Congress Renews Its Battles Over Workplace Rights and Obligations

Foley & Lardner LLP

With Republicans now controlling both houses of Congress, we can expect to see the introduction — or reintroduction — of various pieces of legislation largely designed to advance the agenda of the majority party on issues affecting the American workplace, as well as blunt the ambitions of President Obama and the Democrats in that same arena. With the new Congress in session for less than two months, we have already seen proposed workplace legislation that gives a clear indication of where future battles will be fought.

1) Save American Workers Act — This Republican-sponsored legislation would change the definition of “full time employees” as used in the Affordable Care Act (ACA) from those employees working an average of at least 30 hours per week to those working an average of at least 40 hours per week. We can certainly expect that this will not be the last bill designed to minimize the impact of the ACA on employers, almost as much as we can expect presidential vetoes of any bills attempting to dial back the ACA. This will undoubtedly be a major area of legislative battles over the upcoming months and years.

2) Working Families Flexibility Act — This bill was proposed in January of 2015 by Republicans in both the U.S. Senate and House of Representatives. It would amend the Fair Labor Standards Act (FLSA) to allow employers to offer compensatory time off, in lieu of overtime, for all hours worked over 40 in a workweek. The bill would provide employers and employees with additional flexibility in how employees can be compensated for overtime hours worked. Other bills will no doubt follow, which will offer increased flexibility and relief from what some view as regulatory and statutory overkill with regard to the rights of American employees and employers alike.

3) National Labor Relations Board Reform Act — It is no secret that Republicans are very unhappy with the positions taken by the National Labor Relations Board (NLRB) on a wide variety of issues during the Obama administration. It is also clear that Republicans are frustrated with their lack of success in controlling what many view as an administrative agency bent on expanding employee rights at every opportunity. Seen in that light, this proposed legislation, introduced by Republican Senator Lamar Alexander in late January of this year, was somewhat of an inevitability. The bill states that the number of NLRB members will be increased to six, with an equal number of Democratic and Republican members. At least four of the six NLRB members would have to agree before a decision could be issued on any representation or unfair labor practice case. This is obviously designed to avoid the three-to-two votes along party lines, which have become commonplace for the NLRB in recent years. The proposed statute would also allow parties to take action in federal court to seek review of a complaint issued by the NLRB General Counsel, as well as move their disputes into the federal courts if the NLRB does not act within specified time frames on matters pending before it. This measure — obviously designed to place significant limitations on the ability of the NLRB to expand its reach, as it has done in the recent past —is a foreshadowing of what will undoubtedly be other efforts by Republicans to limit the powers of the Board.

4) National Right to Work Act — This bill was offered in the House of Representatives in late January by Republican Steve King of Iowa. The bill would install a federal ban on “union security” provisions in collective bargaining agreements — provisions that require employees to join a union and pay dues and fees required to maintain that membership. This bill reflects an ongoing and spreading debate over the issue of union security provisions, with various states considering legislation similar to this federal bill. This issue is likely to remain at the forefront of many legislative agendas on both a national and local level for the foreseeable future, as at least some legislators continue to try to find ways to limit, or eliminate, the influence of labor organizations.

5) Healthy Families Act — This bill, which failed to pass Congress when introduced in the past, was re-introduced earlier this month by Democrats in both the Senate and the House. The bill would require employers with 15 or more employees to give those employees the ability to earn a minimum of seven days of sick leave per year. Employers with fewer than 15 employees would be required to give their employees at least seven unpaid sick leave days per year. This bill is similar to a growing number of local and state statutes, which have established minimum requirements for employee accrual and use of sick leave. The bill — which would significantly expand the reach of federal law into employer personnel policy decisions — reflects the all-too-clear differences between Democrats and Republicans when it comes to the desirability of the federal government dictating the rights of employees and the obligations of their employers. With President Obama having already stated his strong preference for this bill, this can be expected to be a lightning rod for both parties in the days ahead.

Whether any or all of these bills will pass Congress, and what they would look like in final form if they did, is, of course, a matter of pure conjecture and speculation. Regardless, these bills and the parties that proposed them illustrate in no uncertain terms the significant Congressional divide on these and many other issues that fundamentally impact the American workplace. Given a Republican-controlled Congress and a Democratic President, we are in for a very interesting next few years, as leaders of both parties try to exert maximum influence over core issues affecting millions of American workers. Buckle your seat belts!

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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