A Modified EFCA Proposal

At the September AFL-CIO convention, Sen. Arlen Specter (D-Pa.) announced that he and a small group of others in the Senate had drafted a modified Employee Free Choice Act proposal. In making the announcement, Senator Specter said that he was confident his draft would enjoy the support of the sixty senators necessary to break a filibuster. He predicts the bill will pass before the end of the calendar year.

Senator Specter's proposal would abandon the highly controversial "card check" provision, which would allow the certification of unions based on a sufficient number of signed authorization cards. Indeed, Senator Specter acknowledged that no bill eliminating a secret ballot election foreseeably could be passed. The modified proposal instead would mandate fast union representation elections. Senator specter did not specify how quickly the elections would take place under the proposal, but often repeated speculations pegs the timeframe at five to ten days after a union files a certification petition. (Currently, NLRB supervised elections typically are held some forty days after the petition is filed.)

The proposal would allow outside union organizers greater access to meet with employees at work during the election period. This is an opportunity that, in virtually all cases at the moment, unions do not currently enjoy.

The proposal retains from earlier EFCA proposals the requirement for binding interest arbitration if the employer and union fail to reach an agreement on a first contract. Specifically, Senator Specter said the bill would require so-called "baseball style" arbitration, which would require arbitrators to select either the employer's or union's last, best contract offer - essentially, an all or nothing hammer over the heads of the parties.

Lastly, the proposal also would retain from the current version of the EFCA the enhanced sanctions against employers for unfair labor practices committed during the organizing and negotiating periods. This would include triple back pay awards and fines.

Notably, following Senator Specter's announcement, incoming AFL-CIO President Richard Trumka said that the long-desired "card check" proposal remained an important part of the labor federation's legislative goals, and that the AFL-CIO had not agreed to any compromise on this point. At this juncture the success of any EFCA proposal remains virtually dependent upon whether supporters can muster the sixty votes needed to end a Senate filibuster and pass the bill.

Posted by Thamer E. "Chip" Temple III

Mandatory E-Verify Participation Put On Hold

Under a final rule issued November 13, 2008, the United States government (specifically, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council) amended federal procurement regulations to require federal contractors to verify worker employment eligibility through the Department of Homeland Security's E-Verify system. This final rule was the result of an executive order that President Bush issued last year mandating use of the system to address, in part, the problem of employment of illegal aliens.

The new rule requires government contractor employers to use E-Verify to determine the eligibility of all new hires and to confirm the eligibility of all existing employees working on federal contracts. Prior to this rule, use of the E-Verify system has been voluntary.

Many groups, including the Society for Human Resources Management, the U.S. Chamber of Commerce, and the American Council on International Personnel, questioned the mandatory imposition of a voluntary process. They claim the government exceeded its authority in requiring participation. Other groups, such as the Center for Immigration studies, commended expansion of the E-Verify system as an important way to reduce the illegal labor pool.

The final rule was to take effect on January 15, 2009. As a result of a lawsuit filed in a Maryland federal court challenging the propriety of the new rule, the government initially agreed in early January to delay the rule's implementation until February 20th. The government now has agreed to delay implementation until at least May 21st in order to allow the new Obama Administration an opportunity to review the rule and consider the broad range of options. The pending lawsuit will remain on the court's docket, but by agreement court proceedings will be suspended for the time being.

At this point, it is uncertain whether the regulation will be implemented later, if at all. In the meantime, federal contractors are relieved of the immediate obligation to comply, but they may voluntarily participate in the system.

Posted by Thamer E. "Chip" Temple, III

Featured Legal Commentator

Chip Temple will be the featured legal commentator at Managed Benefits, Inc.'s comprehensive course on the new Family and Medical Leave Act (FMLA) regulations. For more information on the course, contact Managed Benefits, Inc. at bworthington@managedbenefits.com.

Posted by: Thamer E. "Chip" Temple, III