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Pending bills will affect employment relationship

06.01.2007

Congress’ first quarter of 2007 has been an active one, with proposals made for regulating various aspects of the employment relationship. Since January, several significant pieces of legislation pertaining to labor and employment have been considered. The following is a summary of just a few of them.

Employee Free Choice Act

The Employee Free Choice Act would amend the National Labor Relations Act to allow workers to choose union representation through a National Labor Relations Board (NLRB) card check rather than a Board-supervised secret-ballot election. Under the card-check method, union representation could be established if a union shows that a majority of the employees in the bargaining unit signed cards authorizing the union to represent them. Under current law, even when a majority of the employees sign authorization cards, the employer can ask the NLRB to conduct a secret-ballot election to ensure that its employees’ sentiments about the unionization are reflected accurately.

Labor union representatives say the bill is needed because secret-ballot elections have become an opportunity for employers to keep workers from organizing by intimidating those who are interested in forming a union. The measure’s proponents claim that the current NLRB representation process has become a deathtrap for workers who are struggling to form a union. Employers oppose the bill, contending that the card-check process subjects workers to intimidation by labor organizations.

The bill also provides for mediation and arbitration of first collective bargaining agreements if the parties fail to reach an agreement after 90 days of bargaining and 30 days of mediation by the Federal Mediation and Conciliation Service (FMCS). The bill’s opponents have expressed concerns that arbitrating first contract provisions could result in union contracts in which the government, through FMCS arbitrators, imposes bargaining unit members’ wages, terms, and conditions of the employment for the contract’s first two years. IN those circumstances, employees would be denied the opportunity to vote on whether to ratify the contract’s terms and would be unable to seek a decertification election during the contract’s two-year term.

As currently proposed, the bill provides tougher penalties for unfair labor practices (ULPs) committed by employers during an organizing campaign or during bargaining for a first labor agreement. For example, an employer found to have committed a ULP during an organizing campaign or during bargaining for a first contract would be required to pay triple back pay damages and up to $20,000 per violation. Also, to ensure speedy resolution in terminations, the bill would require the NLRB to seek court orders to quickly reinstate workers illegally fired during organizing or first contract bargaining.

On March 1, the bill passed the House by a margin of 241-185. The Senate is currently considering an identical bill. The legislation likely will face much more difficulty in the Senate. In addition, President George W. Bush has said he will veto the bill.

Mental health parity

The House and the Senate are considering slightly different bills on mental health, both of which would have significant consequences for employers that provide mental health coverage as part of an insurance plan. The House measure would require that mental health benefits offered by group health plans with 50 or more enrollees equal the coverage provided for the other medical conditions. The Senate bill would require businesses with 50 or more workers to offer the same medical benefits for mental health care as they do for the other conditions.

The bills are intended to amend the Mental Health Parity Act of 1996 to eliminate what the bill’s proponents believe are discriminatory provisions that erect obstacles to accessing health care for millions of Americans who suffer from mental health and addiction disorders.. The 1996 law required equality only in annual and lifetime limits. The proposed legislation would mandate equality in financial requirements, including deductibles, copays, coinsurance, and out-of-pocket expenses. The legislation also would mandate equality in treatment limits, including frequency of treatment (the number of office visits and days of coverage), and equality in out-of-network coverage. Notably, however, the bill wouldn’t require an employer to procure a group health plan that provides mental health coverage.

A significant possibility exists that both the House and the Senate will pass their respective versions of the bill. While the Bush administration hasn’t commented on the bills, many believe the president would be inclined to sign the legislation. Employers can anticipate seeing an increase in insurance premiums if the legislation is enacted.

Genetic Information Non-Discrimination Act

The Genetic Information Non-Discrimination Act is intended to prohibit discrimination on the basis of genetic information with respect to health insurance and employment. The bill would amend Title VII of the Civil Rights Act of 1964, the Employee Retirement Income Security Act, and other laws to prohibit employers for refusing to hire, firing, or otherwise discriminating against employees on the basis of genetic information. The bill also would prevent group health plans from adjusting premiums on the basis of genetic information, wouldn’t allow the insurer to require genetic testing, and wouldn’t allow collecting of genetic information for underwriting purposes.

The measure’s proponents say that many individuals forgo genetic testing out of fear that they will lose their jobs or insurance and that genetic research needs to become more commonplace for new treatments to be advanced, along with uncovering better methods to prevent diseases. Even among the bill’s proponents, concerns exist that it provides for punitive damages for simple paperwork violations. In addition, concerns have been expressed about the lack of a single national standard for recordkeeping, which would leave employers subject to a “patchwork” of state requirements.

The bill’s opponents argue that it would change how employers use and process health care information. In addition , opponents assert that the bill fails to recognize the challenge employers would face in complying with the patchwork of state laws on medical information and genetic nondiscrimination. Opponents contend that if the bill becomes law, it could lead to unfounded litigation with the possibility of compensatory and punitive damages.

The House passed its bill on April 25 by a vote of 420-3. The measure now moves to the Senate, where it is expected to be on the floor soon. Companion legislation is pending in the Senate with29 cosponsors. President Bush issued a statement that the administration is in favor of the bill. We can anticipate that at least some version of the bill will become law.

Bottom line

With the number of bills relating to employment matters pending in Congress, we can expect that several bills will be passed this year, resulting in further regulation of the workplace. In addition to the bills previously discussed, Congress is considering several immigration and security-related matters as well as ones that would raise the minimum wage.

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If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department. Find us online atwww.gdm.com

Copyright 2007 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

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