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WLF Web Seminar Explores New General Personal Jurisdiction Arguments under SCOTUS’s “Bauman” Ruling

WLF Legal Pulse - 6 hours 4 min ago
Litigating away from “Home”: General Personal Jurisdiction One Year after the Supreme Court’s Daimler AG v. Bauman Decision Thomas H. Dupree, Jr., a partner with Gibson, Dunn & Crutcher LLP who argued Bauman for Daimler AG James M. Beck, Of Counsel with Reed Smith LLP Mr. Beck utilized a PowerPoint slide presentation. The archive of […]
Categories: Latest News

Kline, Alexander, Johnson Call on NLRB General Counsel to Explain Pursuit of Joint-Employer Cases

Education & the Workforce Committee - Thu, 03/05/2015 - 2:30pm
Rep. John Kline (R-MN), chairman of the House Education and the Workforce Committee, Senator Lamar Alexander (R-TN), chairman of the Senate labor committee, and Senator Ron Johnson (R-WI), chairman of the Senate homeland security and governmental affairs committee, today called on National Labor Relations Board General Counsel Richard Griffin to provide an explanation of his recent comments on his pursuit of labor violation cases against franchisors as joint employers under the National Labor Relations Act, despite admission that the legal grounds for doing so may be flawed.

In a letter to Griffin, they write, “Notwithstanding the concerns we have if the Board does expand its joint-employer standard, we are troubled that you appear to be pursuing joint-employer cases knowing your legal theory is problematic.”

“[Griffin] stated, ‘in that area we have a problem, legally, for our theory’ to hold franchisors as joint employers. Despite this admission, only months later on December 19, 2014, [Griffin] issued complaints against a franchisor as a joint employer.”

The full text of the letter is below:

Dear Mr. Griffin: 

We are writing with questions about recent comments you made in support of pursuing labor violations against franchisors as joint employers under the National Labor Relations Act (NLRA). Additionally, we have concerns that you intend to pursue labor violations in this manner despite your admission that the legal grounds for doing so may be flawed. 

The National Labor Relations Board (NLRB or Board) is currently evaluating whether to change the standard that determines whether an employer is a joint employer for purposes of collective bargaining and labor law violations under the NLRA. On June 26, 2014, you filed an amicus brief urging the Board to “abandon its existing joint-employer standard,” that has been in place for three decades, in favor of a “new standard” that takes “into account the economic and industrial realties of employment relationships.”

In the brief, you appeared to express frustration that the current joint-employer standard does not allow for meaningful collective bargaining in franchisor-franchisee relationships because franchisors are not at the bargaining table. You stated that the current standard “preclud[es] employees from exerting traditional economic pressure on a company that effectively controls many of their working conditions.” Accordingly, you asked the Board to adopt your view of the law which would effectively ensure franchisors must bargain with employees of the franchisee and are liable for labor violations. 

Notwithstanding the concerns we have if the Board does expand its joint-employer standard, we are troubled that you appear to be pursing joint-employer cases knowing your legal theory is problematic. On July 29, 2014, the NLRB announced that you had authorized complaints alleging violations of the NLRA against a franchisor as a joint employer. Then, on October 24, 2014, at a labor conference entitled, “Zealous Advocacy for Social Change,” you spoke about “law reform efforts” underway at the Board. During your presentation, you discussed the joint–employer issue and singled out franchisor-franchisee relationships. You stated, “in that area we have a problem, legally, for our theory” to hold franchisors as joint employers. Despite this admission, only months later on December 19, 2014, you issued complaints against a franchisor as a joint employer.

We are also concerned that your October 24 remarks pointed to research conducted by Dr. David Weil, Department of Labor Wage and Hour Division Administrator, that argues for an expansion of joint-employer relationships for purposes of liability in labor law. NLRB’s ex parte rules prohibit communications relevant to the merits of an unfair labor practice proceeding between the general counsel and third parties. Therefore, if you are communicating with Dr. Weil or other third parties about pending NLRB complaints it could be inappropriate.  

To better understand your comments and whether you are appropriately pursuing joint employer cases, please answer the following questions and provide the information requested by March 19, 2015. 
  1. Did any developments occur in the law between your comments on October 24, 2014, and the filing of complaints on December 19, 2014, that named a franchisor as a joint employer?
               
    • If not, please explain your comments made at the October 24, 2014, labor conference.
            
  2. Produce all documents and communications between the Office of General Counsel and the Board referring or relating to the joint employer standard from November 4, 2013, to present.
                       
  3. Produce all documents and communications between the Office of General Counsel and any other federal agency about the joint employer standard from November 4, 2013, to present.

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Committee Sends Inquiry on Fiduciary Rulemaking

Education & the Workforce Committee - Thu, 03/05/2015 - 10:30am

House Education and the Workforce Committee Chairman John Kline (R-MN) and Health, Employment, Labor, and Pensions Subcommittee Chairman Phil Roe (R-TN) have requested information regarding a pending regulatory proposal to expand the definition of fiduciary under the Employee Retirement Income Security Act (ERISA). The members are requesting by March 18, 2015, documents and communications related to the department’s consultation with the Securities and Exchange Commission as it worked to introduce a new proposal to redefine the fiduciary standard.

“The public has been assured repeatedly that close consultation between these two agencies was underway to avoid any regulatory confusion and inconsistencies,” said Chairman Kline. “However, recent statements by a member of the SEC raise serious doubts about whether meaningful consultation has taken place. This rulemaking will affect the retirement security of millions of Americans, and I hope the department has done more than simply pay lip service to good government on this very important issue.”

BACKGROUND: Since 2010, the Department of Labor has pursued a regulatory proposal that would vastly expand the long-held definition of fiduciary governing the conduct of financial professionals. An initial proposed rule was subsequently withdrawn after strong, bipartisan concerns were raised regarding the negative impact on Americans saving for retirement. Additional concerns have been raised about whether the department is sufficiently coordinating its efforts with the Securities and Exchange Commission, which is legally authorized under the Dodd-Frank financial services reform law to examine the standard of care for investment advisers and broker-dealers. As the members state in their letter:

It is clear coordination between SEC and DOL is vital to ensure a functioning regulatory framework; it is unfortunately far less clear that such coordination is occurring. We are especially disappointed and alarmed by Commissioner Gallagher’s allegations that no meaningful engagement has occurred …

This is inconsistent with public pronouncements from the administration. For example, in testimony before the Health, Employment, Labor, and Pensions Subcommittee, Assistant Secretary Borzi promised DOL, SEC, and others “are actively consulting with each other and coordinating our efforts.” This pledge was echoed in the press release withdrawing the initial rule. More recently, Assistant Secretary Borzi has publicly repeated this promise.

Concern over this coordination — or lack thereof — was so grave as to warrant Congressional action. On October 29, 2013, the House of Representatives passed H.R. 2374, the Retail Investor Protection Act, which required DOL to delay its rulemaking until after the SEC acts. The bill passed the House on a strong bipartisan basis.

In recognition of this concern, a revised notice of proposed rulemaking should not be issued until after Congress is satisfied sufficient coordination has occurred. So that we can better understand the coordination between DOL and SEC, please furnish all communications after September 19, 2011, between DOL and SEC regarding this rulemaking. In addition, please provide all documents and materials addressing how DOL has considered, adopted, or discarded any concerns raised by SEC as it revised its regulatory proposal.

To read the full letter, click here.

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By Treating Recusal Motions as a Game, Lawyers are Eroding Public Confidence in our Courts

WLF Legal Pulse - Wed, 03/04/2015 - 4:53pm
The meaning of “chutzpah” is often illustrated by pointing to the man who kills his parents and then throws himself on the mercy of the court because he is an orphan. The recent actions of a group of plaintiffs’ lawyers involved in a multi-billion dollar case before the Illinois Supreme Court exhibit a similar kind […]
Categories: Latest News

Kline, Ryan, Upton Respond to King v. Burwell Oral Arguments

Education & the Workforce Committee - Wed, 03/04/2015 - 11:30am

Chairmen John Kline (R-MN), Paul Ryan (R-WI), and Fred Upton (R-MI) responded to today’s Supreme Court oral arguments in the King v. Burwell case. The chairmen, who attended this morning’s oral arguments, are leading the House Republican working group to develop a plan to replace the president’s health care law over the long term and protect Americans affected by the decision in this case. Earlier this week they detailed some of their ideas to provide an off-ramp to the president’s health care law. 

We are here today because the Obama administration forced a flawed and partisan law on the American people. Its implementation has been one problem after another, and today’s case underscores just how far beyond the law the administration has gone to prop up this fatally flawed plan. The law is clear – and the Supreme Court should order the IRS to enforce the law as it is written. If it does, we will be ready to act. While the president insists he has no plan B, which would be malpractice if true, we are preparing a thoughtful solution that frees the American people both from the consequences of the administration’s illegal implementation, but also from this law’s many costly mandates. We will continue to work with our colleagues in the House and in the states on responsible policies that put the American people back in charge of their health care. There is a better way.  

Learn more about their plan here.

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Witnesses Support Congressional Effort to Block NLRB’s Ambush Election Rule

Education & the Workforce Committee - Wed, 03/04/2015 - 12:00am

The Subcommittee on Health, Employment, Labor, and Pensions held a legislative hearing today to examine H.J. Res 29, a measure to block the National Labor Relations Board’s (NLRB) unprecedented re-write of union election procedures. In December 2014, the NLRB finalized its ambush election rule, which significantly shortens the timeframe of union elections, obstructs workers’ right to a fair election debate, and violates employees’ privacy by granting union organizers greater access to their personal information. The House is expected to advance the resolution in the coming weeks.

During the hearing, members and witnesses discussed the urgent need for Congress to overturn a rule that will have devastating consequences for workers and their families.

“[The ambush election rule] severely cripples the right of each worker to make an informed decision,” said Rep. Bradley Byrne (R-AL). “Deciding whether or not to join a union is a deeply personal choice. The outcome of that choice will affect workers’ wages, benefits, and other employment concerns for years. Workers deserve an opportunity to get the facts and discuss these matters with friends, family members, coworkers, and yes, employers too. Under this administration, the National Labor Relations Board is determined to deny workers this fundamental right.”

Labor attorney and former NLRB staff member, Arnold Perl, echoed these concerns: “[Workers’] rights have been abandoned by the new rule. As a result of quickie elections, employees may not be able to hear all the facts they need to know about risks of unionization. To the detriment of employees, the new rule imposes built-in obstacles which prevent or impede reasoned and informed choices by employees.”

Perl also outlined how the board’s regulatory scheme “tramples on employees’ rights of privacy," noting, "employers are required to turn over employees’ personal email addresses, cell phone numbers, shift hours and locations, and job classifications, even if the employee says he or she does not want to be contacted.”

“The ambush election rules mandate a serious invasion of employees’ privacy,” testified Glenn Taubman with the National Right to Work Legal Foundation. “Once employees’ information is handed over, unions can spread this personal information to union officers, organizers, supporters inside the shop and out, and to the entire internet, if they choose. The board places no real restrictions or safeguards on how unions use of disseminate this sensitive personal information.”

The board’s ambush election rule is further proof it has abandoned any effort to serve as a fair and impartial referee of the law. Speaking on behalf of the Retail Industry Leaders Association, Roger King described the rules as “an unprecedented partisan policy initiative favoring organized labor” and warned it “will further erode its credibility as a neutral arbiter of labor relation issues in the workplace.”

Rep. Byrne concluded with the urgent need for congressional action: “I am hopeful … we will send to the president a resolution that reins in this activist board and rolls back this destructive regulatory scheme. The president will then have to decide whether he stands with Big Labor, or with the nation’s workers and job creators.”

To learn more about today’s hearing, read witness testimony, or to watch an archived webcast, visit www.edworkforce.house.gov/hearings.

# # #

Byrne Statement: Hearing on "H.J. Res. 29, Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the National Labor Relations Board relating to representation case procedures"

Education & the Workforce Committee - Wed, 03/04/2015 - 12:00am

We are here today to discuss House Joint Resolution 29, which provides for Congressional disapproval under the Congressional Review Act of the National Labor Relations Board’s recently released rule that would drastically affect long-standing policies governing union elections.

For those members who served on the committee in previous congresses, our discussion today may elicit a dreadful sense of déjà vu. That’s because for nearly four years, the Obama National Labor Relations Board has sought to radically alter long-standing policies governing union elections, and as the Board pursued this misguided effort, House Republicans, led by this committee, have consistently fought to defend the rights of America’s workers and job creators.

The stated purpose of the board’s rule is to shorten the time between the filing of a petition for a union election and the election date. The Board achieves this in a number of troubling ways, such as limiting the opportunity for a full and fair hearing of issues that may arise during the election proceedings and denying parties an opportunity to raise certain contested issues to the Board. The Board’s rule also grants union organizers unprecedented access to employees’ personal information.

These are by no means modest changes and they go far beyond simply “modernizing” the election process. In truth, the Board’s real goal is to dramatically tilt the outcome of elections in favor of union leaders by ambushing employers and workers without allowing them to fully understand their decision. The American people are on the losing end of the Board’s extreme culture of union favoritism.

The Board’s rule eviscerates the right of employers to speak freely to employees during an organizing campaign. Roughly 70 years ago, Congress amended the National Labor Relations Act to ensure employers have an opportunity to communicate with employees about union representation. Congress took this action not only to promote the voices of employers, but also to protect employee choice through a robust debate of important issues. The Board is overturning, by executive fiat, what Congress has expressly permitted by law.

The Board’s rule also severely cripples the right of each worker to make an informed decision. Deciding whether or not to join a union is a deeply personal choice. The outcome of that choice will affect workers’ wages, benefits, and other employment concerns for years. Workers deserve an opportunity to get the facts and discuss these matters with friends, family members, coworkers, and yes, employers too. Under this administration, the National Labor Relations Board is determined to deny workers this fundamental right.

Finally, adding insult to injury, the Board is placing the privacy and safety of America’s workers and their families in jeopardy. There is absolutely no reason why union organizers need employees’ phone numbers, email addresses, work schedules, and home addresses. Union coercion and intimidation is real and it is our responsibility to help stop it.

It is for these reasons this resolution is so urgently needed. In the past, Congress has tried offering a legislative response to the Board’s ambush election rule, one that would ensure workers, employers, and unions continue to enjoy protections that have been in place for decades. I want to thank Chairman Kline for his continued leadership in this area. Unfortunately, our Democrat colleagues in the Senate refused to stand with us.

However, I am hopeful with new allies in the Senate and the authority vested in Congress through the Congressional Review Act, we will send to the president a resolution that reins in this activist board and rolls back this destructive regulatory scheme. The president will then have to decide whether he stands with Big Labor, or with the nation’s workers and job creators. I urge the president and every member of Congress to choose the latter by supporting H.J. Res. 29. 

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Senate, House Leaders Introduce Bill to Provide Certainty to Employers Offering Innovative Employee Wellness Programs

Education & the Workforce Committee - Tue, 03/03/2015 - 12:00am
Reps. John Kline (R-MN), Tim Walberg (R-MI), and Phil Roe (R-TN), and U.S. Sens. Lamar Alexander (R-TN), Mike Enzi (R-WY), Johnny Isakson (R-GA), Tim Scott (R-SC), Orrin Hatch (R-UT), Pat Roberts (R-KS), yesterday introduced legislation to provide legal certainty—and eliminate confusion caused by the Equal Employment Opportunity Commission (EEOC)—for employers offering employee wellness programs that lower health insurance premiums to reward healthy lifestyle choices.

“Employee wellness programs not only help control the cost of health insurance,” said Kline, chairman of the House Education and the Workforce Committee, “but they also promote healthy lifestyles. Remarkably, executive overreach by the EEOC is actually punishing employers for offering wellness plans. Congress must take action to rein in this agency and provide the certainty necessary for more Americans to enjoy the benefits of these innovative health programs.”

“More and more, employers are using outcomes-based programs to make health insurance less expensive for their employees,” said Alexander, chairman of the Senate Health, Education, Labor, and Pensions Committee. “Nearly half of all large employers say they plan to adopt these innovative plans by 2017, making it even more important to eliminate confusion caused by the EEOC and restore certainty for employers who want to reward their employees for leading a healthy lifestyle.”
 
“This is yet another example of the EEOC being out of step with employers and employees,” said Walberg, chairman of the House Subcommittee on Workforce Protections. “Innovative approaches that empower employees to take more control of their personal health care decisions should be encouraged, not stymied by greater government overreach.”

“With so many employers taking advantage of the benefits that come with offering workplace wellness programs, it is important that Congress acts to clear any legal uncertainty or confusion,” said Enzi, chairman on the Senate Subcommittee on Primary Health and Retirement Security. “By reaffirming existing law, Congress is ensuring that employees can continue to benefit financially when they choose to make healthy lifestyle choices.”

“This legislation ensures what Congress has already decided – private companies are free to promote health and wellness among their employees through voluntary incentives like premium discounts, rather than heavy-handed federal mandates and taxes. I am proud to be an original co-sponsor of the Preserving Employee Wellness Program Act, and applaud employers that put in place such programs to lower health care costs for employees while also creating a healthy workforce,” said Isakson, chairman of the Senate Subcommittee on Employment and Workplace Safety.

“Our health care system needs common sense solutions driven by positive outcomes, not more uncertainty caused by the federal government,” said Scott. “Employee wellness plans have been proven to help control health insurance costs, and as more and more employers utilize them it is essential that the EEOC simply clarify its rules instead of pursuing litigation against employers because it has refused to issue guidance. I am excited to join my colleagues to introduce this important legislation that helps promote healthy lifestyles and cuts through some of the bureaucratic maze that Washington specializes in creating."

“With this bill, Congress’s bipartisan commitment to employee wellness programs should put a stop to EEOC’s overreach in seeking a court order to halt a company’s healthcare premium discount program,” said Hatch. “At a time when Obamacare is creating uncertainty for employers and employees, this act will provide legal certainty to employers offering workplace wellness programs."

“Once again during the Obama administration, Congress must clarify the intent of a bipartisan provision,” Roberts said. “In this case, I am happy to co-sponsor legislation that would reaffirm our commitment to business and health in regards to wellness programs. Financial incentives get results. Employers should be able to offer programs that encourage employees to make healthy lifestyle choices.”

A bipartisan provision in the Patient Protection and Affordable Care Act allowed employers to discount health insurance premiums by up to 30 percent—or 50 percent if approved by the Departments of Treasury, Labor, and Health and Human Services—for healthy lifestyle choices like quitting smoking or maintaining a healthy cholesterol level. A recent survey showed that 48 percent of all employers plan to add one of these programs by 2017. However, recent litigation pursued by the EEOC, citing the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, has threatened the certainty of law for employers who offer these programs.

The Preserving Employee Wellness Programs Act, introduced yesterday by Alexander and Kline, will reaffirm existing law, which allows for employee wellness programs tied to a financial reward. The legislation clarifies that an employee’s spouse may participate in the program as well. It also provides employees up to 180 days to request and complete an alternative wellness program if it is medically inadvisable or unreasonably difficult for an employee to participate in the original employee wellness program. Finally, the legislation does not limit the EEOC’s authority to investigate and litigate complaints of employment discrimination.
                                                                               

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An Off-Ramp From ObamaCare

Education & the Workforce Committee - Tue, 03/03/2015 - 12:00am
On Wednesday the Supreme Court will take on yet another legal challenge to the president’s health-care law, when the justices hear oral arguments in King v. Burwell. If the court rules against the administration, as any fair reading of the law would demand, millions of individuals and families will hit a major roadblock: They’ll be stuck with health insurance designed by Washington, D.C. that they can’t afford. Americans should have an off-ramp from ObamaCare—a legislative alternative that leads them away from an expensive health-care wreck and toward a patient-centered system.
 
To review: ObamaCare made health insurance even more costly by requiring plans to include Washington-determined benefits and levels of coverage. The only way to get people to buy these plans was to mandate them. And the only way people could afford these plans was through hundreds of billions of dollars of government subsidies.
 
But the law—as written—offers subsidies only to people who buy plans “through an Exchange established by the State.” In other words, if you bought a plan through the federal exchange—and more than five million people did in 2014—you’re not eligible for the subsidy.
 
Not one to worry over the large print, the Internal Revenue Service handed out subsidies to people on both the federal and state exchanges. This blatant disregard for the law has put millions on the hook—because if you received a subsidy and lose it because of the administration’s illegal actions, you’ll face big insurance bills you can’t afford.
 
The Supreme Court should tell the IRS to enforce the law as written—not as the administration wishes it had been written. As Chief Justice John Roberts wrote in 2012, “Members of [the] Court are vested with the authority to interpret the law” but “possess neither the expertise nor the prerogative to make policy judgments.”
 
But the question is: Then what? What about the people who will lose their subsidies—and possibly their coverage? No family should pay for this administration’s overreach. That is why House Republicans have formed a working group to propose a way out for the affected states if the court rules against the administration.
 
What we will propose is an off-ramp out of ObamaCare toward patient-centered health care. It has two parts: First, make insurance more affordable by ending Washington mandates and giving choice back to states, individuals and families. And second, support Americans in purchasing the coverage of their choosing.
 
Here’s how it would work:
 
First, make coverage more affordable. Any state that uses our off-ramp would be able to opt out of ObamaCare’s insurance mandates. These coverage requirements are driving up costs, so eliminating them would empower individuals and families to choose from a wider range of plans that fit their personal needs and budgets. Our proposal will also allow participating states to opt out of ObamaCare’s burdensome individual and employer mandates, allowing Americans to purchase the coverage they want.
 
We would also force insurers to compete for your business, rather than force Americans to buy a government-approved health plan under the threat of IRS fines. Let people buy insurance across state lines. Stop frivolous lawsuits by enacting medical-liability reform. Let small businesses band together so they get a fair deal from insurance companies. Our committees and nonpartisan analysts alike estimate that these proposals will cut costs and raise quality across the board.
 
At the same time, we would set up other safeguards for patients. We would allow parents to keep children on their plan until age 26. We would prohibit insurers from imposing lifetime limits on benefits. We would protect people with existing conditions. And we would guarantee renewability for people already enrolled in a plan.
 
Second, help people buy coverage. Right now, those who get insurance through their employer get a lot of help from the tax code, while some people who buy insurance on their own, including potentially the millions of Americans the IRS put at risk, get no help at all. So we would offer those in the affected states a tax credit to buy insurance.
 
The credit would be “advanceable”—that is, you would get it when you needed it; you wouldn’t have to wait for tax season. It also would be “refundable”—that is, you would get the full amount no matter the size of your tax bill. And would adjust the size of the credit for age; the elderly, who face higher coverage costs, would get more support.
 
This is a common-sense path—but many members of Congress have proposed a lot of good ideas that deserve further consideration. For example, some have suggested giving states more flexibility to design their own solutions. Yet when House and Senate Republicans discuss this issue, we find that there is a great deal of consensus. We all want to take power away from Washington.
 
So here’s the bottom line: Under ObamaCare, government controls your choices. Under our proposal, you will. You’ll get to pick a plan that works for you. We look forward to building upon these ideas and working with our colleagues in the House and Senate, health-care experts and, most important, the American people, to put high-quality, affordable coverage within closer reach for all. And we’ll do it by putting Americans, not Washington, in the driver’s seat.

To learn more about the proposed plan, click here

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***MEDIA ADVISORY*** TOMORROW: Committee Examines Resolution to Block NLRB’s Ambush Election Rule

Education & the Workforce Committee - Tue, 03/03/2015 - 12:00am

On Wednesday, March 4 at 10:00 a.m., the Subcommittee on Health, Employment, Labor, and Pensions, chaired by Rep. Phil Roe (R-TN), will hold a legislative hearing entitled, “H.J. Res. 29, Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the National Labor Relations Board relating to representation case procedures.” The hearing will take place in room 2175 of the Rayburn House Office Building.

In December 2014, the National Labor Relations Board (NLRB) finalized its ambush election rule, which dramatically alters long-standing policies governing union elections. The rule significantly shortens the time between the filing of a petition for a union election and the election date, limits the opportunity for a full and fair hearing of issues that may arise during the election proceedings, and grants union organizers greater access to employees’ personal information. As a result of these and other changes, the rule will undermine the right of employers to speak to employees, cripple the ability of employees to make informed decisions, and jeopardize the privacy of workers and their families.

Under the Congressional Review Act, the House and Senate may vote on a joint resolution of disapproval to stop a federal agency from implementing a rule or regulation. H.J. Res. 29 would block the NLRB’s ambush election rule and safeguard election procedures that have served employees, employers, and unions well for decades. Wednesday’s hearing will provide members the opportunity to examine H.J. Res. 29 and the harmful consequences of the NLRB’s unprecedented re-write of union election procedures.

To learn more about the hearing, visit http://edworkforce.house.gov/hearings.

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Kline, Rokita Statements on Student Success Act

Education & the Workforce Committee - Fri, 02/27/2015 - 12:00am
House Education and the Workforce Committee Chairman John Kline (R-MN) and Early Childhood, Elementary, and Secondary Education Subcommittee Chairman Todd Rokita (R-IN) issued the following statements regarding House consideration of the Student Success Act:

“Providing the Department of Homeland Security the resources it needs to defend our country has been a Republican priority for weeks,” said Chairman Kline. “I am disappointed we are unable to complete consideration of the Student Success Act this week, but national security must always come first. I look forward to continuing to discuss with my colleagues the conservative reforms in this legislation, and I expect we will have an opportunity to finish this important work soon.”

“The Student Success Act is a strong, conservative bill that will get Washington out of our nation’s classrooms,” said Rep. Rokita. I had hoped we could advance the legislation today and move one step closer to a new law that empowers parents and education leaders. However, funding the Department of Homeland Security had to be the priority. I am confident we will continue this effort in the coming weeks.”

To learn more about the Student Success Act, click here.

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Redundant, ‘Alice in Wonderland’ Executive Order Creates Bureaucratic Nightmare

Education & the Workforce Committee - Thu, 02/26/2015 - 6:30pm

The Subcommittee on Workforce Protections, chaired by Rep. Tim Walberg (R-MI), and the Subcommittee on Health, Employment, Labor, and Pensions, chaired by Rep. Phil Roe (R-TN) today held a hearing to examine the effects of Executive Order 13673, which may deny employers federal contracts if they or their subcontractors violated or allegedly violated various federal labor laws. Witnesses and members discussed how the administration’s executive overreach is not only redundant, but how it will create a bureaucratic nightmare that impedes the operation of the federal government and results in less efficient services for taxpayers.

“We can all agree bad actors who deny workers basic protections, including wage and overtime protections, should not be awarded federal contracts funded with taxpayer dollars," noted Rep. Walberg. "The federal government has had a system in place for decades which, if used effectively, would deny federal contracts to bad actors. Rather than dealing with these contractors directly under the existing system, on July 31, 2014, President Obama signed an executive order adding a burdensome, redundant, and unnecessarily punitive layer onto the federal procurement system.”

Rep. Bradley Byrne (R-AL) addressed the administrative nightmare unleashed by the order, arguing “the result of this new process will be a significantly delayed contracting process that limits both healthy competition and the efficient delivery of goods to the U.S. government at a reasonable price to taxpayers … Rather than impose additional layers of bureaucracy the administration would be better served working with Congress and stakeholders to ensure the rules and regulations implementing our laws are modernized and streamlined."

Labor attorney Willis Goldsmith echoed these concerns: "the Alice in Wonderland-like structure of the Executive Order makes it completely unworkable in the real world … [it] is so Byzantine and riddled with uncertainties that it will be impossible to predict how it will be applied in the contracting universe, leading to gross uncertainties among the regulated community as to who will qualify for a contract or not."

"I have little doubt that if the Executive Order is implemented as written, purchases by the federal government will grind to a halt,” warned Angela Styles, former Administrator for Federal Procurement Policy at the Office of Management and Budget. “Whether it is the purchase of equipment necessary for our warfighter, getting checks out the door to our senior citizens, or ensuring the safety of our food, none of it gets done without federal contractors ... Simply put, there are not enough hours in the day or employees in the federal government to implement this Executive Order.”

Summing up the sentiments of the panel, Stan Soloway, President and CEO of the Professional Services Council said, “[the Executive Order] poses a number of implementation challenges that renders it unworkable. It would also create a number of unintended consequences, and most notably, is completely unnecessary … this E.O. has too many undefined terms, too few objective standards, and too much potential for adversely affecting the federal procurement process.”

“We all share the same goal,” concluded Chairman Walberg, “however, rather than implement another layer of bureaucracy, the administration should work with Congress and stakeholders to use the existing system to crack down on bad actors and ensure the rights of America’s workers are protected.”

To learn more about today’s hearing, read witness testimony, or to watch an archived webcast, visit www.edworkforce.house.gov/hearings.

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On Appeal from the Food Court: Must Consumer Class Action Plaintiffs be “Ascertainable”?

WLF Legal Pulse - Thu, 02/26/2015 - 2:25pm
Over the past several years, WLF has advocated that trial court judges should deny certification of consumer class actions if the lead plaintiffs cannot offer an administratively feasible method for the court to determine who is a “member” of the class. This “ascertainability” issue has arisen in many food-labeling class actions in the Food Court […]
Categories: Latest News

Here’s the Right Way for Conservatives to Start Fixing No Child Left Behind

Education & the Workforce Committee - Thu, 02/26/2015 - 12:00am

On Friday, the U.S. House will vote on the Student Success Act (H.R. 5). The bill would revamp the Bush-era No Child Left Behind Act (formally known as the Elementary and Secondary Education Act). It’s a promising bill and one that deserves the enthusiastic support of conservatives.
 
The Student Success Act (SSA) jettisons NCLB’s invasive system of federally mandated accountability and gives states the freedom to gauge school performance and decide what to do about poor-performing schools. It also puts an end to NCLB’s remarkable requirement that, as of 2014, 100 percent (!) of the nation’s students would be “proficient” in reading and math.

The SSA repeals the “highly qualified teacher” mandate, a bureaucratic paper chase whose most significant accomplishment was lending fuel to lawsuits attacking Teach For America (litigants had some success in California’s courts by arguing that TFA teachers failed to meet the “highly qualified” standard). It eliminates or consolidates 65 programs. It includes expansive new language intended to finally stop federal officials from pushing states to adopt Common Core (or any other particular set of academic standards).
 
The SSA is school-choice-friendly. It boosts funding for charter schools. In a significant win, it allows Title I funds to follow low-income children to the district school or charter school of a parent’s choice. This is a big deal. It doesn’t allow private-school choice — which would be even better — but the votes simply aren’t there in the House (much less the Senate) to let Title I funds flow to private schools. Meanwhile, allowing those funds to follow children to charter schools would be an important precedent.

The Student Success Act requires that states continue to regularly assess students in reading, math, and science and publicly report the disaggregated results, to the chagrin of some conservatives — but that’s misguided. It’s not inconsistent for conservatives to want Washington out of the nation’s schools while still keeping an eye on what taxpayers are getting for their federal education dollar. Moreover, competitive federalism and educational choice benefit when parents, voters, and taxpayers have comparable data on school outcomes that can inform their decisions. Finally, shorn of NCLB’s pie-in-the-sky accountability mandates, once-a-year tests will no longer distort schooling and infuriate parents in the way they have in recent years. Conservatives should be the party of transparency and citizen-fueled accountability, not of unaccountable federal largesse.

The SSA also features a few improvements over a similar bill that House Republicans passed in 2013. It does away with a provision that would have extended a bill of Obama overreach and gotten Uncle Sam further involved in telling states how to evaluate teachers. Instead, the SSA does away with troubled federal efforts to dictate teacher training, giving states much more flexibility in determining how to use those funds to recruit, prepare, and support teachers.

The Student Success Act won’t get Uncle Sam “out” of education. But that’s okay. After all, there’s no alternative proposal that will truly get him out either. Even those who’ve called for abolishing the Department of Education have been unwilling to eliminate (or even seriously cut) federal funds for low-income students, students with special needs, Pell Grants, or student loans. And those programs combine to make up the lion’s share of what the federal government does in education. That disconnect means the calls for getting the feds “out” mostly amount to hollow rhetoric.
Moreover, there is a legitimate, limited federal role in schooling. From Lincoln’s Morrill Act in 1862, to Eisenhower’s 1958 post-Sputnik push, to Reagan’s 1983 call to arms in A Nation at Risk, we’ve recognized a national interest in schooling. But Washington should limit its involvement to those things that are appropriate to its appropriate role in our federal system. In this case, that particularly entails unwinding intrusive mandates, eliminating duplicative programs and red tape, and insisting on transparency when it comes to academic results and how federal tax dollars are spent.

The SSA would end Secretary of Education Arne Duncan’s unprecedented and troubling use of waivers. While the secretary of education has the authority to “waive” various provisions of NCLB, Duncan has taken this routine discretion and abused it — herding states into adopting an Obama education agenda. States have felt intense pressure to comply, given their yearning for relief from NCLB’s astonishing mandate that, as of 2014, federally prescribed remedies would be imposed at any school where 100 percent of students aren’t “proficient” in reading and math. Duncan’s wish list has included race-based performance targets and a clear message that states will fare best if they stand by the Common Core. The Student Success Act would end the ability of Duncan, and of his successor, to engage in such shenanigans.

Finally, the SSA allows D.C. Republicans to say what they’re for when it comes to education and not just what they’re against. When conservatives simply insist that they want “to get Washington out of schools,” they tend to get outmaneuvered by reform-minded liberals who talk about equal opportunity and then roll out laundry lists of new educational programs to promote it. The Student Success Act reflects a principled, limited federal role. It calls for states to regularly assess students, be transparent about their performance, and abide by sensible restrictions on the use of federal funds. At the same time, it rolls back federal regulations that have stymied schools and makes it easier for states to promote charter schools and public school choice. It deserves conservative support.

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Reduce the Federal Footprint in America's Classrooms

Education & the Workforce Committee - Thu, 02/26/2015 - 12:00am

The current K-12 education system is failing our students, and state and local attempts to make it better have been hampered by an enormous federal footprint. Parents and education leaders have lost much of their decision-making authority to Washington bureaucrats, and the Secretary of Education has bullied states into adopting the Obama administration’s pet projects.

Unsurprisingly, student achievement levels remain worrisome – just 36 percent of eighth grade students read at grade level and only 35 percent are proficient in math.

For far too long, our schools have been governed by a top-down approach that stymies state and local efforts to meet the unique needs of their student populations. We can’t continue to make the same mistakes and expect better results; America’s students deserve change.

Fortunately, this week, the House of Representatives has an opportunity to chart a new course with the Student Success Act, legislation that reduces the federal footprint in the nation’s classrooms and restores control to the people who know their students best: parents, teachers and local leaders.

The Student Success Act gets Washington out of the business of running schools. It protects state and local autonomy by prohibiting the Secretary of Education from coercing states into adopting Common Core or any other common standards or assessments, and by preventing the Secretary from creating additional burdens on states and school districts.

The bill reduces the size of the federal education bureaucracy. Currently, the Department of Education oversees more than 80 programs geared towards primary and secondary education, most of which are duplicative and fail to deliver adequate results for students. The bill eliminates over 65 of these programs and requires the Secretary of Education to reduce the department’s workforce accordingly.

The Student Success Act repeals onerous, one-size-fits-all mandates that dictate accountability, teacher quality, and local spending that have done more to tie up states and school districts in red tape than to support education efforts. It returns responsibility for classroom decisions to parents, teachers, administrators, and education officials.

The bill also provides states and school districts the funding flexibility to efficiently and effectively invest limited taxpayer dollars to boost student achievement by creating a Local Academic Flexible Grant.

Finally, the Student Success Act reforms the regulatory process to keep the Secretary of Education from exercising authority he does not have and provide the public with greater transparency and accountability over the development of new rules affecting K-12 schools.

Education is a deeply personal issue. After years of the Secretary of Education running schools through executive fiat, we understand that people are concerned about what a new K-12 education law will do. That is why a number of key principles have guided our efforts to replace the law since we began the process more than four years ago: reducing the federal footprint, restoring local control, and empowering parents and education leaders.

Those principles are reflected throughout the legislation, including specific safeguards that protect the right of states to opt-out of the law, as well as the autonomy of home schools, religious schools, and private schools. Organizations such as the Council for American Private Education, the Home School Legal Defense Association, and Committee on Catholic Education of the US Conference of Catholic Bishops have expressed support for policies in the Student Success Act because they know it will keep the federal government out of their business and preserve their cherished rights.

A host of administration bureaucrats is attempting to defeat these much-needed changes. They know each reform that returns flexibility and choice to parents and school boards represents a loss of power in D.C. It’s time we put the interests of America’s students above the desires of Washington politicians.

By reversing the top-down policies of recent decades, the Student Success Act offers conservative solutions to repair a broken education system. It would finally get Washington out of the way and allow parents, teachers, and state and local education leaders the flexibility to provide every child in every school a high quality education.

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Walberg Statement: Hearing on "The Blacklisting Executive Order: Rewriting Federal Labor Policies Through Executive Fiat"

Education & the Workforce Committee - Thu, 02/26/2015 - 12:00am

Federal contractors are essential to government operations. Most employers provide quality, cost effective services while complying with labor and employment law. Unfortunately, there are a few bad actors. We can all agree bad actors who deny workers basic protections, including wage and overtime protections, should not be awarded federal contracts funded with taxpayer dollars.

For that very reason, the federal government has had a system in place for decades which, if used effectively, would deny federal contracts to bad actors. In the event that a contractor fails to maintain a satisfactory record of integrity and business ethics, the contracting agency can suspend or debar the contractor, disqualifying the employer from contracts government wide.

Rather than dealing with these contractors directly under the existing system, on July 31, 2014, President Obama signed an executive order adding a burdensome, redundant, and unnecessarily punitive layer onto the federal procurement system.

The executive order will require employers to report instances in which they, or their subcontractors, have violated or allegedly violated various federal labor laws and equivalent state laws during a proceeding three year period. Prior to awarding a contract, each agency’s contracting officer and a newly created Labor Compliance Advisor will review this information and decide whether the employer’s actions demonstrate a lack of integrity or business ethics.

While the new reporting requirements are significantly burdensome, particularly for small employers, the subjectivity of the decision making process and deprivation of due process are deeply troubling. The Labor Compliance Advisor will advise the contracting officer as to whether an employer’s record amounts to a lack of business integrity.

However, this subjective determination will include alleged violations, creating a new, dangerous precedent that employers are guilty until proven innocent. Ultimately, the employer could be blacklisted based on alleged violations that are later found to have no merit, putting some good employers on the brink of going out of business.
 
We all share the same goal, however, rather than implement another layer of bureaucracy, the administration should work with Congress and stakeholders to use the existing system to crack down on bad actors and ensure the rights of America’s workers are protected.

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