• Health Care Reform Delayed, Immigration Bill Quickly Passes the Senate, and Partisan Bills Abound
  • August 29, 2013 | Authors: Seth T. Ford; James "Jim" M. McCabe
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • With the administration pressing pause on major components of healthcare reform until 2015, many employers are breathing a sigh of relief, or catching their breath. While employers have welcomed the delay to healthcare reform, the administration is pressing forth on other fronts, particularly immigration. The mammoth immigration bill, reported in our last legislative update, passed the Senate on June 27, 2013. Once a bill that seemed too big to succeed, some polls now give it almost a 50% chance of passing the House. It may be time that employers give this bill a closer look, both for its potential benefits and increased oversight.

    Although there have been relatively few other noteworthy legislative developments since our last update, two highly partisan bills merit some consideration and are reviewed below. The first threatens to introduce the legal process into every employer’s scheduling decision, while the second would provide greater protection against the threat of unionization in the workforce. 


    CURRENT STATUS OF LAW: Federal laws protect time off from work due to (1) certain medical conditions of oneself or family members (the Family and Medical Leave Act) or (2) requests for an adjusted work schedule to accommodate a disability where the adjustment does not create an undue hardship for the employer (the Americans with Disabilities Act). However, apart from these protected reasons, employees do not generally have the right under federal law to request changes to their place or time of work or to file lawsuits associated with that request.

    WHAT WOULD CHANGE: On June 27, 2013, Democratic representatives of the House and Senate introduced identical versions of the Flexibility for Working Families Act. This Act would permit employees of covered employers (15 or more employees) to apply to their employer for a temporary or permanent change in the employee’s terms or conditions of employment if the change relates to:

    1. The number of hours the employee is required to work;
    2. The times when the employee is required to work or be on call for work;
    3. Where the employee is required to work; or
    4. The amount of notification the employee receives of work schedule assignments.

    Employees would only be permitted to apply for such a change once per year. In response to an application, an employer would be required to hold a meeting with the employee to discuss the application and issue a written decision to the employee regarding whether the application is granted, including documenting the reasons for any rejection with specific reference to one of a number of reasons identified in the statute. In addition, if the employer rejects the application, the employee is permitted the right to appeal that decision to another supervisor, who would then be required to provide written documentation to the employee of his or her acceptance or rejection of the appeal. Finally, at any meeting regarding the employee’s application, the employee would be permitted to have a representative present.

    The Act would make it unlawful for an employer to interfere with, restrain, or deny the exercise of any of these rights, or to retaliate against an employee for exercising these rights. The Secretary of Labor would be authorized to enforce and investigate any such claims.

    WHY YOU CARE: Such overreaching employment legislation hasn’t been introduced in quite some time. Certainly, this bill would create controversy in the workplace. An employee can appeal their supervisor’s decision to another supervisor. That appears destined to cause problems. Moreover, each decision must be issued by the supervisor in writing to the employee, who is permitted to have counsel present, with specific reference to the reasons identified by the regulations. Basically, this Act seeks to introduce the American legal process into day-to-day business decisions regarding the scheduling of employees. Last but not least, employers can be sued if they violate the requirements of the Act (or if an employee simply complains about your decision under the Act before you terminate them).

    LIKELIHOOD OF BECOMING LAW: Not likely, thank goodness.


    CURRENT STATUS OF LAW: Under a new test set forth in the NLRB’s Specialty Healthcare decision, issued on April 30, 2011, it is now much easier for smaller units of workers to be considered appropriate bargaining units. In particular, under this test, in order to demonstrate that a bargaining unit is inappropriate, an employer will be required to prove that the excluded employees share "an overwhelming community of interest."

    One year after the Specialty Healthcare decision, on April 30, 2012, the NLRB published amendments to election rules that permit what some have termed "quickie elections" by permitting an election to occur in less than 25 days. Prior to these amendments, an election could not occur sooner than 25 days after the petition for representation was filed, which gave employers valuable time to present their position on union representation and to challenge the appropriateness of the bargaining unit.

    WHAT WOULD CHANGE: This bill is another attempt by Republicans to "undo" the effects of the NLRB’s Specialty Healthcare decision and quickie election rules. This bill would require the NLRB, "prior to an election," to determine the appropriate bargaining unit and, through consideration of a number of factors, is designed to prevent the smaller bargaining units permitted by the Specialty Healthcare decision. Practically speaking, such a requirement would likely slow or halt the election process.

    WHY YOU CARE: When a union targets your business, employers want to slow down or stop the election process. This bill would help to do that.

    LIKELIHOOD OF BECOMING LAW: There is little chance this bill will make it out of the Democrat-controlled Senate.