMint (R-S.C.), and Reps. Howard P. “Buck” McKeon (R-Calif.), John Kline (R-Minn.), and Tom Price, (R-Ga.) said at a press conference announcing the bill. Declaring that a secret ballot is a fundamental employee right, they said EFCA would deny workers that right and create a climate of intimidation during union organizing campaigns.

“Secret ballots are a hallmark of American Democracy. They protect individuals-whether they are voters on election day or workers deciding whether to organize-from public pressure, intimidation, or post-vote retribution,” McKeon said.

The bill would amend the National Labor Relations Act to make it an unfair labor practice for an employer to recognize or bargain with a union that has not been selected by a majority of employees in a secret ballot election conducted by NLRB. The bill also would make it an unfair labor practice for a union to cause or attempt to cause an employer to recognize or bargain with a union that has not been selected by a majority of employees in a secret ballot NLRB election.

Kline and Price, the ranking Republicans on House Education and Labor Subcommittee on Health, Employment, Labor, and Pensions and the Subcommittee on Workforce Protections, respectively, and McKeon, ranking member on the House Education and Labor Committee, introduced the bill. DeMint, and Sen. Mike Enzi (R-Wyo.), ranking member of the Senate Health, Education, Labor and Pensions Committee, introduced the companion bill in the Senate.

The bill has 101 co-sponsors in the House and 16 co-sponsors in the Senate.

The USA Today reported:

WASHINGTON – The head of the country’s largest labor union says he expects victory by August on one of labor’s top priorities in Congress: legislation designed to make union organizing easier.
Andrew Stern, president of the 2 million-member Service Employees International Union, said Wednesday he thinks there are enough votes in the House and Senate to approve the bill known as “card check.” The measure would allow workers to form a union by gathering signed cards from a majority of employees, rather than the current method of winning a secret-ballot election overseen by the National Labor Relations Board.

Click here for a link to the full article.