NAICU Washington Update

111th Congress Gets Early Start on Labor Legislation

January 16, 2009

With the election of Barack Obama and solid Democratic majorities in the House and Senate, we expect labor issues to have a prominent place on the agenda of the 111th Congress. Certainly, they have received early attention.

Among the first bills approved by the House are the Lilly Ledbetter Fair Pay Act (H.R. 11) and the Paycheck Fairness Act (H.R. 12). The votes on both measures broke largely along party lines, with nearly all Democrats in support and nearly all Republicans in opposition.

The Lilly Ledbetter Fair Pay Act expands the time period for filing a charge of pay discrimination by restarting the clock each time compensation is paid. The measure responds to a Supreme Court ruling that a tire plant employee, Lilly Ledbetter, had not filed her complaint within the 180-day time period provided in the law. Also on January 9, the day the bill was approved, the House approved the Paycheck Fairness Act, a much broader measure aimed at eliminating sex discrimination in wage payment. The two measures were then combined and sent to the Senate as a single bill.

While the Senate won't consider the Paycheck Fairness Act at this time, it has begun consideration of a Senate companion bill (S. 181) to the Lilly Ledbetter Fair Pay Act, introduced by Sen. Barbara Mikulski (D-Md.). By a vote of 72-23, the Senate invoked cloture on the motion to proceed to that measure. A substitute amendment to the bill, proposed by Sen. Kay Bailey Hutchison (R-Texas), is pending. Final action on S. 181 is expected the week of January 19.

The most hotly contested measure on the labor agenda is the Employee Free Choice Act, more commonly known as the "card check" bill. It would permit unionization in a workplace if a majority simply signed authorization cards for the union, rather than requiring a secret ballot election. This measure was approved by the House during the 110th Congress on a largely party-line vote, but didn't survive a filibuster in the Senate. Both sides have conducted aggressive lobbying campaigns over the past several months, but no action has yet been scheduled in the new Congress.

The proposal with the most direct impact on private colleges is the Teaching and Research Assistant College Bargaining Rights Act [see WIR, 4/28/08]. This measure would specify that graduate teaching and research assistants at private colleges and universities are employees under the terms of the National Labor Relations Act. This legislation was introduced by Rep. George Miller (D-Calif.) and Sen. Ted Kennedy (D-Mass.) In the last Congress. They are expected to re-introduce the legislation in the 111th, but haven't yet done that.

This legislation would effectively overturn the 2004 Brown University ruling of the National Labor Relations Board (NLRB). In that case, the NLRB ruled that graduate teaching and research assistants are students, not employees, overturning a 2000 board ruling that graduate student at New York University could unionize. In turn, the NYU ruling had overturned precedent dating back to 1974, so the Brown decision brought the issue full circle. NAICU joined the American Council on Education in filing a brief on behalf of Brown, and continues to believe that the work of graduate assistants is a fundamental aspect of their role as students, not as employees.

Graduate student employment issues at public institutions are subject to state labor laws, so both the the pending legislation and the earlier NLRB decisions affect only private institutions. (See WIR, 7/27/04)

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