Congress Renews Its Battles Over Workplace Rights and Obligations

by 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!

View This Blog

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.

© Foley & Lardner LLP | Attorney Advertising

Written by:

Foley & Lardner LLP

Foley & Lardner LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.