United States: Employee Rights Act Introduced. (Beltway Buzz, August 3, 2018)

Last Updated: August 6 2018
Article by James J. Plunkett

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what's happening in Washington, D.C. could impact your business.


Both the House and Senate are out on August recess (though the Senate returns on August 15), but that does not stop the D.C. labor and employment policy machine from continuing to crank out widgets. Here is your Beltway Buzz.

Purple Haze. On August 1, the National Labor Relations Board issued a notice and invitation to file briefs on whether it "should adhere to, modify, or overrule Purple Communications"—a ruling that permits employees to use company email systems to solicit support for union organizing drives or convey other messages protected by the National Labor Relations Act (NLRA). The 2014 decision has caused consternation within the employer community, which views the case as infringing on employer property rights. Members Mark Gaston Pearce and Lauren McFerran dissented from the notice, with Pearce arguing that, "Nothing has changed since the issuance of Purple to warrant a re-examination of this precedent." Briefs are due by September 5, 2018, and responsive briefs are then due by September 20, 2018.

Employee Rights Act Introduced. Late last week, Rep. Phil Roe (R-TN) introduced the Employee Rights Act of 2018 (H.R. 6544). The bill would enact two changes to the NLRA and one change to the Labor-Management Reporting and Disclosure Act in order to promote the principle of voluntary unionism that undergirds federal labor law. The bill would:

  • require unions to be certified through a secret ballot election in order to avoid the peer pressure and intimidation often associated with card check campaigns;
  • require that employees in states without right-to-work laws opt in to having their dues used for non-bargaining purposes, rather than requiring them to opt out; and
  • allow employers to request a secret ballot recertification election to determine whether their employees wish to remain represented by a union when there has been turnover of more than 50 percent of the bargaining unit.

These provisions provide Republicans with positive, proactive messaging on labor matters. Consequently, the Buzz wouldn't be surprised if this bill gets some attention in the House of Representatives.

Paid Leave Bill Introduced. On August 2, 2018, Sen. Marco Rubio (R-FL) and Rep. Ann Wagner (R-MO) introduced the Economic Security for New Parents Act—a paid parental leave bill. The bill would allow new parents to draw on their Social Security benefits for two months in exchange for delaying receipt of their benefits upon retirement. Significantly, the bill is limited to paid paternal leave only and does not address other forms of paid leave (e.g., paid sick leave). Rubio and Wagner penned an op-ed on the bill here.

Immigration Issues in House Funding Bill. Last week, the U.S. House of Representatives Committee on Appropriations approved the 2019 funding bill for the Department of Homeland Security (DHS). Interestingly, the bill includes several Republican-sponsored amendments that would have positive impacts on employers that rely on foreign workers as part of their workforces.

  • First, the bill provides that all agricultural work—not just "seasonal" work—is eligible for the H-2A guest worker program.
  • Second, the bill restores the "returning worker exemption" of the H-2B seasonal guest worker visa program, which exempts certain returning workers from the overall cap number. It also allows for proportional allocation of visas for businesses, instead of the "all or nothing" system.
  • Finally, the Fairness for High-Skilled Immigrants Act of 2017 (H.R. 392) was included in the funding bill. This amendment would eliminate the per-country caps for employment-based immigrants.

No telling yet whether these provisions will be included in some sort of final funding package, as there are many more steps to go in the process. But government funding will be a major legislative topic in August and September, so the Buzz will be watching closely.

Feldblum Speaks. The Buzz has discussed the Republican "hold" that is being placed on Commissioner Chai Feldblum's renomination to the Equal Employment Opportunity Commission (EEOC) and how this is preventing Republicans from taking control of the EEOC. In this interesting and thoughtful piece, Commissioner Feldblum responds to some of her critics and clearly sets forth her views regarding religious freedom and protections for LGBTQ individuals.

Just Another Brick in the Wall. Construction on President Trump's promised southern border wall began in earnest this week.

Russell Building Anniversary. Construction on what is now the Russell Senate Office Building began this week back in 1906. Upon its completion in 1909, the building was named—not too creatively— "The Senate Office Building." Critical of the size and expense of the building, the New York Times noted, "When in the course of human events it became necessary for these ninety-two business gentlemen to have business offices, they erected a building that a thousand men would feel lonesome in." In 1972, the building was renamed after Senator Richard B. Russell Jr. (D-GA), who served in the Senate from 1932 to 1971. While Russell deserves credit for sponsoring the National School Lunch Act, he also filibustered the Civil Rights Act of 1964 and opposed racial integration of public places. Perhaps "Senate Office Building" is a better name, after all.

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