It's Not EFCA, But for Some Cities It Might Be Worse
Posted
5:55 PM
by Michael Fox
Because today, Senate Majority Leader offered the Public Safety Employer-Employee Cooperation Act as an amendment to the Supplemental Appropriations Act that is being considered by the Senate. The amendment (number 4147) could be voted on as early as tomorrow.
Here is the Heritage Foundation' summary of the bill:
The Public Safety Employer-Employee Cooperation Act (PSEEC) would require all state and local governments to collectively bargain with public safety employees'--police officers, firefighters, and emergency medical personnel--by creating a federalized collective bargaining system for public safety officers.
PSEEC allows the Federal Labor Relations Authority (FLRA) to determine whether a state's collective bargaining arrangements meet the standards as defined by the act.
- States and localities must collectively bargain with public safety employees.
- They must permit bargaining over wages, hours, and all terms and conditions of employment.
- They must provide a dispute resolution mechanism, such as binding arbitration.
- The FLRA will have considerable authority to enforce the act, including:
- Determining the appropriateness of units for labor organization representation;
- Conducting hearings and resolving complaints of unfair labor practices; and
- Supervising or conducting elections to determine whether a labor organization has been selected as an exclusive representative by a voting majority of the employees.
- States would be granted the authority to pass laws more expansive than those the federal government imposed.
- States would not, however, be allowed to pass narrower laws than those contained in the act.
For more on the reasons why the Heritage Foundation thinks this is a bad idea, go here.
A more supportive view, not surprisingly, comes from the International Association of Fire Fighters, an AFL-CIO affiliate.
My quick review of the bill did not indicate that size of the governmental entity makes any difference. Here is the key definition for coverage:
"The terms `employer' and `public safety agency' mean any State, or political subdivision of a State, that employs public safety officers."In Texas, many of the major cities already have the obligation to bargain (often not very successfully) with their police, fire and emergency medical personnel, although they will still have to be certified as meeting the national standards.
Many other Texas cities do not. But if this passes the current Texas procedure (which is in itself several complicated pieces of legislation) will be set aside if the Federal Labor Relations Authority does not deem them equal to the new federal standard. In tough economic times, not a financial burden that many governments are going to be excited about taking on.
For those not too concerned about Public Sector labor relations, the legislative tactic might be a precursor to see how other labor and employment legislation may be moved through this Congress. By attaching the bills to "must pass" legislation, such as an appropriations bill, we may soon see just how filibuster proof this Congress is when it comes to employment and labor matters.
Update May 25, 2010: Labor Relations Today covers the same topic and closes with the following:
Ouch.On March 10, 2010, the House Education and Labor Committee held hearings on the bill, transcripts of which are available here. Seeing as there were at least five GOP co-sponsors to Sen. Gregg’s similar bill, it is highly likely that this amendment will pass and become part of the Supplemental.
Update May 29, 2010: Senator Reid pulled the PSEEC from the Supplemental Appropriations bill in light of a parliamentary challenge that it was non-germane. The Supplemental passed without it, although the bill itself remains pending in both houses. Thanks for Labor Relations Today for the update.
Labels: political, public sector
463 to 1 Vote in House on Mine Safety Investigation
Posted
2:41 PM
by Michael Fox
A story in the Daily Labor Report that the House of Representatives voted 463-1 to give authority to House Education and Labor Committee staff members to take depositions as part of the investigation into the Massey Energy Company mine accident of April 5th raised my curiosity about the one no vote.
I must admit that I was not surprised when I double checked the Roll Call 289 on H RES 1363 and found that the lone dissent was Congressman Ron Paul of Texas.
No matter what you think of him, there clearly is no doubt that he does not feel obligated to go his own way, regardless of popular sentiment.
Labels: political
Hidden Healthcare Gems
Labels: political
It's Here: The Obama Board
Labels: political, traditional
Four Pillars for Immigration Reform
Labels: immigration, political
Changing the Statutory Employment Law in Missouri - Will it Happen?
Labels: political
The Administrative Option - Deja Vu All Over Again and The MSM Catches Up
Labels: political
No Becker Recess Appointment, At Least Not This Recess
Labels: political, safety, traditional
A New Term for Concern: The High Road Contracting Policy
Labels: political
Becker Cloture Vote on Monday, Recess Appointment in the Wings?
Labels: political
Patricia Smith One Step Closer to Confirmation as Solicitor of Labor
Labels: political
Becker Nomination Back in Senate's Hands
Labels: political, traditional
Board Member Becker? 2nd Time Around
Labels: political, traditional
Weighing In On Religion in the Workplace
Did Kennedy's Illness Prevent EFCA Passage?
Labels: political, traditional
The Latest On EFCA
Labels: political
All Politics is Local - the EFCA Ramifications
"You want our vote? We want yours," shouted retired iron worker John Heinlein. That started a bit of give-and-take with the senator. "I understand your job is on the line and I understand my job is on the line...I think you will be satisfied with my vote on this issue," Mr. Specter responded." Labels: political
EFCA - The Dangers of Reporting
Labels: political
Driving and Talking - Not in Texas School Zones
Labels: political
ENDA Back Into the Congressional Mix Soon
Labels: discrimination, political
Posted
11:33 AM
by Michael Fox
I have not (and probably will not) taken the time to read the two pieces of legislation that passed Congress last week and which are generically being called Healthcare Reform, but fortunately others who have an interest in employment law are doing so. Although in many ways the whole bill is very much an employment law bill because of the impact on employee benefits, some portions of it are more employment law related.
The top two that have been found so far:
Since it appears that the Fair Labor Standards Act was the vehicle of choice for many employment law related aspectes, a quick scan of the texts for that statute found the following:
In H.R. 3590 [pdf] (the Senate Bill that was passed by the House without change):
The "fix-it" bill, H.R. 4872 [pdf] which may be signed into law today, has no references to the FLSA.
Posted
11:57 AM
by Michael Fox
Although it took longer than expected, and required using the recess appointment mechanism, Saturday's expected announcement that Craig Becker and Mark Pearce would be appointed to the Board marks the transition to an Obama majority on the NLRB. President Obama Announces Recess Appointments to Key Administration Positions. The fifth potential member, Republican Bryan Hayes'nomination is still pending in the Senate (the Becker and Pearce nominations remain as well.)
Also on the list of the 15 recess appointments are three members of the EEOC, Jaqueline A. Berrien as Chair, Chai R. Feldblum and Victoria A. Lipnic as members. P. David Lopez receives a recess appointment as General Counsel. Of those, Feldblum was the one who had drawn the most attention.
Because these recess appointments will expire when the Senate adjourns in December, 2011, it will be interesting to see how quickly they begin acting. Given the length of time the Board has been operating with only two members, and thus deciding only those cases where Democratic and Republican members could agree, there is a substantial backlog of cases to be decided. Additionally, there has been much talk about the possibility of rule making to accomplish at least some of the objectives of the legislatively stalled Employee Free Choice Act.
As a reminder of some of the changes that could be coming check out the monograph prepared by two of my colleagues, Hal and Chris Coxson, The National Labor Relations Board in the Obama Administration: What Changes to Expect.
If you had put off getting up to speed about what would happen with an Obama Board, time is up. For better or worse, it is here.
Posted
12:01 PM
by Michael Fox
Having just finished with one hot potato, at least two Senators are ready to tackle yet another. And surprisingly enough, it is a bi-partisan effort. In a Washington Post opinion piece, Charles E. Schumer and Lindsey O. Graham - The right way to mend immigration offer four premises on which any new legislation should be based:
Our plan has four pillars:
Obviously, the biometric card will set off concerns in some circles. Trying to get ahead of the curve on that one, the Senators were quick to point out:
Given how stormy the last time immigration reform was raised and given the hard feelings generated by the healthcare battle, it would not seem like an auspicious time.
Still stranger things have happened and if the bipartisan spirit continues, with even a low level of Republican support in the Senate, there should have a fighting chance for reform.
However, it should be remembered that this is an issue which does not necessarily divide only along partisan lines, but also has a geographic element. Even more importantly, there is a long way between agreement on concepts and agreement on final language of a bill. And just like biometric cards, the pathway to citizenship is a concept that will be a non-starter for many.
I don't think President Obama needs to set aside any days in the near future for a signing ceremony, but it certainly is an interesting start.
Posted
5:01 PM
by Michael Fox
An article in the St. Louis Business Journal reports on an effort by the Missouri business community to roll back recent state Supreme Court decisions which have caused a split between how state and federal discrimination laws are interpreted.
A Missouri management side lawyer, Bob Stewart, has one of the better quotes I have seen recently, noting that the "problem is that Missouri employment law has become out of whack with federal law." Having been almost whacked a few times in Missouri state court myself, I can identify.
I know almost nothing about Missouri politics, except that in national elections they tend to be a swing state with close elections that often seem to have a different result when I wake up in the morning than when I went to bed on election night. If the legislative process is as close, then this could be a very interesting battle because there are clearly political heavyweights on both sides.
Among the companies which are supporting the bill are Boeing, Brown Shoe, Bunge North America, Charter Communications, Emerson, Enterprise-Rent-A-Car, Express Scripts, Graybar Electric, Peabody Energy, Schnuck Markets, Smurfit-Stone Container Corp., Solae and Solutia. They are backed by the National Federation of Independent Businesses in Missouri, the St. Louis Regional Chamber and Growth Association, the Missouri Retailers and Grocers' Association, the Missouri School Administrators' Coalition, the Cooperating School Districts of Greater St. Louis, the Missouri Associated Builders and Contractors, the Missouri Restaurant Association and the Missouri Municipal League.
Opposing the legislation are trial lawyers, the Metropolitan St. Louis Equal Employment Opportunity Commission, the Missouri Commission on Human Rights, and the Missouri National Education Association.
Although the article does not refer to the bill number, it appears to be SB 852 [pdf]. That bill was passed out of committee and is pending action by the full Senate.
According to the Current Bill Summary, the legislation as introduced would bring state discrimination law into parity with federal discrimination law by excluding individual supervisors and managers from liability, adopting the same damage caps as are contained in Title VII, and revising the burdens of proof. It would also undo several state Supreme Court decisions, including one which ruled out a business judgment instruction.
Discrimination law developed in Missouri mostly in federal court until the state Supreme Court held there was a constitutional right to a jury trial in Diehl v. Malley (Mo. 2003). Since then, at least according to the proponents of the legislation, there has been a growing difference between federal and state law. Actually, while people have different views about the merits of whether the federal and state law should be interpreted similarly, I doubt there are many that would seriously argue that the two have not diverged in the period since Diehl.
Since I have handled some cases in Missouri I have some interest in the law, but I am more fascinated by whether or not it is possible to actually roll back what is now considered pro-employee legislation. It is my view, that at least on the federal level it won't happen, at least not in my lifetime. As far as I know, the last time there were amendments to federal labor laws that could be said to reverse any pro-employee legislation would be 1947, with the passage of the Portal to Portal Act amendments to the Fair Labor Standards Act.
I think I posed this question to some of the academic bloggers on employment law issues before, because this is certainly not based on any extensive research. However, I am fairly certain that since I started practicing in 1975 it has not happened. Hopefully, if I am wrong, it will soon be pointed out. That's one of the beauties of the internet.
While waiting, I will also be keeping a watchful eye on the Missouri legislature. I must admit, that I am skeptical that it will happen. Probably not an atypical view for the "Show Me" state. But one can always hope.
Posted
10:44 AM
by Michael Fox
Steve Greenhouse, who has the labor beat (assuming that is still a proper term) for the NYT has an article today about the Obama's administration plans to utilize government contracting to increase wages and benefits for employees, Obama Aims to Use Federal Contracts as a Way to Lift Wages. The article focuses on the potential economic benefit to workers, but notes the concerns of the business and employer community.
If this seems like deja vu, it is. See Clinton to modify contractor 'blacklisting' rule, from the March 13, 2000 Buffalo Business First newspaper. By December 20, 2000, that story had evolved into a final rule that was published in the federal register. The regulations were suspended by the Bush Administration.
According to Greenhouse's article, the Obama administration proposal, still in the writing phase, would go further.
Much of the concern in the Clinton regulations by the business and employer community focused on this aspect. Each potential government contractor would have to provide the following information which would be taken into account in determining the acceptable bidder:
within the past three years, been convicted of any felonies (or has any felony indictment currently pending against them) arising from any Federal tax, labor and employment, environmental, antitrust, or consumer protection laws, had any adverse court judgments in civil cases against them arising from any Federal tax, labor and employment, environmental, antitrust, or consumer protection laws in which the United States brought the action, or been found by a Federal Administrative Law Judge, agency, board or commission to have violated any Federal tax, labor and employment, environmental, antitrust, or consumer protection law. If the respondent has answered ``has'' to the above question, please explain the nature of the violation and whether any fines, penalties, or damages were assessed.
No doubt that battle is about to resume in the very near future.
The "MSM Catches Up" in the title is just a little brag (as recognized by Greenhouse in his article) that an online publication, Tucker Carlson's Daily Caller was first out with the story on February 4th, White House considers pro-labor policy for government contractors, which I picked up in my post on February 9th. Gautham Nagesh, who used to cover government contracting at the Government Executive magazine, has followed up with additional stories:
Backdoor card check: GOP slams pro-union contracting policy, February 11; and
Documents confirm White House pushing pro-union contracting policies, February 23
and of course, because it's the way the blogosphere works, hat tip to my friends at Workplace Prof blog, Federal Contractors and Wages and Benefits, which alerted me to Steve Greenhouse's article.
All snarkiness aside, this is is going to be a major story and there will be plenty to cover for both the MSM and those of us in whatever we are.
Last time around, the story didn't play out because of the election of 2000. This time, it's a long time until 2012.
Posted
2:55 PM
by Michael Fox
Or at least that would seem to be the most likely course of action based on a statement released by President Obama after the Senate confirmed 27 appointments by voice vote before leaving for the week long's President's Day Holiday. Senate Confirms 27 Obama Nominees . From the White House:
While this is a good first step, there are still dozens of nominees on hold who deserve a similar vote, and I will be looking for action from the Senate when it returns from recess. If they do not act, I reserve the right to use my recess appointment authority in the future.
Posted
6:24 PM
by Michael Fox
Before taking too much joy in the initial defeat of Craig Becker's nomination to the NLRB, the business community, particularly government contractors, should be aware of a different approach that is beginning to be considered. That approach would use the power of the purse, government contracting, to achieve labor friendly policies. The story in the Daily Caller,White House considers pro-labor policy for government contractors points out that some Senators are already raising questions about the possible policy action.
For a more in depth look at the ideas behind the policy, check out The Road to Responsible Contracting a report prepared by the National Employment Law Project. The basic argument is that government should focus not just on lowest dollar, but on other requirements as well. Requirements like compliance with labor and employment laws, employers that pay health benefits etc.
Think Davis-Bacon on steroids.
The old saying that there is more than one way to skin a cat comes to mind. The concern of course is who ends up getting skinned.
Posted
4:31 PM
by Michael Fox
It's not quite the Super Bowl of labor relations policy, but it is a surprising that Majority Leader Harry Reid has called for a cloture vote on Craig Becker's nomination to the NLRB on Monday. If the Republicans hold rank, and there has not been any indication that any Republican Senator is not inclined to do so, cloture will not be invoked. See Congressional Quarterly's story, Feb. 8 Vote Will Be First Test of Senate GOP’s New Number.
Being (thankfully)more than 1,500 miles from the Beltway, I have no clue as to the reason for the quick scheduling. There are some interesting things in play though. One is that the fate of another nomineee, Republican Bryan Hayes is probably tied to Becker's. And Hayes just happens to be the former aide to Republican Senator Mike Enzi. That was not enough to get Enzi's vote this time in Committee. (Enzi and fellow Republican Senator, Lisa Murkowski had both supported Becker in Committee the first time he was considered. The second time was a straight party line vote.)
As for as speculation goes, unless Majority Leader has a trump card somewhere up his sleeve, which seems doubtful, you have to assume that cloture will not be invoked. Failure to invoke cloture does not mean that the nomination is dead so that is not necessarily the end of the story.
One possibility is that the Democrats want to get a vote on record where they can argue that the Republicans are thwarting the ability to govern over a position that not a lot of the public knows very much about and will probably not think should be a very big deal, and then move on to other matters with that piece of political ammunition in their pocket. Or Becker may be tired of being skewered and just want to get it over with and go back to his life as counsel for SEIU.
But the most likely is the one that Senator Reid mentioned, a recess appointment. See Reid Threatens to Bypass Senate With Recess Appointments, from The Huffington Post. The Senate is scheduled to go into recess for President's Day later this month and an appointment made at that time would serve until late 2011.
With the cloture vote sandwiched in between the Superbowl and UT's home basketball game with number 1 ranked Kansas Monday nite, there should be no shortfall of excitement for the 36 hours starting with the kick-off on Sunday. And it probably won't be over then.
Posted
2:47 PM
by Michael Fox
Actually given the coming changing of the guard when Scott Brown is sworn in as the newest senator and the Republicans gain 41 votes in the Senate, yesterday's cloture vote on Smith was actually more like "a giant leap" as the votes for her confirmation later this week are assured. Dems Break GOP Filibuster Of Routine Nomination
It now seems that it will be Senator Brown before the cloture vote on NLRB nominee Craig Becker. Latest reports are that Brown will be sworn in tomorrow, the same day the Becker nomination is scheduled to go before the HELP Committee, where a Democratic majority should ensure a favorable vote. However, that just sets up a cloture vote. It will be interesting to see if the Democrats make Becker the first key cloture vote after the Republicans have 41 votes. Although Becker had two Republican votes in the Committee last session, it is unclear that they will be there this time around.
Obviously, action or inaction in the Senate (depending on your point of view) is going to be a key partisan theme in this year's Congressional election. Hard to imagine that a nominee to the NLRB would turn out to be Exhibit A in that debate, but that could very well be the case.
Update 2.4.10: The Washington Post is reporting, that as expected, Patricia Smith was confirmed as the Solicitor of Labor today by a vote of 60-37. Although it came before Scott Brown was sworn in, his vote would not have been sufficient to defeat her confirmation. She is the third highest official in the DOL and the top lawyer.
Posted
10:07 AM
by Michael Fox
As had been widely reported would happen, the President has re-nominated Craig Becker to be a member of the National Labor Relations Board. Presidential Nominations Sent to the Senate | The White House In light of Tuesday's election results it will be interesting to see what happens.
Although getting a controversial nominee through Congress is not easy, and Becker is clearly controversial, it still remains easier than passing legislation such as EFCA or health care. I would not be surprised to see the White House looking harder at ways to accomplish their goals that do not require Congressional action, such as regulations and executive orders. Although they have to get their nominees confirmed for regulations to occur, it may well be they begin using some of their political capital on the confirmation process rather than new legislation.
Hat tip to Jeff Hirsch at Workplace Prof Blog who somehow managed to take time away from the other UT's athletic turmoil to keep us informed of this development, Becker Renominated. (and he hat tipped Justin Keith).
As Professor Hirsch correctly points out: "Let the fun begin ... again.
Posted
12:49 PM
by Michael Fox
According to the New York Times, President Obama is going to renominate a number of individuals that the Senate returned to the White House at the end of the first session of this Congress. Included in that group is Craig Becker to the NLRB. President Is Said to Decide to Renominate Six Choices.
Hat tip to a tweet from Ross Runkel, who nailed it, when he said at a minimum this means a delay in getting a full Board.
One the "can 2 members act" question, the Court has set that case for oral argument on March 23rd. Supreme Court to Hear Oral Arguments in New Process Steel on March 23.
Even if the Board gets the go ahead from the Supreme Court, that does not mean that the Board will really be able to function in any but a very limited way. Although for employers who are not looking forward to some of the rulings likely to come from an Obama Board it may be a good thing in the short term, in the long run, it seems to me that the way the Board has become just another vehicle for partisan fighting (and this goes back long enough to catch administrations and Congresses of all political persuasions) is not a good thing. There should be a better way.
Posted
4:49 PM
by Michael Fox
Although Iowa's turn in the political sun won't roll around for at least another 18 months or so, there's an interesting post from Patrick Smith at the Iowa Employment Law Blog, Are Employee Religious Freedoms in Jeopardy?
The jumping off point for his comment was a guest column in the Des Moines Register by Lake Lambert III, Professor of Religion at Wartburg College, in Waverly, Iowa. Dr. Lambert is advocating for the Workplace Religious Freedom Act. As the article notes, the Act has been kicking around for quite awhile, notwithstanding support on both sides of the aisle. Although it occasionally gets a push, the fact that it has not made much progress I think speaks volumes to the potential problems. Smith thinks the bill cuts too broadly and points out some of the issues:
In a country with so many different religious practices, however, an expanded duty to accommodate them all could create more problems than it solves. What happens when the practices of different religions conflict? What about situations where an employer's legitimate interest in safety or uniformity impacts an employee's desire to wear religious clothing or articles? Under existing law, employers have more flexibility to address these situations in the context of legitimate business needs. The proposed RWFA tips the balance too far the other way.
I couldn't agree more.
Still it has been a few years since I have written about it. My first post was in 2003 and things had not changed much when I wrote in 2005, Workplace Religious Freedom Act - Consensus On Neither the Right Nor Left. It is not unheard of for legislation to languish year after year, only to make it to the forefront. The ADA and FMLA are two examples of statutes that were introduced in a number of Congresses before becoming law, ENDA (protection for sexual preference and more) may be the next.
And who knows, even though it doesn't seem to be making much progress, the Workplace Religious Freedom Act doesn't show any signs of going away either.
Posted
11:02 AM
by Michael Fox
That seems to be what Senator Harkin was saying in yesterday's report in The Hill,Harkin: Kennedy’s illness stopped card-check vote back in July. According to the story, Harkin had an agreement supported by organized labor and with Kennedy would have had the 60 votes, but Kennedy was too ill to come to capital hill to vote.
The details of that agreement according to Harkin: "I will not say because it was closely held, it never leaked out and it still hasn’t." No kidding.
That EFCA was ever that close to actual passage would be a shocker. While I obviously don't know, something about it just does not ring true. And I am not the only one who wonders, Card Check: Harkin Then, Harkin Now.
Posted
1:17 PM
by Michael Fox
The folks at EFCA Report who have been chronicling developments on this proposed legislation have their latest update, with some fairly definitive words from Senate Majority Leader Reid (D-NV) on EFCA: "Too Many Other Things on Our Plate". Of course, since the statement was made to the Las Vegas Chamber of Commerce, not a place where a pro-EFCA comment would likely be well received, it might be one of those statements that is subject to change.
Still, the other developments mentioned in their post, including the death of Senator Kennedy and the current state of Massachusetts law which, unless changed, means the earliest his replacement could be seated is the end of January, 2010, seems to me to make it more and more unlikely that EFCA will happen this year.
That of course does not mean that the battle for EFCA is over. One interesting question is whether other employment related legislation, ENDA or the Arbitration Fairness Act just to pick a couple, which most have felt were bottled up till EFCA was resolved stay there, or perhaps move closer to the front burner.
The big question of course is what happens in the longer term, the 2nd session of this Congress, or after the 2010 elections. I think more in organized labor may be resigning themselves that given how things have developed, they may need to keep their powder dry and see what the 2010 Senate looks like.
Depending on how that turns out, it is not impossible that EFCA proponents may someday count their blessings that this year's more effective than they had anticipated political opposition, the pitched battle over health care, the lack of a hard push by the Obama administration for their cherished goal and even the death of one of the bills' true champions, Senator Kennedy, might result in ultimately obtaining a bill that is closer to their desires than anything they could have obtained now.
Certainly not impossible, but likely?
Posted
9:38 AM
by Michael Fox
Speaking to a labor rally before an important speech to the Pennsylvania State Democratic Committee, Senator Specter said he knew that if you want to be elected in Pennsylvania, you have to come to labor.
And then there was this exchange on EFCA:
Specter "proud to be a Democrat," he tells party conclave here .
Following Specter's conversion there has been little doubt where he would end up on any EFCA compromise, but the Post-Gazette article makes clear why.
Still Pennsylvania is not Arkansas, Nebraska, Colorado, Louisiana or Maine. And it might well be those states 'local politics' that ultimately determine the fate of some form of EFCA.
Posted
9:15 AM
by Michael Fox
I, like many noticed a story that was circulating yesterday from a California radio station that Senator Feinstein D-CA had made major news in a meeting with Santa Clarita Chamber of Commerce members by announcing that she would not support EFCA in any form. For anyone following the story, that sounded suspect and it didn't take long for the "breaking news" to be squelched.
Fairly effectively in this report from Firedoglake, “Feinstein Bailing on EFCA” or “Reporter Punk’d By Chamber of Commerce”?, which includes an update with the following: Speaking on background, a confidant of the senator went a bit further. "This must be [Shaffery's] first rodeo because the story hasn't changed much. It has been the same: She is looking for a compromise. And anyone who says otherwise is engaging in some wishful thinking."
Clearly efforts to compromise are being made. That they continue to be talked about makes me believe that organized labor is at least still debating whether to accept a compromised version of EFCA or take an all or nothing approach for the current bill. Doing the latter would delay any bill until 2011 and be dependent on not only gains in the Senate in 2010 elections, but also a change of heart on the part of a number of current Democrats who are not too keen on certain provisions.
Just to reiterate there are three key components to the bill. Here's my current view on where things stand:
If organized labor is willing to take less than the original bill, and it seems to me that is the case, then this summer is, or at least should be, going to be a period of heightened vigilance for the employer community, regardless of what you may read about the various 'opponents' of the bill.
Posted
6:00 PM
by Michael Fox
For some reason I have been struck recently by just how many people have cell phones attached to their ears. Unfortunately, too many of them are behind the wheel of a moving vehicle.
The good folks at Workers Comp Insider have an excellent post, Cell Phones: Unsafe at Any Speed?, although it would have been nice to get it to the Texas legislature a little sooner.
Although there were several cell phone bills introduced in this year's session, the only one that seems it will make it through the laborious process is HB 55. It has passed both houses and if signed by the Governor, will prohibit speaking on a cell phone in a school zone (assuming that the city places an appropriate sign to let you know it is against the law). It also prohibits school bus drivers from using a phone at any time. (I think that was hopefully a no brainer.)
It's at least a start ....
Update (6/22/09): The bill was signed by Governor Perry last Friday and becomes effective September 1, 2009. The text of the bill is here [pdf] .
Posted
10:59 AM
by Michael Fox
Jillian Weiss' post at Trangender Workplace Diversity, Federal Bill on Employment Non-Discrimination Moving Forward has a link to the Washington Blade's interview with Congressman Barney Frank, the sponsor of ENDA who indicates he will be introducing it into this Congress soon.
According to the article, he intends on going with the full version of the Act which would extend Title VII protection not only for sexual orientation but for gender identity. It was the latter provision which caused a breakdown in negotiations between its proponents and the business community in the last Congress, and perhaps more importantly, set off a divide int the LGBT community itself.
Although it seems the general feeling is that most workplace legislation will await a resolution EFCA, given that a compromise was almost reached on this legislation in the last Congress, it could be one that moves on a slightly different and faster track.
Some reasons:
Gender identity is still much less understood, a point that Representative Frank seems to understand, as he is looking to Congressional hearings for purposes of education on that part of the legislation. Dr. Weiss will be doing her part at her blog as she intends a series of educational postings on the issue.
Ironically, although it is much less understood, it is individuals who can make a claim of gender identity discrimination who have fared much better under at least some circuit's view of Title VII than those with a sexual orientation claim. See 9th Circuit Joins 6th on Transgender Cases and Transgendered Workers in the Mainstream Press.
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