Labor Bill Generates Talk on ‘Hot-Button Issues’

By Allen Smith, J.D. Sep 12, 2016
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Sometimes bills are introduced to start a conversation. At first, a bill might have little chance of passing but subsequently could gain momentum either in whole or in part.

This might prove to be the case with a bill Rep. Jared Polis, D-Colo., introduced on Sept. 6. The Giving Workers a Fair Shot Act (H.R. 5939) is "a conglomeration of provisions that touch on multiple hot-button issues," said Angela Cummings, an attorney with FordHarrison in Charlotte, N.C.

The bill would allow either a union or an employer to seek mediation under the Federal Mediation and Conciliation Service after 90 days if one of them feels the other is not being responsive enough. If the mediation is unsuccessful after 30 days, the service would refer the issue to binding arbitration.

The bill also would:

  • Make the willful violation of five laws—the Fair Labor Standards Act, the Occupational Safety and Health Act, the National Labor Relations Act, the Mine Safety and Health Administration Act, and the Migrant and Seasonal Agriculture Worker Protection Act—a felony, and it would increase criminal and civil penalties for violations of these laws.
  • Make the provision of pay stubs mandatory under federal law.
  • Codify President Barack Obama's 2009 Economy in Government Contracting Executive Order, which prevents federal contractors from seeking reimbursement of expenditures associated with union avoidance.

"If the Senate or House flips, then legislation like this will be considered seriously," said Michael Lotito, an attorney with Littler and co-chair of the Workplace Policy Institute, the firm's government affairs branch. "Or the advocates will be satisfied with only parts of it, like the arbitration provision. Not possible? That's what was said about [a minimum wage of] $15 an hour. The conversation has to begin somewhere." (California and New York as well as several localities have raised the minimum wage to $15 an hour, with gradual effective dates.)

Mediation and Arbitration

Lotito said the bill's mediation and arbitration provisions are from the proposed Employee Free Choice Act, which also would have amended the National Labor Relations Act's organizing rules to allow unions to bypass private ballot elections in favor of the card check process. The provisions are the "most impactful" of the bill as they provide "for the imposition of an agreement on the parties," he said.

Taking economic control out of the hands of the employer, which pays the bills, invites disaster, he stated.

"Rep. Polis accuses employers of dragging their collective feet on reaching an initial contract with unions," Cummings said. "That is a very one-sided view, however. I have witnessed many occasions where it is the union who is refusing to bend at all and causing delays, not the employer. I am unsure that mandating a third party to come into such negotiations early on will benefit either party."

Felonies

Attorneys disagree about whether making willful violations of certain laws felonies will have a significant impact.

"The idea behind ensuring that very stiff penalties are available to punish the worst of the worst offenders is not necessarily a bad one," said Paul DeCamp, an attorney with Jackson Lewis and a former administrator of the U.S. Department of Labor's Wage and Hour Division. "The concern, however, is that enforcement philosophies can vary widely based on partisan ideology. When it comes to labor matters, one person's innocent mistake or error in judgment is often another person's hanging offense."

Cummings, however, noted that "There have been misdemeanor criminal penalties associated with such laws for a long time. That said, who do you know who has actually been convicted of such crimes? It is certainly a scary thought for higher-level executives and HR professionals, but, again, it does not come to fruition often. Therefore, increasing the penalties from a misdemeanor to a felony may not have any major impact."

Lotito disagreed, saying the change would have a "profound" impact. If this portion of the bill is enacted, he said, "one consequence would be HR having to play even more of a compliance role." And he expressed concern that it would become more difficult to recruit and retain managers and HR professionals.

Pay Stubs

Most states already require employers to provide pay stubs to employees at regular intervals, Cummings noted.

"Certainly, there are advantages to both the employer and the employee in having access to the pay stub information," she said. For example, if an employee notices a mistake in wages, the employee can inform the employer so a correction can be made.

Or if the employee has a question about overtime pay, the employee can ask the company about that, potentially avoiding a costly wage and hour lawsuit down the road, Cummings noted.

Lotito believes that the pay stub provision of the bill is based on California legislation that, unlike the bill's summary, clearly permits electronic stubs.

"Of course, this provision of the law would be a gift to trial lawyers and become, as it has in California, a virtual automatic claim in any employment dispute," he said.

Economy in Government Contracting Executive Order

"The Society for Human Resource Management (SHRM) is still reviewing the legislation and has not taken a position on the bill," said Kelly Hastings, SHRM senior advisor, government relations. "The legislation would codify a 2009 Economy in Government Contracting Executive Order, which is one of numerous executive orders impacting federal contractors who diligently work to comply with the myriad federal and state labor laws."

She added, "SHRM has concerns about policy proposals—whether accomplished through executive order or legislation—that would have a negative impact on an employer's ability to communicate with employees about important workplace matters such as whether or not to organize a union or collectively bargain."

Polis' press secretary declined to respond to a request for comment.

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