Wyatt Employment Law Report

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House Passes Comp Time Law

 By Edwin S. Hopson

On May 8, 2013, the U.S. House of Representatives passed the Working Families Flexibility Act of 2013 (H.R. 1406), a law that would amend the Fair Labor Standards Act of 1938 to give employees the opportunity to accrue paid time off or “comp time” for working overtime hours in lieu of receiving overtime pay.

The bill provides as follows:

  • Allows employers to offer employees a choice between cash wages and accruing comp time for overtime hours worked during a workweek.
  • Protects employees by requiring the employer and the employee to complete a written agreement to use comp time, entered into knowingly and voluntarily by the employee. If the employee is represented by a labor organization, the agreement to take comp time must be negotiated as part of the union contract.
  • Retains all existing employee protections in current law, including how overtime pay is calculated.
  • Allows employees to accrue up to 160 hours of comp time each year.  An employer would be required to pay cash wages for any unused time at the end of the year. Workers would be free to cash out their accrued comp time whenever they choose to do so.
  • Requires the nonpartisan Government Accountability Office to report to Congress on the extent private-sector employers and employees are using comp time, and the number of complaints filed with and enforcement actions taken by the U.S. Department of Labor.

 The measure is expected to face stiff opposition in the Senate.

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Joint Resolutions Proposed in the House and Senate to Overrule NLRB’s New Election Rules

By Edwin S. Hopson

On February 16, 2012, the U.S. House Education and the Workforce Chairman John Kline (R-MN), joined by Rep. Phil Gingrey (R-GA) and Rep. Phil Roe (R-TN), introduced H.J. Resolution 103 under the Congressional Review Act (5 U.S.C. §§801-808) that would block the National Labor Relations Board’s December 21, 2011, new representation election rules intended to speed up and streamline the Board’s union representation election process, to be effective April 30, 2012. Sixty-five House members as of now support the resolution.

A companion resolution (S. J. Res. 63) was also introduced in the U. S. Senate by Senator Mike Enzi (R-WY) and Senator Johnny Isakson (R-GA).  S. J. Res. 63 has the support so far from 44 Senators.

The December 2011 rules were only a portion of proposed changes announced in June, 2011.  Since December, NLRB Chairman Pearce has indicated he intended to bring up for consideration later this year the remaining proposals designed to speed up the election process. 

At a press conference on February 16, Chairman Kline stated: “With the addition of these three non-recess ‘recess’ appointees [to the NLRB], it’s very clear to us that Chairman Pearce from the NLRB intends to go back and pick up some of those provisions that were left out from the rule passed last year. We are very concerned about this board and its agenda. We’re pleased the Senate is going forward with this resolution of disapproval and we look forward to being right there with them.”

The Congressional Review Act was enacted by the Congress as a part of the Contract with America Advancement Act of 1996 and is also known as the Small Business Regulatory Enforcement Fairness Act of 1996. The law permits the Congress to review, on an expedited basis, new federal regulations issued by government agencies and, by passage of a joint resolution, overrule the regulations.  It would appear that the Republicans in the House may be able to pass the resolution, but it would seem more doubtful in the Democrat-controlled Senate.

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U.S. House Seeks to Block President Obama’s Ability to Recess Appoint Officials

By Edwin S. Hopson

In July, 2011, Congressman Jeff Landry, a Republican from Louisiana, announced that he was part of an effort in the U.S. House of Representatives intent on keeping the House of Representatives in session continuously in order to prevent the U.S. Senate from going into recess without the House’s consent.  The purpose is to prevent President Obama from issuing recess appointments.  The last recess appointment, according to Representative Landry, was Craig Becker to the National Labor Relation Board.  In a July 1, 2011, press release, Landry stated:

“This morning – under the instruction of Speaker Boehner, Leader Cantor, and Whip McCarthy – I presided over a pro forma session in the United States House of Representatives, preventing Congress from going into recess and blocking President Obama from issuing recess appointments. * * *  Under Article 1, Section 5 of the Constitution, the House of Representatives can prevent the Senate from recessing by withholding its consent.  Simply put:  we do so by voting down, or not considering, a Senate adjournment resolution.  And when we do so, we block the Administration’s ability to make recess appointments.”

Congressman Landry, in his press release, stated that he is leading a coalition of 77 freshmen Congressmen requesting that the House Republican leadership take measures to prevent any recess appointment by President Obama for the remainder of the 112th Congress.

The impact of this action could be a cessation of the National Labor Relations Board’s ability to issue decisions after December 31, 2011, when Member Becker’s recess appointment expires.  At that time it will be down to two members.  Under the U.S. Supreme Court’s decision in New Process Steel v. National Labor Relations Board, 130 S. Ct. 2635 (2010), the NLRB lacks the power under the National Labor Relations Act to issue decisions once the five member board gets down to less than three members.

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House of Representatives Passes Bill to Prevent NLRB From Ordering Relocation of Work

By Edwin S. Hopson

On July 19, 2011, in response to the NLRB’s issuance of complaint against Boeing arising out of Boeing’s decision to build a number of its new 787 Dreamliners in a non-union plant in South Carolina, a bill entitled The Protecting Jobs From Government Interference Act, H.R.2587, was introduced in the U.S. House of Representatives by Representative Tim Scott (R-SC).  In part, it would amend the National Labor Relations Act so as to prohibit the NLRB from ordering any employer to relocate, shutdown or transfer employment under any circumstances, and would apply to all cases not yet fully adjudicated before the Board.

H.R. 2587 on September 15, 2011, passed the House of Representatives with a vote of 238 to 186.  Those voting in favor included some 7 Democratic members of the House.  Eight Republicans voted against the bill. Passage of this measure in the Democratically controlled Senate is doubtful at this time.