Labor Issues Legislative Update

Labor Issues Legislative Update

113th Congress, Second Session

The U.S. Chamber of Commerce Labor, Immigration and Employee Benefits Division is monitoring the following labor legislative issues. Issues are not presented in any specific order.

Union and Organizing Issues

Bills Introduced in Reaction to the Noel Canning Decision

Advice and Consent Restoration Act

On January 30, 2013, Sen. Roy Blunt (R-MO) introduced S.188, the “Advice and Consent Restoration Act.” The bill would forbid an individual from “receiving any salary or payment for services performed as a member of the National Labor Relations Board” unless the individual has been nominated by the President and confirmed by the Senate. The bill also states that “notwithstanding any other provision of law, an unconstitutional quorum of the National Labor Relations Board shall not convene or take any agency action, as defined in section 551 of title 5, United State Code, and including any determination, hearing, investigation, direction of election, certification, order, rule, regulation, or review of any determination, until the date on which final judgment is entered in all cases challenging the constitutionality of the purported appointment of individuals to such Board that are pending before a Federal court on the date of enactment of this Act.”

On February 6, 2013, Rep. Mike Kelly (R-PA) introduced the companion bill, H.R. 557.

NLRB Freeze Act of 2013

On January 30, 2013, Sen. John Barrasso (R-WY) introduced S. 180, the “NLRB Freeze Act of 2013.” The bill states that “notwithstanding any other provision of law, any determinations made by the National Relations Board with respect to which unconstitutional members were part of the Board’s quorum, shall not be given any force or effect until the date on which final judgment is entered in all cases challenging the constitutionality of the appointment of members to such Board during a recess of the Senate that are pending before a Federal court on the date of enactment of this Act.” Restoring the Constitutional Balance of Power Act

On January 31, 2013, Sen. Mike Johanns (R-NE) introduced S. 190, the “Restoring the Constitutional Balance of Power Act of 2013.” The bill would bar federal funds from being used “by the National Labor Relations Board to undertake or enforce activities commencing on or after January 4, 2012 that require authorization by not less than a quorum of the members of the Board.” The Act would terminate when the Board reaches a quorum “consistent with the advice and consent requirement of the United States Constitution, as determined in accordance with the decision of United States Court of Appeals for the District of Columbia Circuit in the case of Noel Canning v. National Labor Relations Board.”

To Declare that Certain Agency Actions by the National Labor Relations Board Shall Have No Force or Effect until Final Disposition is Made in Certain Actions Relating to the Appointment…

On March 5, 2013, Rep. Steve Womack (R-AR) introduced H.R. 976. The legislation states that “any agency action taken by the National Labor Relations Board since January 4, 2012 shall have no force or effect unless each member of the Board has been appointed by and with the advice and consent of the Senate, in accordance with clause 2 of section 2 of Article II of the United States Constitution; or appropriately in accordance with clause 3 of section 2 of Article II of the United States Constitution.” The bill would forbid the National Labor Relations Board from taking further action until the constitutionality of the recess appointments are decided by the judicial system, and clarifies that the term “agency” under the National Labor Relations Act (NLRA) does not include activities taken by the office of General Counsel.

Preventing Greater Uncertainty in Labor-Management Relations Act

On March 13, 2013, Rep. David “Phil” Roe (R-TN) introduced H.R. 1120, the “Preventing Greater Uncertainty in Labor-Management Relations Act.” The legislation would prohibit the Board from enforcing any action taken on or after January 4, 2012 that required a quorum and to cease all activity that required a quorum. The bill would remove the restrictions on the Board’s authority in the following circumstances: the Senate confirms appointments made by the President in order to meet the quorum threshold; the Supreme Court rules on the constitutionality of the recess appointments; and/or the terms of the recess appointments expire when the First Session of the 113th Congress adjourns.

On March 20, 2013, the House Education & Workforce Committee marked up the bill with a clarification that the Board could not make any interagency appointments that requires a Board quorum. The House Education & Workforce Committee voted to approve the legislation by a vote of 23-16.

On April 11, 2013, prior to the vote on the House floor, the Chamber sent a letter to the House, supporting the legislation. On April 12, 2013, the House passed the legislation on a party-line vote of 219-209, with 10 Republicans voting against the bill.

On April 25, 2013, Sen. Lamar Alexander (R-TN) introduced the companion bill in the Senate, S. 850.

May 1, 2014 2 Other Bills

Binding Arbitration of First Contracts

On January 4, 2013, Rep. Gene Green (D-TX) introduced H.R. 169, the “Labor Relations First Contract Negotiations Act of 2013.” The bill would require the arbitration of initial contract negotiation disputes. Under the bill, if an employer and union cannot agree on a first contract within 60 days after certification, the employer and representative of the union must select a “mediator” to resolve any outstanding disputes and if after 30 days after the selection of the mediator, the parties are still unable to agree on the outstanding issues, either party could request the matter be arbitrated by the Federal Mediation and Conciliation Services (FMCS).

National Right to Work Act

On January 31, 2013, Sen. Ron Paul (R-KY) introduced S. 204, the “National Right-to- Work Act.” The bill would amend the National Labor Relations Act and the Railway Labor Act to repeal the provisions in these Acts that permit employers, pursuant to a collective bargaining agreement that contains a union security agreement, to require employees to join a union as a condition of employment, and require the payment of union dues or fees as a condition of employment.

On March 5, 2013, Rep. Steve King (R-IA) introduced the companion bill in the House, H.R. 946.

Protecting American Jobs Act

On February 15, 2013, Rep. Austin Scott (R-GA) introduced H.R. 795, the “Protecting American Jobs Act.”

The bill would eliminate NLRB adjudication of unfair labor practices, and permit an “aggrieved party” to file a lawsuit in federal court.

Salting

On April 25, 2013, Rep. Steve King (R-IA) introduced H.R. 1746, “The Truth in Employment Act of 2013.” The bill would amend the National Labor Relations Act (NLRA) so an employer is not required “to employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.” This bill would prevent the practice of “salting,” where union employees apply for jobs with a specific intent to organize or cause disruption in the workplace. The bill would overturn a Supreme Court decision that found this to be protected activity.

Union Coercion Prevention Act

On April 26, 2013, Rep. Steve Stockman (R-TX) introduced H.R. 1815, the “Union Coercion Prevention Act.” The legislation would amend the National Labor Relations Act (NLRA) to mandate a secret ballot election for all union-held elections, and redefine the term

May 1, 2014 3 “majority” to “mean the majority of all the employees in the unit, and not the majority of employees voting in the election.”

The bill also reverses the NLRB’s proposed rulemaking on representation procedures by among things, mandating that the Board hold an election “no less than 40 calendar days following the filing of an election petition with the employer;” and stipulating that an election for the union is not held until a hearing is conducted, and outstanding issues are resolved by the Regional Director or the Board. Furthermore, election results would not be final until the Board has ruled on “each pre-election issue” after conducting a hearing.

The legislation would require a “labor organization” to be “liable for wages lost and union dues or fees collected unlawfully, if any and an additional amount as liquidated damages” if the union is found to have “interfered with, restrained, or coerced employees in their exercise of their rights under section 7 to form or join a labor organization or to refrain therefrom, including the filing of a decertification petition.” The bill would also prohibit a “labor organization” from filing objections to an election for decertification if the union has been found to have “interfered with, restrained, or coerced an employee in connection with the filing of a decertification petition.”

Tribal Labor Sovereignty Act of 2013

On March 15, 2013, Rep. Kristi Noem (R-SD) introduced H.R. 1226, the “Tribal Labor Sovereignty Act of 2013.” The legislation would amend the National Labor Relations Act to provide that any enterprise or institution owned and operated by an Indian tribe and located on its lands is not considered an employer (thus excluding such enterprises or institutions from coverage by the Act).

On July 16, 2013, the Chamber sent a letter to Rep. Noem (R-SD), applauding introduction of the bill.

On August 2, 2013, Sen. Jerry Moran (R-KS) introduced the companion bill in the Senate, S. 1477.

Worker Anti-Retaliation Act

On June 11, 2013, Rep. Alan Grayson (D-FL) introduced H.R. 2311, the “Worker Anti- Retaliation Act.” The bill would among other things, prohibit a business (defined as a parent corporation and all affiliated corporations with annual gross revenues exceeding $5,000,000) from retaliating against an employee by “discharging or cause to be discharged or in any other matter discriminate against or threaten any adverse action, including changes in working assignments or conditions” due to the fact than such employee (s) “disseminated any message on the employer’s property or elsewhere, including through images, handbilling, picketing, work stoppages, or gathering in groups to protest conflicts with employers or to help persuade employers to change working conditions, provided the employees do not have a representative for the purposes of collective bargaining and the employee’s actions—were not taken during work time, except during a lawful work stoppage; were peaceful; and did not destroy or damage property of the employer or block entrances or exits of the employer, or otherwise impede the

May 1, 2014 4 operations of the employer or the work of other employees; or planned any of these actions or assisted, encouraged, or supported another employee in engaging in any such actions.”

Secret Ballot Protection Act

On June 13, 2013, Rep. Phil Roe (R-TN) introduced H.R. 2346, the “Secret Ballot Protection Act.” The bill makes it an unfair labor practice for an employer to recognize or bargain with a unit that has not been selected by a majority of employees in a secret ballot election conducted by the National Labor Relations Board (NLRB). The legislation would also make it an unfair labor practice for a union to cause or attempt to cause an employer to recognize or bargain with a union that has not been selected by a majority of employees in a secret ballot election.

On June 26, 2013, the House Education & Workforce Subcommittee on Health, Employment, Labor, and Pensions held a hearing on the merits of the bill.

Representation Fairness Restoration Act

On June 13, 2013, Rep. Tom Price (R-GA) and Sen. John Isakson (R-GA) introduced H.R. 2347 and S. 1166, respectively, the “Representation Fairness Restoration Act.” The legislation addresses the Board’s decision in Specialty Healthcare by amending Section 9(b) to remove the reference to the “employer unit, craft unit, plant unit, or subdivision,” and would insert an eight-factor test to determine whether employees share a sufficient community of interest to be grouped in a single unit.

On June 26, 2013, the House Education & Workforce Subcommittee on Health, Employment, Labor, and Pensions held a hearing on the merits of the bill.

On April 9, 2014, during the House Committee on Education & Workforce’s mark-up of H.R. 4320, the “Workforce Democracy and Fairness Act,” Rep. Tom Price introduced H.R. 2437, the “Representation Fairness Restoration Act” as an amendment to the underlying bill. The Committee adopted the amendment by a vote of 21-13.

To Amend the National Labor Relations Act and the Railway Labor Act to Prohibit the Preemption of State Stalking Laws

On June 20, 2013, Rep. Tom Price (R-GA) introduced H.R. 2472. The bill would amend the National Labor Relations Act and the Railway Labor to add a new section that states:

“Nothing in this Act shall be construed to preempt a law of any State, Territory, or the District of Columbia that prohibits, criminalizes, or creates a civil cause of action for stalking, cyberstalking, or harassment.”

May 1, 2014 5 To Amend the National Labor Relations Act and the Railway Labor Act to Prohibit the National Labor Relations Act and the Railway Labor Act to Prohibit the Preemption of State Identity Theft Laws

On June 20, 2013, Rep. Tom Price (R-GA) introduced H.R. 2473. The bill would amend the National Labor Relations Act and the Railway Labor to add a new section that states:

“Nothing in this Act shall be construed to preempt a law of any State, Territory, or the District of Columbia that prohibits, criminalizes, or creates a civil cause of action for identity theft or the release of an individual’s personally identifiable information.”

Employee Rights Act

On November 14, 2013, Rep. Tom Price (R-GA) and Sen. Orrin Hatch (R-UT) introduced H.R. 3485 and S. 1712, respectively, the “Employee Rights Act.”

The legislation would amend the National Labor Relations Act to mandate a secret ballot election for all union-held elections; redefine the term “majority” to “mean the majority of all the employees in the unit, and not the majority of employees voting in the election”; and require recertification of a union via secret ballot election “whenever any certified or voluntarily recognized bargaining unit existing on or after the date of enactment experiences turnover, expansion, or alteration by merger of unit represented employees exceeding 50 percent of the bargaining unit” between the 120th day and 110th day prior to the collective bargaining agreement’s expiration or prior to the conclusion of three years, whichever comes earlier or if there is no negotiated collective bargaining agreement, within 30 days. The legislation would make the union liable for “wages lost and union dues or fees collected unlawfully, if any, and an additional amount as liquated damages” if the union unlawfully interferes with the filing of a decertification petition.

The bill also reverses the NLRB’s proposed rulemaking on representation procedures by among things, mandating that the Board would stipulate that an election for the union is not to be held until a hearing is conducted, and outstanding issues are resolved by the Regional Director or the Board. Furthermore, election results would not be final until the Board has ruled on “each pre-election issue” after conducting a hearing.

The legislation also amends the Labor-Management Reporting and Disclosure Act of 1959 to prevent a union from ordering a strike unless the union first obtains the majority vote of “every employee in a bargaining unit represented by a labor organization, regardless of membership status” via a secret ballot election; authorizes an employee to opt-in for the purposes of allowing their union dues fees, assessments, or other contributions to be “used or contributed for any purpose not directly germane to the labor organization’s collective bargaining or contract administration”; and strengthens the prohibition against extortion and the use of force or violence thereof for achieving objections relating to union representation, compensation, or conditions of employment by imposing a penalty of no more than $100,000 or imprisonment for 10 years, or both.

May 1, 2014 6 Workforce Democracy and Fairness Act

On March 27, 2014, Rep. John Kline (R-MN) and Sen. Lamar Alexander (R-TN) introduced H.R. 4320 and S. 2178, respectively, the “Workforce Democracy and Fairness Act.” The legislation addresses the Board’s proposed regulation on changes to representation proceedings.

The bill would modify the proposed regulations made to representation proceedings by limiting the NLRB’s discretion in representation case proceedings. Under the terms of the legislation, the Board would be required to allow a minimum of 14 days before a pre-election hearing on representation case issues could be held. The NLRB would also prohibit the agency from conducting an election proceeding less than 35 days after the filing of a petition.

On April 9, 2014, prior to mark-up before the House Education & Workforce Committee, the Chamber sent a letter supporting the legislation.

On April 9, 2014, the House Committee on Education & Workforce marked up the bill. During the mark-up, Rep. John Kline (R-MN) introduced an amendment in the nature of a substitute, which made technical corrections to the bill. During the mark-up, an amendment was adopted by Rep. Tom Price (R-GA) with language identical to H.R. 2437, the “Representation Fairness Restoration Act” that would reverse the Specialty Healthcare decision by prohibiting micro-units and would require the NLRB to consider employees’ “community of interest” when determining the appropriate bargaining unit by a vote of 21-13.

Rep. George Miller (D-CA) offered a mine safety bill, the proposed Robert C. Byrd Mine Safety Protection Act, as a substitute to H.R. 4320, and Rep. Jared Polis (D-CO) offered ENDA as a substitute for H.R. 4320.

Rep. Miller also offered an amendment to Price's amendment that would have made the Republicans' amendment of Section 9(b) of the NLRA not effective until the Department of Labor's Bureau of Labor Statistics reported the lowest 10 percent of workers in all occupational codes were earning an hourly wage of at least $10.10.

As soon as each of the Democrats' amendments was offered, Rep. Roe (R-TN) raised a point of order that the amendments were not germane to H.R. 4320. Rep. Kline (R-MN) ruled all of the amendments were out of order. Democrats appealed each one of Kline's rulings to the full committee, which voted along party lines to support the chairman's rulings.

On April 9, 2014, the House Education & Workforce Committee approved the amended legislation by a vote of 21-14.

Employee Privacy Protection Act

On March 27, 2014, Rep. Phil Roe (R-TN) introduced H.R. 4321, the “Employee Privacy Protection Act.” The legislation addresses the Board’s proposed regulation on changes to representation proceedings.

May 1, 2014 7 The bill would amend Section 9(c)(1)(B) of the National Labor Relations Act to provide that “Not earlier than 7 days after a final determination by the Board of the appropriate bargaining unit, the Board shall acquire from the employer a list of all employees eligible to vote in the election to be made available to all parties, which shall include the names of the employees, and one additional form of personal contact information of the employee (such as telephone number, email address or mailing address) chosen by the employee in writing.”

On April 9, 2014, prior to mark-up before the House Education & Workforce Committee, the Chamber sent a letter supporting the legislation.

On April 9, 2014, the House Committee on Education & Workforce marked up the bill. At the mark-up, Rep. Phil Roe (R-TN) introduced an amendment in the nature of a substitute, which clarified that the bill would apply to all of the representation case categories in which the National Labor Relations Board conducts secret ballot elections. During the mark-up, Rep. Mark Pocan (D-WI) offered the text of a bill to raise the minimum wage (HR 1010) as a substitute to the bill. Chairman Kline (R-MN) ruled that the amendment was not germane and a motion to table Rep. Pocan’s appeal of that ruling was agreed to in a 21-16 party-line vote. The Committee approved the substituted underlying bill by a vote of 21-17.

To Prohibit Any Appropriations of Funds for the National Labor Relations Board

On April 2, 2014, Rep. Matt Salmon (R-AZ) introduced H.R. 4379. The bill would prohibit any funds to be appropriated for the National Labor Relations Board.

Union Workplace Issues

Project Labor Agreements

On January 23, 2013, Sen. David Vitter (R-LA) introduced S. 109, the “Government Neutrality in Contracting Act.” The legislation seeks to preserve open competition and federal government neutrality toward the labor relations of federal government contractors on federally and federally funded construction projects. On January 29, 2013, Rep. Andy Harris (R-MD) introduced the companion bill in the House, H.R. 436.

Patriot Corporations of America Act

On February 28, 2013, Rep. Janice Schakowsky (D-IL) introduced H.R. 929, the “Patriot Corporations of America Act of 2013.” The legislation provides for both contracting and tax preferences for employers that produce at least 90 percent of their goods and do at least 50 percent of their research and development in the United States.

In order to qualify for preferential treatment, “patriot corporations” would contribute at least five percent of wages to a portable pension fund; pay at least seventy percent of the cost of a standardized health insurance plan; have a position of neutrality in employee organizing drives; provide for full differential salary and insurance benefits for all National Guard and Reserve employees who are called to active duty; and demonstrate that the entity is not in violation of appropriate federal labor, environmental and consumer regulations.

May 1, 2014 8 Flight Duty Requirements

On January 4, 2013, Rep. Michael Grimm (R-NY) introduced H.R. 182, the “Safe Skies Act of 2013.” The legislation would require the Secretary of Transportation to no later than 30 days after the date enactment to “modify” the “final rule” to “apply the Federal Aviation Administration’s proposed rule regarding flight duty time requirements to “all-cargo operations conducted by air carriers in the same manner as those requirements apply to flight crew members in passenger operations conducted by air carriers.”

On November 13, 2013, Sen. Barbara Boxer (D-CA) introduced the companion bill in the Senate, S. 1692.

Employee Paycheck Protection Act

On January 4, 2013, Rep. Tim Griffin (R-AR) introduced H.R. 175, the “Employee Paycheck Protection Act.” The bill would require a labor organization to provide a “written notice” to “all employees covered by the collective bargaining agreement” detailing how the labor organization calculated the share of dues or fees that are for “non-political costs” related to collective bargaining, prior to “imposing or collecting” or “increasing dues or fees” from its members or from any other employees covered by a collective bargaining agreement. The legislation would also require an affirmed consent to exact dues or fees from “any employee covered by a collective bargaining agreement who is not a member of the labor organization.”

Freedom From Union Violence Act

On May 16, 2013, Rep. Paul Broun (R-GA) introduced H.R. 2021, the “Freedom From Union Violence Act.” The legislation would impose a fine of up to $100,000, a prison sentence of up to 20 years, or both, on any person that commits or attempts to commit an act of violence or extortion against another person during a labor dispute.

Rewarding Achievement and Incentivizing Successful Employees Act

On September 19, 2013, Rep. Todd Rokita (R-IN) introduced H.R. 3154, the “Rewarding Achievement and Incentivizing Successful Employees Act/the RAISE Act.” The legislation would amend the National Labor Relations Act to allow an employer to pay its employees greater wages, pay, or other compensation than provided for in the applicable collective bargaining agreement without violating the NLRA.

On September 24, 2013, Sen. Marco Rubio (R-FL) introduced the companion bill in the Senate, S. 1542.

Civil Rights and Discrimination Issues

Comparable Worth and Equal Pay

On January 23, 2013, Sen. Barbara Mikulski (D-MD) and Rep. Rosa DeLauro (D-CT) introduced S. 84 and H.R. 377, respectively, the “Paycheck Fairness Act.” The Act would

May 1, 2014 9 significantly limit defenses to Equal Pay Act claims; permit unlimited punitive and compensatory damages for strict liability violations of the law; and would make it easier to bring class action suits by using an opt-out method. The bill provides that employers asserting that a pay differential between male and female employees is “based on factors other than sex” must prove those factors are “job-related” and “consistent with business necessity.”

Unlike previous versions of the bill, S. 797 does not contain: “comparable worth” guidelines; limits the applicability of punitive damages to only intentional acts; delays implementation of the legislation by six months in order to educate small businesses on compliance with the new provisions; expands coverage of the EPA to include job applicants; and has language stating that the bill cannot be construed as a way to circumvent immigration laws. On April 1, 2014, Sen. Barbara Mikulski reintroduced the legislation as S. 2199.

On April 1, 2014, the Senate HELP Committee held a hearing entitled, “Access to Justice: Ensuring Equal Pay with the Paycheck Fairness Act,” where Camille Olson of the Labor Relations Committee testified on the Chamber’s behalf, explaining the Chamber’s opposition to the legislation.

On April 8, 2014, the Chamber sent a Key Vote letter, opposing the bill. On April 9, 2014, the Senate voted along party-lines, 53-44, against a motion to move forward to debate the merits of the bill.

On January 29, 2013, Sen. Tom Harkin (D-IA) introduced S. 168, the “Fair Pay Act of 2013,” and Del. Eleanor Holmes Norton (Del.-DC) introduced the companion bill, H.R. 438. This bill would require employers to provide equal pay for unequal jobs that involve comparable skill, effort, responsibility, and working conditions.

On March 27, 2014, Sen. Dean Heller (R-NV) introduced S. 2172, the “End Pay Discrimination Through Information Act.” The legislation would, among other things, amend Section 15 of the Fair Labor Standards Act to permit employees to discuss salary information with their co-workers.

Equal Employment For All Act

On February 13, 2013, Rep. Steve Cohen (D-TN) introduced H.R. 645, the “Equal Employment for All Act.” The legislation would amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees, with a few exceptions, as a factor in making adverse employment decisions.

The bill would prohibit the use of consumer credit checks by employers as part of the hiring or firing process, unless the job involves national security, Federal Deposit Insurance Corporation clearance, or positions of “significant financial responsibility,” such as bank manager, loan officer, or financial manager. The bill also would prohibit employers from asking applicants to voluntarily submit to credit checks.

On December 17, 2013, Sen. Elizabeth Warren (D-MA) introduced a similar bill in the Senate, S. 1837.

May 1, 2014 10 Discrimination Based on Sexual Orientation

On April 25, 2013, Rep. Jared Polis (D-CA) introduced H.R. 1755, and Sen. Jeff Merkley (D-OR) introduced the companion bill, S. 815, respectively, the “Employment Non- Discrimination Act.”

The legislation would make it unlawful for most employers to fire or otherwise discriminate against an individual in employment due to sexual orientation or gender identity. The gender identity provisions were not included in the version of the bill that passed the House in the 110th Congress.

In past years, the Chamber negotiated with supporters of the Employment Non- Discrimination Act to ensure that the bill accomplishes its goal without unintended consequences. As a result of these negotiations, the bill has been improved so that it does not erode ERISA preemption, impose a disparate impact cause of action, or require construction of new or additional facilities. The current bill respects all of the negotiations made by the Chamber in prior years.

On July 10, 2013, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a mark-up, where Chairman Tom Harkin (D-IA) introduced an amendment in the nature of the substitute that made technical corrections. At the end of the mark-up, the Senate HELP Committee passed the revised bill on a 15-7 vote with three Republicans: Sen. Mark Kirk (IL), Sen. Orrin Hatch (UT), and Sen. Lisa Murkowski (AK) voting in favor.

On November 4, 2013, the Senate voted 61-30 to invoke cloture on the motion to proceed to the bill. On November 6, 2013, the Senate adopted by voice vote an amendment offered by Sen. Rob Portman (R-OH) that would prohibit federal agencies and state and local governments from penalizing through the withholding of licenses, government contracts, tax exempt status or other benefits –religious employer’s exempt from the bill’s provisions. The amendment also would remove from the bill’s finding section a reference to “unconstitutional discrimination” on the basis of sexual orientation and gender identity. On November 7, 2013, after rejecting an amendment, offered by Sen. Pat Toomey (R-PA), which would have expanded the definition of religious employers exempted from the bill’s provisions by a vote of 43-55, the Senate passed the legislation by a vote of 64-32.

Bankruptcy Nondiscrimination Enhancement Act

On February 13, 2013, Rep. Steve Cohen (D-TN) introduced H.R. 646, the “Bankruptcy Nondiscrimination Enhancement Act.” The legislation would amend Section 525(b) of the Bankruptcy Code by striking the word “solely” so that any consideration of bankruptcy as the basis for an adverse employment decision would be prohibited and explicitly adds denial of employment as a prohibited act.

Equal Standards in Hiring Americans Act

On February 15, 2013, Rep. Rodney Alexander (R-LA) introduced H.R. 759, the “Equal Standards in Hiring Americans Act.” The bill would prohibit the Department of Labor from imposing the Office of Federal Contract Compliance Programs proposed rule on federal

May 1, 2014 11 contractor affirmative action obligations under the Rehabilitation Act from taking effect until the Department of Labor certifies to Congress that each office and division of the Department of Labor is in compliance with the rule’s requirements.

American with Disabilities (ADA) Title III Notification

On February 15, 2013, Rep. Duncan Hunter (R-CA) introduced H.R. 777, the “ADA Notification Act of 2013,” which amends Title III of the ADA to require, as a precondition to commencing a civil action with respect to a place of public accommodation or a commercial facility, that an opportunity be provided to correct alleged violations.

On March 6, 2013, Rep. Ken Calvert (R-CA) introduced a similar bill, H.R. 994, the “ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act of 2013.”

Pool Safety and Accessibility for Everyone (Pool SAFE Act)

On January 4, 2013, Rep. Mick Mulvaney (R-SC) introduced H.R. 203, the “Pool Safety and Accessibility for Everyone (Pool SAFE) Act.” The legislation would forbid a lawsuit from being brought against “a violation of the revised regulations for titles II or III of the American With Disabilities Act of 1990 regarding the requirements for places of public accommodation and commercial facilities to provide an accessible means of entry to pools (28 CFR 36.101 et. seq.) that occurred on or after January 31, 2013, and before the date that is one year after the date of enactment of this Act.” The bill would also suspend the Attorney General from investigating or initiating a compliance review of an alleged violation and would force any lawsuit against a place of public accommodation or commercial facility brought on or after March 15, 2012 to be dismissed.

The legislation would require that no later than 60 days after the date of enactment, the Attorney General revise section 36.304 of title 28, Code of Federal Regulations and “any other appropriate rules in part 36 of such title” so that a “a place of public accommodation or a commercial facility that has a pool and uses a portable pool lift on request shall be in compliance with the requirement under such rules to provide an accessible means of entry to such pool, even if installation of a permanent lift is readily achievable; and a place of public accommodation or a commercial facility that has more than one pool and uses one portable pool lift on request for all such pools shall be in compliance with the requirement under such rules to provide an accessible means of entry to each such pool.”

Social Networking

On February 6, 2013, Rep. Eliot Engel (D-NY) introduced H.R. 537, the “Social Networking Online Protection Act.” The Act would among other things, prohibit current or future potential employers from requiring a username, password, or other access to online content. Employers would not be permitted to demand such access to discipline, discriminate, or deny employment to individuals, nor punish them from refusing to volunteer the information.

On April 18, 2013, Rep. Ed Perlmutter (D-CO) introduced similar legislation, the “Password Protection Act” as an amendment to H.R. 624, the “Cyber Intelligence Sharing and Protection Act.” The amendment was defeated on a 189-224 vote.

May 1, 2014 12 On May 21, 2013, Rep. Ed Perlmutter (D-CO) introduced similar legislation, H.R. 2077, the “Password Protection Act.” On August 1, 2013, Sen. Richard Blumenthal (D-CT) introduced the companion bill in the Senate, S. 1426.

Electronic Life Safety and Security Systems Federal Background Check Act of 2013

On April 9, 2013, Rep. Blaine Luetkemeyer (R-MO) introduced H.R. 1441, the “Electronic Life Safety and Security Systems Federal Background Check Act of 2013.” The legislation would among other things, direct the Attorney General to establish a method for employers to request State and Federal fingerprint-based background checks for employees and prospective employees in the “electronic life safety and security systems industry” within 180 days after the date of enactment. The bill defines the term, “electronic life safety and security systems industry” to include “businesses that provide electronic life safety and security systems installation and central monitoring of fire and burglar alarm systems to public or private entities, including fire alarms, burglar alarms, closed-circuit TV, biometric systems, access control systems, personal emergency response systems, and other crime prevention systems.” Under the terms of the legislation, an employee or prospective employee would have an opportunity to be provided with their criminal record history and a detailed notification of their rights if the Attorney General determines that “an employee’s or prospective employee’s criminal history may bear on that employee’s or prospective employee’s fitness for employment.”

Bankruptcy Protection

On January 3, 2013, Rep. John Conyers (D-MI) introduced H.R. 100, “The Protecting Employees and Retirees in Business Bankruptcies Act of 2013.” The bill would double the maximum value of wage claims for each worker to $20,000; allow a second claim of up to $20,000 for benefits earned; eliminate the requirement that employees must earn wage and benefit claims within 180 days of the bankruptcy filing; create a new priority claim for the loss of value of workers’ pensions; establishes that a claim may be made for “any back pay or damages” related to wages and benefits awarded via a court proceeding or a proceeding of the National Labor Relations Board, including WARN Act damages; and creates a new priority administrative expense for workers’ collective severance pay. The legislation would also restrict the situations in which collective bargaining agreements can be rejected and tighten the criteria by which collective bargaining agreements can be amended.

Pregnant Workers Fairness Act

On May 14, 2013, Rep. Jerrold Nadler (D-NY) and Sen. Bob Casey (D-PA) introduced H.R. 1975 and S. 942, respectively, the “Pregnant Workers Fairness Act.” The legislation would make it an unlawful activity for an employer not to make “reasonable accommodations” to known workplace limitations related to pregnancy, childbirth, or related medical conditions unless doing so would impose an undue hardship on the business.

The legislation would forbid employers from denying employment opportunities to a job applicant or employee, if the denial is based on the need of the employer to make “reasonable accommodations” to known limitations related to the pregnancy, childbirth, or related medical conditions of the applicant or employee.

May 1, 2014 13 In addition, the bill would make it illegal to require a pregnant job applicant or employee to “accept an accommodation that such applicant or employee chooses not to accept.” The legislation would forbid employers from requiring a pregnant employee to take leave if another reasonable accommodation could be provided to the employee.

An employer who is found to violate this requirement would be subject to enforcement under Title VII of the Civil Rights Act.

Freedom from Discrimination in Credit Act of 2013

On June 13, 2013, Rep. Steve Cohen (D-TN) and Sen. Patty Murray (D-WA) introduced H.R. 2364, and S. 1159, respectively, the “Freedom from Discrimination in Credit Act of 2013.” The legislation would amend the Equal Credit Opportunity Act to prohibit discrimination on account of sexual orientation or gender identity when extending credit.

Civil Justice Tax Fairness Act of 2013

On June 26, 2013, Representative John Lewis (D-GA) and Sen. Ben Cardin (D-MD) introduced H.R. 2509 and S. 1781, respectively, the “Civil Justice Tax Fairness Act of 2013.” The bill would eliminate the taxation of noneconomic damages; and permit income averaging for back pay received in a lump sum for those who have suffered unlawful discrimination in the workplace or other violations of their employment rights.

American Jobs Act of 2013

On July 24, 2013, Rep. Frederica Wilson (D-FL) introduced H.R. 2821, the “American Jobs Act of 2013.” Among other things, the bill includes a section entitled, the “Fair Employment Opportunity Act of 2013.” The bill would bar an employer or employment agency from posting job notices which states that unemployed workers are not eligible for the position in nature, or discriminate against an individual who is currently unemployed during the hiring process.

Mixed Motive Claims under ADEA and Other Non Discrimination Laws

On July 31, 2013, Sens. Harkin (D-IA) and Grassley (R-IA) introduced S. 1391 and Rep. George Miller introduced the companion bill in the House, H.R. 2852, the “Protecting Older Workers Against Discrimination Act.” The bill would amend the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act, the Rehabilitation Act of 1973, and certain provisions of Title VII to permit mixed motive claims in a manner consistent with the 1991 amendments to Title VII. The central intent of the bill is to reverse the Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar (U.S. 2013) and Gross v. FBL Financial, 129 S. Ct. 2343 (2009), in which the Supreme Court held that mixed motive claims were not cognizable under the ADEA or Title VII.

Accurate Background Check Act of 2013

On August 2, 2013, Rep. Keith Ellison (D-MN) introduced H.R. 2999, the “Accurate Background Check Act of 2013.” The legislation would amend Section 534 of title 28, United

May 1, 2014 14 States Code to provide a mechanism for employees seeking a position with the federal government or federal contractor to ensure that “employment background checks are as accurate and complete as is reasonably possible” and to provide an avenue for an individual seeking employment to correct any errors.

On July 30, 2013, Rep. Bobby Scott (D-VA) introduced similar legislation, H.R. 2865, the “Fairness and Accuracy in Employment Background Checks Act of 2013.”

Fair Employment Opportunity Act of 2014

On January 29, 2014, Rep. Rosa DeLauro (D-CT) and Sen. Richard Blumenthal (D-CT) introduced H.R. 3972 and S. 1972, the “Fair Employment Opportunity Act of 2014.” The bill would prohibit employers and employment agencies from refusing to consider or offer employment to an individual who is unemployed, or to include language in any job advertisements or postings which states that unemployed individuals are not qualified. The bill creates an exception where “consideration by an employer or employment agency of an individual’s employment in a similar or related job for a period of time reasonably proximate to the hiring of such individual is a bona fide occupation qualification reasonably necessary to successful performance of the job that is being filled.”

Under the terms of the legislation, an employer who violated the law would be civilly liable to applicants for any compensation or monetary losses sustained by the applicant as a result of the violation, or a civil penalty of $1,000 per day, whichever is greater. Violators would also be subject to liquated damages, unless the employer or agency demonstrated that it acted in good faith. Violators may also be additionally liable for appropriate equitable relief, including punitive damages. In addition, an aggrieved applicant could file a complaint with the Department of Labor, which would have the authority to investigate and resolve the dispute, and also, sue for injunctive relief.

Fair Employment Protection Act

On March 13, 2014, Rep. George Miller (D-CA) and Sen. Tammy Baldwin (D-WI) introduced H.R. 4227 and S. 2133, respectively, the “Fair Employment Protection Act.” The bill is a response to the Supreme Court’s decision in Vance v. Ball State University, in which the Supreme Court ruled that a “supervisor” for vicarious liability purposes under Title VII of the 1964 Civil Rights Act is an employee authorized by an employer to take tangible employment actions against another worker, including the power to hire, promote, discipline, or fire. The legislation would amend Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act to clarify that for purposes of vicarious liability in harassment lawsuits, supervisors can include those without the authority to hire or fire.

USERRA

Military Family Leave Act

On March 21, 2013, Rep. Matt Cartwright (D-PA) introduced H. R. 1333, the “Military Family Leave Act of 2013.” The legislation would amend Title 38 of the United States Code to

May 1, 2014 15 permit an eligible employee to take up to two workweeks of leave during a 12-month period for a “family member”, defined as a “spouse, a son or daughter, or parent of an employee” if the family member is “in the uniformed services”, “receives notification of an impending call or order to active duty in support of a contingency operation”, or is “deployed in connection with a contingency operation.” Under the terms of the legislation, an employer may require that a request for leave be entitled to certification, such as a “copy of the notification, call, or order.”

Veterans

Veterans and Servicemembers Employment Rights and Housing Act of 2013

On July 11, 2013, Rep. Derek Kilmer (D-WA) and Sen. Richard Blumenthal (D-CT) introduced H.R. 2654 and S. 1281, respectively, the “Veterans and Servicemembers Employment Rights and Housing Act of 2013.” The legislation would among other things, give the Equal Employment Opportunity the authority to process claims brought by veterans and servicemembers who have alleged to have faced discrimination in hiring and employment practices based on their status of military service or veteran status as a protected class.

Family and Medical Leave Act (FMLA) and Other Leave Mandates

Expansion

On February 4, 2013, Sen. Jon Tester (D-MT) introduced S. 226, the “Parental Bereavement Act of 2013.” The legislation would amend the FMLA to permit parents grieving the death of their child to receive up to 12 weeks of FMLA job-protected leave. On February 5, 2013, Rep. Steve Israel (D-NY) introduced the companion bill, H.R. 515.

On April 25, 2013, Rep. Carolyn Maloney (D-NY) introduced H.R. 1751, the “Family and Medical Leave Inclusion Act.” The legislation would amend the FMLA by expanding coverage to include same-sex spouses, domestic partners, a child of a domestic partner, parents- in-law, adult child, sibling or a grandparent who has a serious health condition. On April 25, 2013, Sen. Durbin (D-IL) introduced the companion bill in the Senate, S. 846.

On February 5, 2014, Rep. Carolyn Maloney (D-NY) introduced H.R. 3999, the “Family and Medical Leave Enhancement Act of 2014.” The legislation lowers the threshold of companies covered under the FMLA from 50 to 25 employees. In addition, the bill would also provide up to 24 hours of unpaid leave during any 12-month period, for parents or grandparents to attend parent-teacher conferences or take their children, grandchildren or other family members to a routine medical or dental appointment. Eligible employees would be allowed up to four hours of such leave during any such 30-day period.

Healthy Families Act

On March 20, 2013, Rep. Rosa DeLauro (D-CT) and Sen. Tom Harkin (D-IA) introduced H.R. 1286 and S. 631, respectively, the “Healthy Families Act.” The bill would require employers with 15 or more employees to provide one hour of paid sick leave for every 30 hours

May 1, 2014 16 worked, to a maximum of 56 hours (seven days) per year to care for themselves and their family’s medical needs.

The legislation specifies that workers begin accruing sick leave on their first day of employment, and that they become eligible to use the accrued time after 60 days of employment. Employers with existing sick-leave policies that are equivalent to the requirements of the bill would not be required to permit an employee to earn additional paid sick time.

The leave could be used for an employee’s sickness or sickness of a child, parent, family member or any “other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” Under the terms of the legislation, employers would be allowed to require workers to provide certification by a health care provider of an employee’s illness if they are taking more than three consecutive days of leave.

In addition, the bill creates a right for victims of domestic violence to access this leave by specifying that leave may be used for “an absence resulting from domestic violence, sexual abuse, or stalking,” whether to obtain medical care, obtain “services from a victim services organization” or “to participate in related legal proceedings.”

On April 17, 2013, during mark-up of the Working Families Flexibility Act in the House Education & Workforce Committee, Rep. Joe Courtney (D-CA) offered the “Healthy Families Act” as a substitute amendment. Rep. Phil Roe (R-TN) introduced a point of order against the amendment and Rep. Kline ordered that the amendment was not germane and beyond the scope of the underlying bill. Rep. Andrews appealed the ruling of the point of order, and Republicans moved to table the appeal. On a party-line vote of 22-14, the appeal was tabled and the amendment was rejected.

Working Families Flexibility Act of 2013

On April 9, 2013, Rep. Martha Roby (R-AL) introduced H.R. 1406, the “Working Families Flexibility Act of 2013,” which would amend the FLSA to permit private employers to provide employees the choice of overtime wage paid out in the next paycheck as under current law, or overtime wages paid out in conjunction with paid time off taken later. This comp time option has been available to public sector employees since 1985. An employee may withdraw from a compensatory time off agreement with the employer at any time (except if the employee is part of a collective bargaining unit). However, if the employer wishes to withdraw from the program, a 30-day notice period would be required. Under the terms of the legislation, the program would expire five years after the date of enactment.

On April 11, 2013, the House Education and Workforce Subcommittee on Workforce Protections held a hearing on the merits of the bill.

On April 17, 2013, the House Education & Workforce Committee approved the legislation by a party-line vote of 23-14.

On May 7, 2013, the Chamber sent a Key vote letter, supporting the legislation. On May 8, 2013, the House passed the legislation by a vote of 223-204 with eight Republicans voting against the bill and three Democrats voting in favor of it.

May 1, 2014 17 On October 30, 2013, Sen. Mike Lee (R-UT) introduced the companion bill in the Senate, S. 1623.

Family Friendly and Workplace Flexibility Act of 2013

On October 30, 2013, Sen. Mitch McConnell (R-KY) introduced S. 1626, the “Family Friendly and Workplace Flexibility Act of 2013,” which would amend the FLSA to permit private employers to provide employees the choice of overtime wages paid out in the next paycheck as under current law, or flexible credit hours that may be used by the employee to reduce working hours in subsequent pay periods. This comp time option has been available to public sector employees since 1985. An employee may withdraw from a compensatory time off agreement or flexible credit hours with the employer at any time (except if the employee is part of a collective bargaining unit). However, if the employer wishes to withdraw from the program, a 30-day notice period would be required. Under the terms of the legislation, both of these programs would expire five years after the date of enactment.

Domestic Violence

On March 15, 2013, Rep. Lucille Roybal-Allard (D-CA) introduced H.R. 1229, the “Security and Financial Empowerment Act.” The Act would guarantee an employee’s time off from work under the FMLA or other available leave to obtain legal assistance and to attend court proceedings related to domestic violence. The bill would also provide assurance that an employee who is forced to leave a job due to abuse would be eligible for unemployment compensation, and would prohibit employers and insurance providers from basing decisions on an individual’s history as a victim of abuse.

Paid Vacation

On May 22, 2013, Rep. Alan Grayson (D-FL) introduced H.R. 2096, the “Paid Vacation Act.” The legislation would mandate that all companies with at least 100 employees provide at least one week of paid vacation each year after one year of employment. The law would apply to any worker who has been employed for at least twelve months and has at least 1,250 hours of service. Three years after enactment, companies with 100 or more employees would have to offer their employees two weeks of paid vacation, and employers with at least 50 employees would be required to provide one week off.

Time Off to Vote Act

On June 13, 2013, Rep. Matt Cartwight (D-PA) introduced H.R. 2350, the “Time Off to Vote Act.” The legislation would mandate an employer to give an employee 2 hours of paid leave on the day of any Federal election in order to vote and prohibit an employer from interfering with this right. If an employer violated the Act, the business “may” be subject up to a civil penalty not to exceed $10,000.”

May 1, 2014 18 Flexibility for Working Families Act

On June 27, 2013, Rep. Carolyn Maloney (D-NY) introduced H.R. 2559 and Sen. Bob Casey (D-PA) introduced S. 1248, respectively, the “Flexibility for Working Families Act.” The legislation would provide that whenever an employee requests a change in working conditions and the employer denies that request, the employee may pursue a series of meetings, inquiries led by federal government, administrative law hearings, and ultimately, federal court challenges. At each of these stages, the employee would be entitled to be accompanied by a representative, such as a lawyer, or union representative. The bill would apply to employers with 15 or more employees.

Family and Medical Insurance Leave (FAMILY) Act

On December 12, 2013, Rep. Rosa DeLauro (D-CT) and Sen. Kirsten Gillibrand (D-NY) introduced H.R. 3712 and S. 1810, respectively, the “Family and Medical Insurance Leave Act.” The legislation would permit workers to take paid time off to care for themselves or a family member with a serious health condition for 60 days.

The bill would establish the “Federal Family and Medical Leave Insurance Trust Fund.” According to the terms of the legislation, both the employer and employee would be taxed at 0.2 percent of wages received in any calendar year. Self-employed individuals would be taxed at 0.4 percent of income.

The legislation would establish a new Office of Paid Family and Medical Leave within the Social Security Administration to administer the benefits. The initial payment benefits would be capped at a minimum of $580 and a maximum of $4,000. After the first calendar year, the benefits would be indexed to the “national average wage index.”

In order to qualify for the paid leave benefits, an individual would have to file an application; plan to engage or be engaged in caregiving activities 90 days before the date on which an application is filed or within 30 days after the date; be “insured for disability insurance benefits;” and have received earned income from employment during 12 months prior to the filing of an application.

Employers that discriminate or discharge an individual “because the individual has applied for, indicated an intent to apply for, or received family and medical leave insurance benefits” would be liable for monetary damages, interest, liquated damages (except if the court finds the employer acted in good faith) and equitable relief, such as “employment, reinstatement, and promotion.”

Davis-Bacon Act

Expansion

On February 26, 2013, Sen. John Rockefeller (D-WV) introduced S. 387, the “American Infrastructure Investment Fund Act.” The legislation would create in the Department of Transportation, the “American Infrastructure Investment Fund.” The bill would “require all

May 1, 2014 19 laborers and mechanics employed by contractors and subcontractors” under the Fund to be paid Davis-Bacon prevailing wages.

On June 27, 2013, Rep. Rosa DeLauro (D-CA) introduced H.R. 2553, the “National Infrastructure Development Bank Act of 2013.” The legislation would create a wholly owned Government corporation, known as the National Infrastructure Bank. The bill would “require all laborers and mechanics employed by contractors and subcontractors directly by or assisted in whole or in part by and through the Bank” to be paid Davis-Bacon prevailing wages.

American Jobs Act of 2013

On July 24, 2013, Rep. Frederica Wilson (D-FL) introduced H.R. 2821, the “American Jobs Act of 2013.” Among other things, the legislation includes a clause that “all laborers and mechanics employed by contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal Government pursuant to this Act” shall be paid Davis-Bacon prevailing wages.

Reform

On February 1, 2013, Rep. Paul Gosar (R-AZ) introduced H.R. 448, the “Responsibility in Federal Contracting Act.” The bill would require that Davis-Bacon wages be determined by the Bureau of Labor Statistics using “surveys carried out by the Bureau of Labor Statistics that use proper random statistical sampling techniques.”

On April 18, 2013, Rep. Jeff Duncan (R-SC) introduced H.R. 1637, the “Adjusting Davis-Bacon for Inflation Act.” The bill would adjust the minimum threshold for coverage from the current rate of $2,000 to government contracts $50,000 or greater.

Repeal

On February 14, 2013, Rep. Virginia Foxx (R-NC) introduced H.R. 711, the “Highway Trust Fund Reform Act of 2013.” The legislation proposes to repeal Davis-Bacon Act wage requirements applicable to laborers and mechanics employed on Federal-aid highway and public transportation construction projects. The bill would take effect 31 days after enactment. The bill would not affect existing contracts, or contracts that were made pursuant to invitation for bids that were outstanding on the effective date.

On May 16, 2013, Rep. Steve King (R-IA) introduced H.R. 2013, the “Davis-Bacon Repeal Act.” The legislation proposes to repeal Davis-Bacon Act wage requirements and “any reference in any law” to Davis-Bacon prevailing wage rate requirements. The bill would not affect existing contracts, or contracts that were made pursuant to invitation for bids that were outstanding on the effective date.

To amend, title 49, United States Code, with respect to employee protective arrangements…

On June 12, 2013, Rep. Phil Gingrey (R-GA) introduced H.R. 2537. The bill would amend title 49, United States Code (labor standards) to strike the prevailing wage requirement and employee protective arrangements for transportation projects.

May 1, 2014 20 Appropriations

Joint Resolution for Continuing Resolution, 2014

On January 10, 2014, Rep. Harold Rogers (R-KY) introduced H.J. Res. 106, which would fund the federal government through January 18, 2013, at current funding levels. On January 14, 2014, the House passed the legislation by voice vote. On January 15, 2014, the Senate passed the bill by a vote of 86-14. On January 15, 2014, President Obama signed the bill into law.

Consolidated Appropriations Act, 2014

On January 13, 2014, the House Rules Committee unveiled the House Amendment to the Senate Amendment to the text of H.R. 3547, the “Consolidated Appropriations Act, 2014.” Of a $1.01 trillion omnibus appropriations package, the Labor Department would be funded at $12 billion.

The bill contains the following funding limitations with respect to Labor Department activities:

 Prohibits the use of funds to promulgate the “Definition of ‘fiduciary’” regulation.  Prohibits the use of funds to be “obligated or expended for the procurement of goods mined, produced, manufactured, or harvested or services rendered, in whole or in part, by forced or indentured child labor in industries and host countries already identified by the United States Department of Labor prior to enactment of this Act.”  Restricts the use of H-2B non-immigrants working in the seafood industry.

The bill would also fund the National Labor Relations Board at $274.2 million.

The legislation contains the following funding limitations with respect to the National Labor Relations Board:

 Prohibits the use of “any new administrative directive or regulation” with respect to electronic voting in representation elections conducted by the Board.

The bill would also fund the Equal Employment Opportunity Commission at $364 million.

On January 15, 2014, the House passed the legislation by a vote of 359-67. On January 16, 2014, the Senate passed the bill by a vote of 72-16. On January 17, 2014, President Obama signed the bill into law.

May 1, 2014 21 Anti-Arbitration

Arbitration Fairness Act of 2013

On May 7, 2013, Rep. Henry C. “Hank” Johnson (D-GA) and Sen. Al Franken (D-MN) introduced H.R. 1844 and S. 878, respectively, the “Arbitration Fairness Act of 2013.” The bill would reverse the Supreme Court decision in Circuit City Stores Inc v. Adams and reaffirmed in AT &T Mobility LLC v. Concepcion, which upheld employer policies requiring pre-dispute binding arbitration agreements as a condition of employment. The bill would amend the Federal Arbitration Act to make pre-dispute arbitration agreements for employment, consumer, franchise, or civil rights disputes unenforceable.

Investor Choice Act of 2013

On August 2, 2013, Rep. Keith Ellison (D-MN) introduced H.R. 2998, the “Investor Choice Act of 2013.” The bill would amend the Securities Exchange Act of 1934 and the Investment Advisers Act of 2013 to ban mandatory pre-dispute arbitration agreements by broker- dealers and investment advisers.

Servicemember Civil Relief Act (SCRA) Rights Protection Act of 2014

On February 18, 2014, Rep. Walter Jones Jr. introduced H.R. 4068, the “SCRA Rights Protection Act of 2014.” The legislation would require the consent of all parties in a contract to use the arbitration system, and permits servicemembers to bring class actions suits if their rights have been violated under the terms of the Act.

Fair Labor Standards Act (FLSA) Issues

Original Living American Wage Act

On January 14, 2013, Rep. Al Green (D-TX) introduced H.R. 229, the “Original Living American Wage Act.” The legislation would amend the Fair Labor Standards Act to provide for the calculation of the minimum wage by the Secretary of Labor, “no later than June 1, 2013, and once every four years thereafter” based on “an amount that is 15 percent higher than the Federal Poverty threshold for a family of two, with one child under the age of 18, and living in the 48 contiguous States, as determined by the Census Bureau.”

WAGES Act

On February 13, 2013, Rep. Donna Edwards (D-MD) introduced H.R. 650, the “Working for Adequate Gains for Employment in Services (WAGES) Act” that would establish a base minimum wage for tipped employees. The bill proposes amending the Fair Labor Standards Act (FLSA) to increase the minimum wage tip credit from 50 percent of the minimum wage as of August 20, 1996 (or $2.13 per hour) to $3.75 per hour, effective three months after enactment and $5 per hour beginning one year after enactment. The bill also proposes indexing the trip credit to 70 percent of the minimum wage after the second year after enactment or no less than $5.50.

May 1, 2014 22 Driver Fatigue Prevention Act

On March 7, 2013, Sen. Charles Schumer (D-NY) introduced S. 487, the “Driver Fatigue Prevention Act.” The legislation would provide that over-the-road bus drivers are covered under the maximum hour requirements of the Fair Labor Standards Act.

Fair Wages for Workers with Disabilities Act of 2013

On February 26, 2013, Rep. Gregg Harper (R-MS) introduced H.R. 831, the “Fair Wages for Workers with Disabilities Act of 2013.” The bill would amend Section14(c) of the Fair Labor Standards Act, which permits employers to pay special wage certificates to disabled employees, by phasing out the program over a three-year period and prohibiting the Secretary of Labor from issuing special wage certificates to those not currently holding a certificate.

Catching Up to 1968 Act of 2013

On March 21, 2013, Rep. Alan Grayson (D-FL) introduced H.R. 1346, the “Catching Up to 1968 Act of 2013.” The legislation would amend the Fair Labor Standards Act (FLSA) to increase the minimum wage to $10.50 an hour 60 days after enactment, and beginning one year after the date the minimum wage is raised, index the wage to the rate of inflation. The bill would also amend the FLSA to establish a base minimum wage for tipped employees. The bill would amend the Fair Labor Standards Act (FLSA) to increase the minimum wage tip credit to 70 percent of the minimum wage, effective sixty days after enactment. The bill would also exempt those performing agricultural work if the employee is a member of the member’s immediately family. In addition, the legislation would eliminate the home health worker exemption under the FLSA.

Fair Minimum Wage Act of 2013

On March 5, 2013, Sen. Harkin (D-IA) introduced S. 460, the “Fair Minimum Wage Act of 2013.” The legislation would amend the Fair Labor Standards Act (FLSA) to increase the minimum wage to $8.20 an hour, beginning on the first day of the third month after the date of enactment, $9.15 the next year, and then increase to $10.10 the following year. Under the bill, the following year after the minimum wage increases to $10.10, the minimum wage would then be indexed to inflation.

With respect to tipped employees, the legislation amends the FLSA to increase the minimum wage to $3 per hour for the first year of enactment, and an additional 95 cents each year thereafter until the wage equals 70 percent of the federal minimum wage.

On March 6, 2013, Rep. George Miller (D-CA) introduced the companion bill in the House, H.R. 1010. On March 15, 2013, Rep. George Miller offered his bill as an amendment to H.R. 803, the SKILLS Act. The House rejected the amendment by a vote of 184-233 with six Democrats opposing the bill along with all Republicans.

On June 25, 2013, the Senate HELP Committee held a hearing entitled, “Building a Foundation of Fairness: 75 Years of the Federal Minimum Wage,” where the merits of the legislation was discussed.

May 1, 2014 23 On November 19, 2013, Sen. Harkin (D-IA) introduced S.1737, the “Minimum Wage Fairness Act.” The legislation is a modified version of S. 460, which would increase the minimum wage in three steps to $10.10 and amends the Fair Labor Standards Act for tipped wages until eventually the wage equals 70 percent of the federal minimum wage, and couples the minimum wage increase with an extension of tax breaks for small businesses.

On December 12, 2013, Rep. John Larson (D-CT) introduced H.R. 3746, also named the “Fair Minimum Wage Act of 2013.” The legislation would amend the Fair Labor Standards Act (FLSA) to increase the minimum wage to $8.50 an hour, beginning on the first day of the third month after the date of enactment, to $10 the next year, and the amount would increase to $11 the following year. Under the bill, the following year after the minimum wage increases to $11, the minimum wage would then be indexed to inflation. With respect to tipped employees, the legislation amends the FLSA to increase the minimum wage to $3 per hour for the first year of enactment, and an additional 95 cents each year thereafter until the wage equals 70 percent of the federal minimum wage. Under the terms of the legislation, the Secretary of Labor would be required to publish in the Federal Register and the website of the Department of Labor, a notice announcing the requested wage rate.

Minimum Wage Fairness Act

On April 8, 2014, Sen. Harkin (D-IA) introduced S. 2223, the “Minimum Wage Fairness Act.” The bill would increase the minimum wage in three phases until it reaches $10.10 and amends the Fair Labor Standards Act for tipped wages until eventually the wage equals 70 percent of the federal minimum wage, and provides for an extension of increased expensing limitations and treatment of certain real property as Section 179 property. On April 30, 2014, the Senate held a cloture vote on the motion to proceed to this bill.

“Insurance Adjuster” Exemption

On March 6, 2013, Rep. Jo Bonner (R-AL) introduced H.R. 1001. The bill would exempt “any employee employed in insurance claims adjusting” from the FLSA’s overtime requirements. These insurance adjusters would be exempt while performing specified insurance- claims work under particular conditions following a “major disaster,” including a natural catastrophe, hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought.

The exemption would apply only for a twenty-four month period following the major disaster. Each employee would have to receive an average weekly income of at least $591 per week for the period in which the work is performed. Among the duties falling within the exception would be interviewing insured, witnesses or physicians with relevant information; inspecting property damage; making recommendations about coverage, liability, or value; negotiating settlements; or making recommendations regarding litigation.

Employees of companies (or their affiliates, as defined in the exemption) that underwrite, sell, or market insurance would not be eligible. The legislation would make eligible only those brought in by independent companies that possess the necessary licenses, provide worker’s compensation, and make the required tax withholdings.

May 1, 2014 24 On September 25, 2013, Rep. Richard Hudson (R-NC) introduced a similar bill. H.R. 3179.

Supporting Working Moms Act of 2013

On May 9, 2013, Rep. Carolyn Maloney (D-NY) introduced H.R. 1941, the “Supporting Working Moms Act of 2013.” The bill would amend the FLSA to require employers to provide those individuals classified as non-exempt employees with reasonable break time to express breast milk during the workday after the birth of a child, including making reasonable efforts to provide a place, other than a bathroom, that is shielded from view from intrusion by co-workers and the public, and which may be used by an employee to express breast milk.

Children’s Act for Responsible Employment of 2013

On June 12, 2013, Rep. Lucille Roybal-Allard (D-CA) introduced H.R. 2342, the “Children’s Act for Responsible Employment of 2013.” The legislation would increase the civil penalties for violations of child labor to no less than $500 and no more than $15,000 for a violation of child labor laws, and impose new penalty requirements of no less than $15,000 and no more than $50,000 for each violation that “causes the serious injury, serious illness, or death of any employee under the age of 18 years” and doubles the violation for when the violation is “repeated or willful.” The bill would also impose an additional criminal penalty of up to five years or a fine, or both if any person repeatedly or willfully violates child labor laws, and these violations result in or contribute to death or “serious injury or illness.”

The bill would also outlaw children under the age of 18 from working in any occupation inconsistent with the worker protection standards for workers exposed to pesticides in part 170 of title 40, Code of Federal Regulations. The legislation would prescribe that the Secretary may issue the final rules to implement the provisions, and would take effect no later than 30 days after the date on which the final rules are published in the Federal Register.

Children’s Consignment Event Recognition Act of 2013

On September 25, 2013, Rep. Tim Griffin (R-AR) introduced H.R. 3173, the “Children’s Consignment Event Recognition Event Act of 2013.” The bill would amend Section 3(e) of the Fair Labor Standards Act to clarify that volunteers at a children’s consignment event are not considered to be an “employee” under the Fair Labor Standards Act.

Employees of companies (or their affiliates, as defined in the exemption) that underwrite, sell, or market insurance would not be eligible. The legislation would make eligible only those brought in by independent companies that possess the necessary licenses, provide worker’s- compensation, and make the required tax withholdings.

On November 6, 2013, Sen. John Boozman (R-AR) introduced the companion bill, S. 1656.

May 1, 2014 25 Notification of Your Eldercare Rights Act

On January 9, 2014, Rep. Matt Cartwright (D-PA) introduced H.R. 3828, the “Notification of Your Eldercare Rights Act.” The legislation would require “any provider” of domestic care services to give to their clients, a two-page disclosure form, which indicates in plain language whether or not the worker being provided is considered to be an “independent contractor” or an “employee” for purposes of the Fair Labor Standards Act of 1938. The form would disclose the “rights and legal liabilities of the customer with respect to any employee or independent contractor, including rights of action; the presence or lack of vicarious liability of the provider of domestic care services with respect to an employee or independent contractor; and any liability the customer might have with respect to keeping their property free from unreasonable risk of harm.” The two-page disclosure form would be drafted by the Secretary of Labor, in consultation with the Secretary of Health and Human Service. Under the terms of the legislation, any provider of domestic care services that fails to provide the disclosure to a “prospective customer” would be subject to a fine of up to $1,100 per violation and any person who “knowingly” fails to provide this information or has been previously assessed a civil penalty, would be subject up to a fine of up to $5,000 per violation.

Occupational Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA) Issues

OSHA/MSHA Reform

Protecting America’s Workers Act

On March 22, 2013, Sen. Patty Murray (D-WA) introduced S. 665, “The Protecting America’s Workers Act.” The bill would extend OSHA protections to federal, state and local government employees and others not currently covered, increase both civil and criminal penalties and adjust those amounts for inflation, expand whistleblower protections, create a right for employees and workplace accident victims to be heard during an investigation, and remove the requirement for a workplace death before criminal penalties can attach.

The legislation also would in criminal cases, replace the legal intent standard of “willful” with “knowing” (commonly used in environmental laws), thus expanding the possibility of criminal penalties; define an employer as an “officer or director,” meaning that criminal penalties could be brought against a wider range of individuals/officers of a business; provide for the abatement of hazardous conditions during the contest period for serious violations; afford expanded rights of family members of injured workers to participate in settlement negotiations; and create a formal mechanism for OSHA to oversee state-based plans and compel remedies.

On April 18, 2013, Rep. George Miller (D-CA) introduced his version of the bill in the House, H.R. 1648. Following a report by the Government Accountability Office (GAO), Rep. Miller’s legislation would give authority to OSHA to take over state-based OSHA plans.

May 1, 2014 26 Robert C. Byrd Mine and Workplace Safety and Health Act of 2013

On April 24, 2013, Sen. John Rockefeller (D-WV) introduced S. 805, the “Robert C. Byrd Mine and Workplace Safety and Health Act of 2013.”

The legislation would reform the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA). The legislative proposal includes provisions from the “Protecting America’s Workers Act” introduced in the House such as increased civil and criminal penalties, enhanced whistleblower protections, expanded rights of family members of injured workers to participate in settlement negotiations, and the abatement of hazardous conditions during the contest period for serious violations.

The bill would also make substantial changes to the operations of MSHA such as enabling MSHA to seek a court order to close an unsafe mine, authorizing it to subpoena documents and testimony, and requiring additional training for miners in unsafe mines. Both criminal and civil penalties would be increased, and the criteria for imposing patterns of violations sanctions would be revamped.

The legislation would increase whistleblower protection for miners, provide that miners do not lose pay if a mine is closed for safety purposes, and require that incoming miners be informed of a mine’s hazards during a pre-shift review. The bill would also require independent investigations by NIOSH of the most serious accidents, and increased rock dust standards to prevent coal dust explosions.

Robert C. Byrd Mine Safety Protection Act of 2013

On March 21, 2013, Rep. George Miller (D-CA) introduced H.R. 1373, the “Robert C. Byrd Mine Safety Protection Act of 2013.” The legislation would reform the Mine Safety and Health Administration (MSHA).

The bill would make substantial changes to the operations of MSHA such as enabling MSHA to seek a court order to close an unsafe mine, authorizing it to subpoena documents and testimony, and requiring additional training for miners in unsafe mines. Both criminal and civil penalties would be increased, and the criteria for imposing patterns of violations sanctions would be revamped.

The legislation would increase whistleblower protection for miners, provide that miners do not lose pay if a mine is closed for safety purposes, and require that incoming miners be informed of a mine’s hazards during a pre-shift review. The bill would also require independent investigations by NIOSH of the most serious accidents, and increased rock dust standards to prevent coal dust explosions. The bill would also allow immediate family members of victims of every mine disaster to name a representative to participate in government investigations of such disasters.

The bill would also authorize a safety training grant to cover mine rescue training under conditions that simulate a mine accident.

May 1, 2014 27 Burdensome Paperwork Reduction for Our Miners Act

On April 25, 2013, Rep. David McKinley (R-WV) introduced H.R. 1722, the “Burdensome Paperwork Reduction for Our Miners Act.” The legislation would require the Secretary of Labor, acting through the Director of the Division of the Coal Mine Workers’ Compensation and the Chief Information Officer of the Department of Labor, in consultation with the Director of the Office of Management and Budget, no later than 120 days after the date of enactment to “conduct a review of the forms related to obtaining workers’ compensation benefits under the Federal Black Lung Benefits Program to determine whether it is feasible to combine or reduce such forms in order to further the purposes of the Paperwork Reduction Act of 1995.” No later than one year after the date of enactment, the Secretary would be required to implement “any feasible combination or reduction of the forms” identified in the review. The bill also would call for an initial report (to be filed within 180 days) and final report (no later than one year) to be sent to Congress detailing any respective changes made to the form.

Black Lung Health Improvements Act of 2013

On July 31, 2013, Sen. John Rockefeller (D-WV) introduced S. 1416, the “Black Lung Health Improvements Act of 2013.” The bill would among other things, require the Secretary of Labor to “issue a final regulation lowering permissible exposure levels to respirable dust and updating sampling and testing procedures, in order to provide the maximum feasible protection from respirable dust, including coal and silica dust, that is achievable through environmental and engineering controls” six months after the date of enactment and no later than 5 years after the date of issuance of the final regulation and once every 5 years thereafter, reexamine the incidence of pneumoconiosis in miners and unless there is a decline, shall update the regulation”; establish a legal fee payment program for miners and their families; create new grants for research into the disease; and require the Government Accountability Office (GAO) to study ways to make the application process for Black Lung Disability claims easier for miners to navigate.

OSHA Issues

Record-Keeping

On January 4, 2013, Rep. Gene Green (D-TX) introduced H.R. 170, “to direct the Secretary of Labor to revise regulations concerning the recording and reporting of occupational injuries and illnesses under the Occupational Safety and Health Act of 1970.” The bill would “require site-controlling employers to keep a site log for all recordable injuries and illnesses occurring among all employees on the particular site, whether such employees are employed directly by the site-controlling employer or are employed by contractors or temporary help or employee leasing services.”

Combustible Dust

On February 14, 2013, Reps. George Miller (D-CA) and John Barrow (D-GA) introduced H.R. 691, the “Worker Protection Against Combustible Dust Explosions and Fires Act of 2013.” The bill would require OSHA to issue an interim final standard on combustible dust within one year after the date of enactment, followed by a proposed rule for “regulating

May 1, 2014 28 combustible dust explosions that includes the major elements contained in the interim final rule within 18 months and a final rule three years after the issuance of the proposed rule.” Under the terms of the legislation, the rules would have to provide protection as effective as the National Fire Protection Association’s standards that “apply to existing facilities; or call for source and dust emission control technologies, such as ventilation systems that capture fugitive dust, and enclosure of dust generating processes.”

In addition to the provisions of the NFPA standards, the bill would mandate standards that include requirements for hazard assessment; written programs that include hazardous dust inspection, testing, housekeeping, and control; engineering, administrative, and operating procedures for control of fugitive dust emission, and ignition sources; housekeeping controls for accumulation of combustible dust; explosion protection, employee participation in hazard assessment, and written safety and health information and training for employees.

Voluntary Protection Program Act

On February 13, 2013, Rep. Thomas Petri (R-WI) introduced H.R. 632, the “Voluntary Protection Program Act.”

The bill would replace the cooperative agreements and voluntary protection programs currently carried out by OSHA, with a new cooperative agreement and voluntary protection program, as authorized in the legislation. The bill would require the Secretary of Labor to enter into cooperative agreements with employers to encourage the establishment of comprehensive safety and health management systems that include “requirements for systematic assessment of hazards”; “comprehensive hazard prevention, mitigation; and control programs”; “active and meaningful management and employee participation in the voluntary protection program”; and “employee safety and health training.”

The Secretary of Labor would also establish and carry out a voluntary protection program to encourage excellence and recognize the achievement of excellence in both the technical and managerial protection of employees from occupational hazards. The voluntary protection program would include the following requirements: an employer would have to submit an application to the Secretary of Labor; representatives of the Secretary of Labor would possess the authority to conduct onsite visits; employers who participate in the program would share information about safety and health programs to employees; and such employers would be subject to periodic reevaluations.

The bill also authorizes the Assistant Secretary of Labor to “develop a documentation policy regarding information on follow-up actions taken by OSHA’s regional offices in response to the fatalities and serious injuries at worksites participating in the voluntary protection program”; “establish internal controls that ensure consistent compliance by the regional offices with the voluntary protection program policies of OSHA for conducting onsite reviews and monitoring injury and illness rates, to ensure that only qualified worksites participate in the program”; and “establish a system for monitoring the performance of the voluntary protection program by developing specific performance goals and measures for the program.” An employer site, which has been approved by the Secretary of Labor and elects to participate in the voluntary protection program, would be exempt from inspections or investigations and certain paperwork requirements to be determined, except the employer would still be subject to inspections,

May 1, 2014 29 investigations and certain paperwork requirements arising from employee complaints, fatalities, catastrophes, or significant toxic releases.

The legislation would require the Secretary of Labor to “establish and implement, by regulation, a program to increase participation by small businesses in the voluntary protection program through outreach and assistance initiatives and the development of program requirements that address the needs of small businesses.”

Ergonomics

On June 25, 2013, Rep. John Conyers (D-MI) introduced H.R. 2480, the “Nurse and Health Care Worker Protection Act of 2013,” which directs the Secretary of Labor to issue a new ergonomics regulation as it relates to nurses and medical lifting and in particular, mandating the use of mechanical lifts for patients, “to the greatest degree feasible.” Where the use of mechanical technology and devices is not feasible, the bill would mandate the “use of alternative controls and measures, including trained, designated lift teams, to minimize the risk of injury and health care workers resulting from the manual handling of patients.”

The bill would also create a right of private action allowing employees to sue their employer if they have been “discharged, discriminated or retaliated against” for asserting rights described in the bill. In addition, the bill would allow an employee to refuse an assignment if they believe that the employer has not complied with the standards required in the bill.

Contracting Preferences

Fighting for American Jobs Act of 2013

On May 8, 2013, Rep. Peter Visclosky (D-IL) introduced H.R. 1899, the “Fighting for American Jobs Act of 2013.” The legislation would impose a new recordkeeping requirement that would require employers receiving “contracts, grants, loans or loan guarantees” by a federal agency to report on the “number of individuals employed by the business enterprise in the United States; the number of individuals employed by the business enterprise outside the United States; and a description of the wages and benefits being provided to the employees of the business enterprise in the United States.” Beginning one year after the date of enactment, the employer would also have to provide a written certification that includes “the percentage of the workforce of the business enterprise employed in the United States that has been laid off or induced to resign, and the percentage of the total workforce of the business enterprise that has been laid off or induced to resign.” If the percentage of the total workforce in the United States that has been laid off or induced to resign is greater than the rest of the workforce, the employer would be blacklisted from receiving “any further assistance from the department or agency” and from “any other Federal department or agency.”

American Jobs Matter Act of 2013

On March 21, 2013, Rep, Cheri Bustos (D-IL) introduced H.R. 1332, the “American Jobs Matter Act of 2013.” The legislation would amend the Federal Property and Administrative Services Act of 1949 and title 10, United States Code to provide that in issuing a solicitation for

May 1, 2014 30 competitive proposal, an executive agency shall state in the solicitation that the offeror may submit information known as a “job impact statement” with the application, describing the effects on employment within the United States of the contract, if it is awarded to the offeror.

The “job impacts” statement may include the following information: “the number of jobs expected to be created in the United States, or the number of jobs retained that otherwise would be lost”; the “number of jobs created or retained in the United States by the subcontractors expected to be used by the offeror”; and a “guarantee from the offeror that jobs created or retained in the United States will not be moved outside of the United States after the award of the contract.” According to the bill, the contracting officer may consider the information in the jobs impact statement in the evaluation of the offer. The bill also states that “in any contract awarded to an offeror that submitted a jobs impact statement with its offer in response to the solicitation for proposals for the contract, the executive agency shall track the number of jobs created or retained during the performance of the contract. If the number of jobs that the agency estimates will be created significantly exceeds the number of jobs created or retained, then the agency may evaluate whether the contractor should be proposed for debarment.”

On June 27, 2013, Sen. Chris Murphy (D-CT) introduced the companion bill in the Senate, S. 1246.

Streamlining Claims Processing for Federal Contractors Employees Act

On July 19, 2013, Rep. Tim Walberg (R-MI) introduced H.R. 2747, the “Streamlining Claims Processing for Federal Contractors Employees Act.” The legislation would transfer authority from the Comptroller General to the Secretary of Labor relating to the processing of claims for the payment of workers who were not paid appropriate wages with respect to federal contractors. On September 10, 2013, the House passed the bill by a vote of 396-10.

On October 30, 2013, the Senate HELP Committee approved H.R. 2747 by voice vote. On November 5, 2013, the Senate cleared the bill by voice vote. On November 21, 2013, President Obama signed the bill into law.

Protecting Health Care Providers from Increased Administrative Burdens Act

On December 3, 2013, Rep. Tim Walberg (R-MI) introduced H.R. 3633, the “Protecting Health Care Providers from Increased Administrative Burdens Act.” The legislation would ensure that hospitals and doctors reimbursed through federal health care programs are not unilaterally designated contractors and subject to the Office of Federal Contract Compliance Programs dictates.

On December 4, 2013, the House Education & Workforce Subcommittee on Workforce Protections held an oversight hearing, “Examining Recent Actions by the Office of Federal Contract Compliance Programs,” and on March 13, 2014, the Subcommittee held a legislative hearing on the bill, where the merits of the bill were discussed.

May 1, 2014 31 Independent Contractor Classification

Payroll Fraud Prevention Act of 2013

On November 12, 2013, Sen. Bob Casey Jr. (D-PA) introduced S. 1687, “the Payroll Fraud Prevention Act of 2013.”

The “Payroll Fraud Prevention Act” would expand current FLSA recordkeeping requirements to all workers, including non-employees. Under the terms of the legislation, employers that misclassify employees would be subject to a civil penalty, not to exceed $1,100 per each employee or other individual who was the subject of such a violation. Repeating violators would be subject to a higher civil monetary payment amount of up to $5,000.

The bill requires employers to give the following notice to employees and non- employees: “Your rights to wage, hour, and other labor protections depend upon your proper classification as an employee or non-employee. If you have any questions or concerns about how you have been classified or suspect that you may have been misclassified, contact the U.S. Department of Labor.”

The bill requires that the Secretary of Labor, within 180 days of enactment, to establish a single webpage on the Labor Department’s website that “summarizes in plain language the rights of employees and non-employees under the Fair Labor Standards Act.”

The bill further requires states to investigate and audit employers who may be misclassifying employees, in order for those states to continue to receive federal unemployment insurance grants.

Lastly, the bill also requires DOL and the IRS to coordinate its efforts in investigating employee misclassification efforts.

On November 12, 2013, the Senate HELP’s Subcommittee on Employee and Workplace Safety held a hearing titled, “Payroll Fraud: Targeting Bad Actors Hurting Workers and Businesses”, where the merits of the legislation was discussed.

Fair Playing Field Act of 2013

On November 14, 2013, Sen. Sherrod Brown introduced S. 1706, the “Fair Playing Field Act of 2013.” Under this legislation, the moratorium of Internal Revenue Service guidance addressing worker classification would end, and the Treasury Department would be required to issue prospective guidance clarifying the employment status of individuals for federal employment tax purposes. The legislation would modify the law to eliminate the ability of firms to qualify for reduced penalties for failure to deduct and withhold income taxes and the employee’s share of payroll taxes if they cannot show there was a reasonable basis for misclassifying the worker. Anyone that entered into a contract with independent contractors on a regular and ongoing basis also would be required to provide a written statement to each independent contractor of the federal tax obligations of independent contractors, the labor and employment law protections that do not apply to independent contractors, and the right of the

May 1, 2014 32 independent contractor to seek a status determination from the IRS. The Treasury Department would be required to issue an annual report on worker misclassification.

On November 12, 2013, the Senate HELP’s Subcommittee on Employee and Workplace Safety held a hearing titled, “Payroll Fraud: Targeting Bad Actors Hurting Workers and Businesses”, where the merits of the legislation was discussed.

Workers’ Compensation

Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act

On May 15, 2013, Rep. David Reichert (R-WA) introduced H.R. 1982, the “Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2013.” The bill would improve the administrative process for Medicare secondary payer claims by reducing the threshold provisions below which workers compensation settlement agreements would be exempt; adding a cap on the “safe harbor” provision, and extending the number of days within which the Department of Health and Human Services would be required to provide notice of Medicare conditional payments.

May 1, 2014 33