United States: Paycheck Fairness Act Advances (Beltway Buzz, March 1, 2019)

Paycheck Fairness Act Advances. On February 26, 2019, the U.S. House Committee on Education and Labor voted, along party lines, to approve the Paycheck Fairness Act (PFA). Republican amendments to limit attorneys' fees and to strike the pay data collection provisions of the bill were not adopted. As a reminder, the PFA would amend the Equal Pay Act of 1963 by replacing the "factor other than sex" defense with a "bona fide factor other than sex" defense that must be "job-related" and "consistent with business necessity"; would provide for uncapped compensatory and punitive damages; would require the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs to develop mechanisms for the collection of employee compensation data from employers; and would enact prohibitions on the use of, or inquiry into, job applicants' pay histories. The next stop for the bill will be the House floor.

OSHA Reporting Due Date. The Buzz recently wrote about the Occupational Safety and Health Administration's (OSHA) changes to its 2016 injury and illness recording regulation that eliminated the requirement for employers to electronically submit Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report). However, the recent changes left intact the requirement that covered employers file Form 300A (Summary of Work-Related Injuries and Illnesses). The deadline for filing Form 300A for calendar year 2018 is March 2, 2019.

Workplace Violence. There was a congressional hearing on February 27, 2019, that garnered quite a bit of media attention. Of course, we are talking about the U.S. House Subcommittee on Workforce Protections hearing entitled Caring for Our Caregivers: Protecting Health Care and Social Service Workers from Workplace Violence. All joking aside, workplace violence is obviously a very serious matter for employees and employers alike, particularly in healthcare and social assistance settings. So much so that OSHA is in the early stages of developing a standard aimed at preventing workplace violence in these settings. The recently introduced Workplace Violence Prevention for Health Care and Social Service Workers Act (H.R. 1309) would dramatically accelerate this process by requiring OSHA to issue an interim workplace violence prevention standard covering these industries within one year of its enactment. Republicans on the committee acknowledged the need for a standard but expressed concern that the bill would undercut the ongoing rulemaking process. 

Nominees Advance. There were some developments this week on the nominations front, to wit:

  • On February 27, 2019, the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) advanced the nominations of Cheryl Stanton (nominated to be administrator of the U.S. Department of Labor's Wage and Hour Division), Scott A. Mugno (nominated to be assistant secretary of labor for OSHA), and Janet Dhillon (nominated to be a member of the EEOC). Of course, this has happened before (multiple times) for these nominees. They will now join the still-lengthy queue of nominees awaiting confirmation on the Senate floor.
  • The Senate HELP Committee also advanced the nominations of Marco M. Rajkovich Jr., William I. Althen, and Arthur R. Traynor III to be members of the Federal Mine Safety and Health Review Commission. They, too, will have to wait in line.
  • Apropos of this nominee bottleneck on the Senate floor, Politico is reporting that Senate Republicans are on the verge of making procedural changes that would dramatically limit the debate time allotted for most nominees. If this change is made, it will likely have the effect of speeding up that long queue we mentioned above. However, like any other change to existing rules or precedent, there is always the chance that this move could backfire when the political winds blow differently.

Arbitration News. Readers of the Buzz know that arbitration is a hot button policy issue these days. Thus, it is perhaps no surprise that, on February 28, 2019, Senator Richard Blumenthal (D-CT), Representative Hank Johnson (D-GA), Representative Jerry Nadler (D-NY), and Representative Bobby Scott (D-VA) announced that they will introduce the Forced Arbitration Injustice Repeal (FAIR) Act. The FAIR Act would ban arbitration in both consumer and employment contracts. There are no original Republican cosponsors, but previous bills that limited (but not banned) arbitration received some bipartisan support, so the Buzz will be watching this bill closely.

GC Memo on Non-Member Rights. National Labor Relations Board General Counsel Peter Robb recently issued a memorandum (it is dated February 22, 2019, but was only made public this week) relating to compulsory union dues deductions and dues checkoff obligations. In the memorandum, Robb encourages the Board to issue a decision that would require labor unions to be more transparent with regard to the initial notice it must provide to employees subject to a union security clause of their statutory right to refrain from joining the union. The memorandum further addresses instances in which limitations on employees' abilities to revoke their dues deduction authorizations are unlawful. Employers should pay particular attention to this portion of the memorandum because they are doing the deducting and remitting and may be liable in certain situations. 

Revel in History. February 25, 2019, marked the 149th anniversary of the swearing in of Hiram Revels as the first African American senator and member of Congress. In 1870, Revels—then an educator and minister—was elected overwhelmingly by the Mississippi state legislature to serve the remainder of the term that was vacated in 1861 when Mississippi seceded. According to a contemporary account in the New York Times, "[t]here was not an inch of standing or sitting room in the galleries" when Revels was sworn in, as Southern Democrats erroneously argued that Revels had become a U.S. citizen only after the passage of the Civil Rights Act of 1866 and therefore did not meet the citizenship requirements to be a senator. Revels served until March of 1871, whereupon he returned to Mississippi. His successor in the Senate, James L. Alcorn, later appointed Revels as the first president of the eponymously named Alcorn University, now known as Alcorn State University (alma mater of Medgar Evers, Alex Haley, and Steve McNair, among others).

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