Labor and Employment Alert June 2009
Benjamin L. Pratt; Brent C. Diefenderfer
Where does it stand?
Employee Free Choice Act (“Card Check”)
By: Benjamin L. Pratt
Shortly after President Obama was elected, we informed you of the pending legislation entitled the “Employee Free Choice Act”, also known as Card Check. Where does this Act stand today?
Since the election, we have heard from legislators as to their opposition and/or approval to the proposed legislation. In particular, Arlen Specter, a Pennsylvania Senator, indicated he was opposed to the Employee Free Choice Act (EFCA). Now that he has switched political parties to Democrat, his position is not as solid as the parties had once thought in the past.
The EFCA is legislation that will allow unions to be recognized based on a “card check” system instead of the current election process. The EFCA would also require binding arbitration on contract negotiations within one hundred-twenty (120) days of union recognition instead of the current practice of allowing both parties to negotiate until ratification. Numerous editorials as well as letters to the editor have been submitted by both sides outlining the pros and cons of this legislation.
Based on differing opinions, there have been attempts by a couple of organizations to find a compromise to the Employee Free Choice Act (EFCA). Most if not all opponents to the EFCA are not interested in looking at compromises.
Those compromises would not remove the EFCA but would actually put into place a different process than what is currently under law. Some of these compromises include: mail-in ballots, union access to employees during election campaigns, a “quicky election” to expedite the organizing, and extending the timelines for negotiations of a new collective bargaining agreement. All of these compromises do not hinder the objective of the EFCA, which is to remove the current election system that is in place. As a matter of fact, it diminishes the employer’s rights during the election process. At this time no compromise on the EFCA is acceptable to most business organizations. They maintain the position of not changing the existing legislation.
It appears that this legislation will be reintroduced prior to the summer recess of Congress and there is a possibility some form of the EFCA will be passed. We encourage our clients to contact their local Senators and Congressman to indicate their position on the EFCA. Look to CGA for updates should this act be passed.
Mandatory Paid Sick Leave
By Attorney Benjamin L. Pratt
Recently the Healthy Families Act of 2009 (HR 2460) was introduced into Congress. This legislation would impose mandatory paid sick days for employees. As written, this bill will supersede all paid time off (PTO) policies and even possibly employment collective bargaining agreements.
The legislation is proposing that employers would be required to provide up to fifty-six (56) hours of paid sick leave each year. Employers with more than fifteen (15) employees would be affected by the legislation. Workers would accrue paid sick leave at a rate of one hour per every thirty (30) hours of work, and could begin using the paid sick leave after sixty (60) days of employment. Additionally, the legislation states that unused sick leave would roll over into the next year, therefore allowing employees to accumulate sick leave.
Lastly, the legislation goes on to state that employers would not be permitted to ask for written documentation from a physician until after the employee has missed three (3) consecutive days.
It is evident from this law that Congress is trying to supersede the employers right of establishing benefits for its employees by mandating that employers provide paid sick leave. Currently, as the bill is written, there is no consideration for those employers that already provide some type of paid sick leave. It appears the legislation applies to all employees whether full-time or part-time because of the fact that the law states an employee will be paid for one hour for every thirty (30) hours of work, therefore indicating the inclusion of part-time employees.
In a current economic downturn, one of the major concerns for employers is the impact of operating costs associated with providing additional paid leave of absence, without any relief provided by the Government. Some groups are happy with this proposed legislation but the costs to the employer and the affect on hiring employees is undetermined. If enacted, this legislation will obviously be a cost factor for any employer with fifteen (15) or more employees. Employers should monitor the progress of this act and contact their local Senators and Congressman to inform them of their opinion of the legislation.
CGA Law Firm will monitor the progress of this legislation and update you as necessary.
Has “Comp time” arrived in the Private Sector? The “Family Friendly Workplace” Act
By Brent C. Diefenderfer, Esq.
Early this year, Congress reopened discussions into the “Family Friendly Workplace Act” (H.R. H.R. 6025), which, if passed, would amend the Fair Labor Standards Act (FLSA) and authorize private employers to provide compensatory (or "comp") time off in lieu of overtime pay. The public sector already has been using comp time for 20 years and is a very popular option with many employees. However, many private employers mistakenly believe they can implement similar policies in their own workplace. Unless the Family Friendly Workplace Act is passed into law, private employers that use comp time as compensation are violating the FLSA.
Hourly employees must be compensated at a rate of one and one-half times their regular rate of pay for any hours worked in excess of the standard 40 per week. However, under the new law, employees could elect to receive comp time in lieu of overtime payments. Unless the bill is passed, employers who implement their own flexible work schedule violate the FLSA and subject themselves to liability under the law. Unless the Family Friendly Workplace Act becomes law, private-sector employers have limited options when it comes to compensating employees with time off.
The Act includes strong protections for workers to ensure that no worker is forced to select “family time” over traditional cash wages for over time. The choice of whether and when to use “family time” would be made by the employee. Employees would be permitted to use their accrued comp time “within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the employer.” Employees can withdraw from a compensatory time agreement with an employer at any time. However, employers may not make participation in a “comp time” program a condition of employment. Employees may request in writing to be paid cash wages for any accrued, unused compensatory time. Employers must provide these cash wages within 30 days of the request. Employers are permitted to discontinue the comp time policy with 30 days notice to employees, unless a collective bargaining agreement provides otherwise.
The Act is an important piece of legislation that would revise the Fair Labor Standards Act for the first time since it was enacted in 1938. If passed, employees need to be made aware of their rights and employers aware of their obligations under the Act. For more information on Family Friendly Workplace Act and other employment law related topics, turn to CGA Law Firm’s experienced Labor & Employment Law Department.
E-Verify Update
The effective date of the final rule requiring certain federal contractors and subcontractors to use E-Verify has been delayed from May 21, 2009 until September 8, 2009. The rule will only affect Federal contracts awarded and solicitations issued after September 2009 that include a clause committing government contractors to use E-Verify. For information about how E-Verify works and federal contractor requirements under E-Verify, see www.uscis.gov.
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