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As Republican ascent dooms labor legislation, union’s hopeful eyes turn to the agencies

November 9th, 2010  |  Matt Pavich

As the dust clears following last week’s Republican takeover of the House of Representatives, the impact of the elections on matters affecting labor and employment is becoming clearer. While the Democrats kept control of the Senate, the loss of the House likely means that many pieces of pro-labor and pro-worker legislation have come to an ignominious end. Additionally, the Republican ascent promises great difficulty for the Democrats and the White House as they attempt to implement the recently enacted health care reform law.

Employment legislation will be greatly affected by the Republican rise. Under outgoing chairman, George Miller (D-CA), the House Committee on Education and Labor held hearings on legislation including the Protecting Older Workers Against Discrimination Act and the Paycheck Fairness Act. The Paycheck Fairness Act, which passed the House in January, 2009, would amend the FLSA to allow for unlimited compensatory and punitive damages in sex-based wage discrimination suits and would decrease the affirmative defenses available to employers in such cases. The Senate is scheduled to debate the measure on November 17, 2010, during its lame-duck session, but the election of Mark Kirk (R-IL) to the Senate for the remainder of the term means that the Democrats have lost even more of their ability to defeat a Republican filibuster.

The prospects are equally bleak for the Protecting Older Workers Against Discrimination Act, which was crafted in response to the Supreme Court’s decision in Gross v. FBL Financial. The measure would overturn that decision and would make the standard for proving age discrimination the same as those alleging race, national origin or religious discrimination. According to the House Committee’s website, the Gross decision made it “much more difficult to hold employers accountable for their illegal activity,” because victims of age discrimination are now required to prove that their employer would not have made the same adverse employment decision absent consideration of age. Given that the bill did not receive a vote in the House before the midterms, it is unlikely that it will receive a vote in the Republican-led House. It will likely not even make it out of the Committee, which will now be led by John Kline (R-MN), who has announced that his priority will be to repeal the health care bill and to corral “government spending and…looming tax hikes.” Given those declared priorities, it seems unlikely that a bill to overturn a decision much beloved by the business community will ever see the light of day.

Labor legislation will fare no better. With the Republican victories in the House, the Employee Free Choice Act is now virtually certain not to see a vote. The new battleground for the objectives embodied in the bill will be the federal agencies charged with enforcing the nation’s labor law, specifically the National Labor Relations Board The NLRB has already announced changes to its violation posting rules, as well as the use of enhanced penalties for Act violations. In addition, Member Mark Pearce has publicly discussed the possibility of shorter periods between election petitions and elections, something that the NLRB could effectuate through its rulemaking process. The National Mediation Board may also be at the forefront of the regulatory push for more worker and union friendly action, having recently reformed its election procedures so that votes not cast in a representation election are now not counted at all; in the past, such votes were considered a vote against representation. Look to the already assertive Department of Labor to implement even broader measures to implement the Obama administration’s agenda—assuming the Republican House does not hamper its efforts through a sharp cut in funding.

One of the key battlegrounds between the emboldened Republicans and their Democratic counterparts will be health care reform. The incoming chairmen of the House Committees on Education and Labor and Government Oversight and Reform, John Kline (R-MN) and Darrell Issa (R-CA) have made no attempt to hide their desire to use all their powers to sound a legislative death knell to the Affordable Care Act. Kline was quoted by Minnesota Public Radio as saying he expects to pursue plans to defund portions of the bill. Such a push would likely bring the House into conflict with Senate Democrats, who are expected to oppose any appropriation bill that does not fund the Act, creating the looming specter of a government shutdown. The focus on efforts to oppose the Act should probably be on Issa’s committee. In a recent, published interview, Issa said that he will hold hundreds of hearings and will investigate how the health care bill was implemented.