A Different House for Employees and Organized Labor

"Job creation and American competitiveness" are the principles hailed by Congressman John Kline as "vital national priorities," as he contemplated the 2011 Republican majority in the House of Representatives and his Chairmanship of the re-named House Education and Workforce Committee (known in the last congressional session as the House Education and Labor Committee).

Stating that he favors fostering "an environment of certainty that will give families, businesses, and entrepreneurs the confidence to spend, hire, and invest," Chairman Kline said that the federal government "cannot legislate and regulate our way to job creation." Priorities identified for the Education and Workforce Committee in the 112th Congress include:

  • Giving employers the certainty, flexibility, and freedom to create jobs;
  • Conducting robust oversight of education and workforce programs across the federal government to protect students, families, workers, and retirees;
  • Modernizing and streamlining training programs to help job-seekers get back to work; and
  • Pursuing education reform that restores local control, empowers parents, lets teachers teach, and protects taxpayers.

Missing from the list of priorities are recent congressional staples, among them:

  • Employee Free Choice Act, which would have substantially altered such National Labor Relations Act cornerstones as secret ballot elections conducted in laboratory conditions; election campaigns in which employers could exercise a statutory right to express and disseminate views, arguments and opinions; and collective bargaining where neither a union nor an employer is required to agree to any proposal or make any concession.
  • Paycheck Fairness Act, which would have amended the Equal Pay Act by limiting bases of bona fide pay differentials between men and women to those that the employer can defend by demonstrating that they are job-related and consistent with business necessity — adding a remedy of uncapped compensatory and punitive damages.
  • Employment Non-Discrimination Act, which would have banned discrimination, and limitations, segregation, or classification of employees and applicants, on the basis of actual or perceived sexual orientation or gender identity.
  • Protecting Older Workers Against Discrimination Act, which would have amended the Age Discrimination in Employment Act to overturn the "but for" test, upheld by the U.S. Supreme Court in Gross v. FBL Financial Services, Inc. Under the proposed legislation, plaintiffs would carry their initial burden in age discrimination cases by demonstrating that:
    • an impermissible factor was a motivating factor for the practice complained of, even if other factors also motivated the practice, or
    • the practice complained of would not have occurred in the absence of an impermissible factor.
  • Employee Misclassification Prevention Act, which would have amended the Fair Labor Standards Act to require notice of status and rights as an employee or independent contractor, together with recordkeeping requirements for non-employees who perform labor or services for remuneration and a special penalty for misclassifying employees as non-employees — reinforced by a rebuttable presumption of employee status if the person making payments to the individual fails to keep records or provide notice.

A shift in congressional realities and priorities makes passage of certain legislation less likely. As a result, the extent to which the executive branch and administrative agencies might advance policy within permissible interpretive and rulemaking bounds could become increasingly important in 2011.