Responding to membership concerns that an effective tool is needed for communicating the facts about the Employee Free Choice Act in a way that simply informs, HR Policy is today launching a new website – www.EFCA-INFO.org – together with the Independent Women’s Forum, National Black Chamber of Commerce, and U.S. Hispanic Chamber of Commerce.  The site recognizes that provisions of the legislation may change frequently in the weeks ahead, and the employer community needs a way of communicating to small business owners, employees, and even arbitrators the facts and information about the specifics of the legislation.  This effort comes at a critical time.  Senator Arlen Specter has changed his political affiliation from Republican to Democrat, and he is now working with his new party colleagues in Congress to draft changes in EFCA that would seek to enable Senate Majority Leader Harry Reid (D-NV) to break a threatened filibuster against the legislation.  The information contained on the website is the product of intensive work by the Association and the country’s leading scholars and experts in the field of labor law after listening to the views of everyday Americans on the issues involved.  We encourage you to check out the site and forward it to others.

EFCA Information Website

With the Employee Free Choice Act (EFCA) at impasse in the Senate, Senator Dianne Feinstein (D-CA) has offered an alternative substituting the card check provision with a mandatory mail-in election.  While details of the proposal have yet to be revealed, it would likely involve employees mailing to the National Labor Relations Board (NLRB) a written indication of their support for the union, either with a union authorization card or an election ballot.  Feinstein's proposal also reportedly includes an alternative to EFCA's mandatory first contract arbitration, but the details have not been released.  Under current law, the NLRB may use mail-in ballots in place of secret ballot elections in rare instances where long distances are involved or where eligible voters are scattered because of their duties.  This is not the first time, however, that switching to mail-in elections has been proposed.  In 1994, William Gould, then the Chairman of the NLRB, pushed the agency to use it.  NLRB regional officials, however, filed written comments highlighting the "potential for interference by any party" and the fact that far fewer employees vote in mail-in elections compared to traditional secret ballot elections.  Indeed, in Shepard Convention Services, the NLRB ordered a mail-in election and out of 438 eligible voters, only 77 cast ballots and with 40 cast for the union, it was elected by 9 percent of the eligible voters.  The election results were rejected by the federal court of appeals.  Like card-check, mail-in elections are inferior to traditional secret ballot elections. 

Article on Feinstein's Compromise

Shepard Convention Services Case

Two powerful chairmen of committees with jurisdiction over health care issues are taking opposing positions on how to pay for health care reform, with new taxes on employer-provided health benefits a key point of contention.  In a House Ways and Means Committee hearing this week, Chairman Charles Rangel (D-NY) said that there is “no way” he would support taxing employer-provided health benefits.  HR Policy Association agrees with him on this point.  In recent testimony before the Committee, Association Chairman J. Randall MacDonald, Senior Vice President, Human Resources for IBM said, “If we began to tax employee benefits, there would be mutiny at the gate” and taxing benefits is “counterintuitive to the problem we’re trying to solve.”  However, Senate Finance Committee Chairman Max Baucus (D-MT) has indicated he will consider capping the exclusion, calling it “too regressive” and arguing that it “skews the system.”  The White House has given mixed signals on this issue.  HHS Secretary Kathleen Sebelius has said that eliminating the tax break “has a huge potential of destabilizing the private market and leaving more Americans uninsured,” but also cautioned that President Obama is open to “all serious discussions” considering it and other ideas to finance health reform.   The Senate Finance Committee will take up this issue on May 12 when it holds its third and final health reform roundtable on how to pay for fixing our health care system.

Finance Committee Announcement

New York Times Article

New York Times Article

With reports of a potential EFCA variation that would abandon card checks in favor of quick elections or mail ballots, new data from the NLRB indicate that unions already win two out of every three elections under the current system.  A new report by the Bureau of National Affairs using NLRB data shows unions winning 66.8 percent of private ballot representation elections conducted by the NLRB in 2008.  This is a substantial increase from 60.4 percent in 2007 and the highest union win rate since 1955, although unions have won more than half of all representation elections in each of the past 12 years.  Moreover, the number of representation elections increased in 2008, the first increase in the number of elections conducted by the Board since 1998.  Under the current system, 95 percent of all elections are conducted within 56 days of the filing of a petition by the union, with a median of 38 days.  This period of time gives employees an opportunity to hear from and discuss all sides of the unionization issue with the union, fellow employees and the employer.  With the union winning two-thirds of the time, EFCA supporters will be hard pressed to explain why a shorter time frame is needed.

HR Policy Press Release

Senate Majority Whip Richard Durbin (D-IL) has introduced legislation that would cap executive compensation at a multiple of average employee pay unless 60 percent of shareholders approve a higher amount.  Under the Excessive Pay Shareholder Approval Act (S. 1006), unless a company had such shareholder approval, pay for any employee would be limited to 100 times the average compensation of all employees at the company.  The bill would require companies to include in their proxy statements the average employee compensation, the amounts paid to the lowest and highest paid employees, the number of employees paid more than 100 times the average employee compensation and their total compensation.  Sen. Durbin also introduced legislation (S. 1007) that would cap the deductibility of executive compensation at 100 times the average employee salary.  "Shareholders should be looking over [companies'] shoulders as they adopt excessive executive pay structures, and the taxpayers should not be subsidizing the resulting income disparities," Durbin said in introducing the bills.

Durbin Legislation and Statement

Unveiled in DOL’s FY 2010 budget this week are significant increases for the Wage and Hour Division, OFCCP, and OSHA, while cutting the budget for union oversight and quietly dismantling the enhanced labor reporting requirements promulgated by the previous administration.  The FY 2010 budget proposes to increase Wage and Hour funding by 18.4 percent, OSHA by 14.6 percent, and OFCCP by a whopping 34.1 percent.  The union reporting budget would be cut by nearly 9 percent.  Further, DOL last month quietly withdrew the requirement that union officers and employees file the updated Form LM-30 to disclose potential conflicts of interest they may have, and said that it would not “bring enforcement actions based upon a failure to use a specific form to comply with the statutory obligation.” Union officers and employees are now able to file the previous form that had been in place for 40 years.

Daily Labor Report Article (Subscription required)

DOL FY 2010 Budget Brief

This week, Senator Russ Feingold (D-WI) introduced legislation that would prohibit pre-dispute arbitration agreements in the employment setting.  The Arbitration Fairness Act (S. 931), which also applies to consumer and franchise contracts, would only permit arbitration that is agreed to after the dispute arises, unless the arbitration provision is in a collective bargaining agreement. S. 931 will likely receive further consideration and significant action in this Congress.  The "Fair Arbitration Now Coalition," which includes members such as the AFL-CIO, SEIU, Leadership Conference on Civil Rights, and the National Employment Lawyers Association, is actively pursuing the passage of the legislation, while at the same time they are pushing the Employee Free Choice Act which mandates that arbitrators write labor contracts.    

HR Policy Brief

S. 931

H.R. 626

HR Policy is urging the EEOC to ensure that the regulations implementing the Genetic Information Nondiscrimination Act (GINA) not require employers "to go back and remove from existing files genetic information obtained long ago."  This week, the Association joined the Equal Employment Advisory Council in requesting several revisions to the Equal Employment Opportunity Commission's (EEOC) proposed GINA regulations.  The comments also stressed that genetic information acquired due to a physician's overly broad response to post-offer, pre-employment and fitness for duty exams should be considered to fall within GINA's safe harbor for inadvertently acquired genetic information.  Such broad responses often include family history, which is considered genetic discrimination under GINA.  We further requested the EEOC to clarify that wellness programs, which offer participants financial inducements to participate, be considered "voluntary" and fall within the scope of GINA's voluntary wellness program exception.  GINA will take effect on November 21, 2009.   

Comments to GINA Proposed Regulations

CalSTRS Press Release

CAlSTRS Pay Guidelines

BEERG Newsletter (5/1/2009)

Kelsey National Corporation has been selected as the new administrator for the National Health Access program, transitioning the program from ExtendHealth.  The transition was completed on April 10, 2009.  National Health Access was developed at the request of the Association’s Directors to offer employers a solution that helps workers who would not otherwise qualify for employer sponsored health care coverage find health insurance.  In a press release issued by Kelsey National Corporation, Greg Lee, Senior Vice President Human Resources for Motorola stated, “We are impressed with Kelsey’s 45-plus years of experience working with employers and Associations to help workers find affordable health care coverage. We believe that Kelsey’s capabilities will help us grow this important effort while the nation continues to discuss policy solutions to address the uninsured in America.”  To learn more about National Health Access, contact Steve Wetzell, Executive Vice President, Health Care Initiatives at (202) 789-8636, or at swetzell@healthcarert.com.

Press Release