BANNING ARBITRATION IN SEXUAL ABUSE CASES
Voting 335 for and 97 against, the House on Feb. 7, 2022, passed a bill (HR 4445) that would invalidate mandatory-arbitration clauses that prevent employees and others from filing court cases alleging sexual assault or harassment. Common in workplace contracts and consumer agreements, such clauses require disputes to be settled in private mediation sessions rather than open court under rules that limit discovery and usually prohibit court appeals of the decision, which is binding on both sides. Both the proceedings and outcome usually are permanently sealed from public view, and in workplace disputes, the employer often is permitted to select the mediator. Historically, millions of women employees have been required to seek redress for sexual assault or harassment in mandatory arbitration rather than the judicial system, according to congressional testimony cited during debate on the bill.
Floor Debate, Pro & Con:
Supporter Jamie Raskin, D-Md., said the Constitution “guarantees our people the right to a jury trial, but forced arbitration in the workplace brutally cheats victims of sexual harassment and assault…out of their right to a trial and jury of their peers. And by stripping women of this right, forced arbitration is creating corporate cultures of pervasive and severe sexual harassment all across the country.” He called the bill “the most important piece of pro-labor legislation to pass out of the 117th Congress.”
Opponent Michelle Fischbach, R-Minn., said: “Lawsuits are often long and expensive, and big corporations have more resources to litigate than most victims. Litigation can be harrowing for victims who, in traditional litigation, must submit to rigorous discovery, depositions, or perhaps even the challenge of a public trial. And it may even be harder for victims to tell their stories in litigation and get justice, given the rules of evidence that may apply. Democrats cast aside these concerns [and] ignore how arbitration is generally a good way to resolve disputes.”
A yes vote was to send the bill to the Senate, where it was passed on a non-record voice vote and sent to President Biden, who signed it into law (PL 117-90) on March 22, 2022.
NULLIFYING NON-DISCLOSURE CLAUSES
Voting 315 for and 109 against, the House on Nov. 16, 2022, passed a bill (S 4524) that would nullify non-disclosure agreements (NDAs) in employment contracts that limit or silence the ability of employees to report or discuss alleged acts of sexual assault or harassment against them. The bill also would quash such clauses in the contracts that consumers routinely sign to purchase goods and services. Applying only to future contracts, the bill would render non-disclosure and non-disparagement clauses unenforceable in federal, state and tribal courts.
Floor Debate, Pro & Con:
Supporter Lois Frankel, D-Fla., said businesses use NDAs “to cover up their dirty little secrets of sexual abuse that force survivors to bear the trauma in silence. It is not bad enough that a survivor is humiliated, emotionally scarred or physically hurt…. If they are forced to sign an NDA before a dispute arises, they must suffer in silence and not even be able to tell a spouse, a parent or a coworker. If they do, they can be fired or disciplined or sued for damages and attorney’s fees.”
Opponent Jim Jordan, R-Ohio, called the bill “a massive federal overreach” because it “regulates contract law that has been and should be handled at the state level. Some states have decided to regulate confidentiality clauses in contracts. Others have decided not to. That is how our system of government works. That is how our Constitution works, states experimenting to find out what, in fact, works best.”
A yes vote was to send the bill to the Senate, where no vote has occurred.
PROTECTING LABOR’S RIGHT TO ORGANIZE
Voting 225 for and 206 against, the House on March 9, 2021, passed a bill (HR 842) that would protect and expand employee rights to collectively bargain for better pay, benefits and working conditions. The bill would establish the right to organize as a civil right enforceable in federal court, prohibit the permanent replacement of striking workers and enable employees to file class-action lawsuits over working conditions. The bill also would negate state right-to-work laws allowing non-union employees to benefit from negotiated contracts without paying union dues. In addition, the bill would:
- Make it difficult for employers to classify “gig economy” workers as independent contractors to prevent them from joining unions;
- Authorize stiff National Labor Relations Board fines for employers who unlawfully disrupt organizing campaigns;
- Impose personal liability on corporate directors who knowingly sanction their company’s union-busting tactics;
- Allow immediate reinstatement in court through injunctive relief of workers fired for union activity:
- Allow mediation and arbitration to resolve disputes between newly certified unions and companies in drafting their first contract;
- Permit unions to conduct secondary boycotts;
- Allow union elections to be conducted at neutral sites and prohibit employers’ “captive audience” meetings to persuade workers;
- Permit workers with multiple employers to negotiate directly with the one exercising the most control over their employment;
- Prevent employers from using a worker’s immigration status to determine his or her terms of employment.
Floor Debate, Pro & Con:
Supporter Pramila Jayapal, D-Wash., said the bill “will undo decades of Republican antiworker policies. It puts power back into the hands of workers and secures the right to organize and bargain for good wages, fair benefits and an equal voice on the job.”
Opponent Scott Fitzgerald, R-Wis., said the bill would “undermine the ability of states to choose their own labor laws by striking down the right-to-work laws of 27 states,” forcing “millions of workers to pay dues to labor unions without any say about how their money was spent.”
A yes vote was to send the bill to the Senate, where no vote has occurred.
BARRING UNION RECRUITMENT OF UNDOCUMENTED WORKERS
Voting 206 for and 218 against, the House on March 9, 2021, defeated a Republican motion that sought to add an immigration amendment to HR 842 (above). The amendment would prohibit unions from recruiting undocumented immigrants to join their ranks. The underlying bill had no provisions to encourage such recruitment. The amendment sought to portray Democrats as unconcerned about illegal immigration.
Floor Debate, Pro & Con:
Sponsor Jim Banks, R-Ind., said the bill “would disempower American workers by drowning out their voices to the benefit of illegal immigrants…. The Democratic Party claims to have the best interest of American workers at heart, so please prove it.”
No member spoke against the motion.
A yes vote was to adopt a “motion to recommit” sending the bill to the Education and Labor Committee, where the GOP amendment was to be added.
EXPANDING COLLECTIVE BARGAINING AT VETERANS DEPARTMENT
Voting 219 for and 201 against, the House on Dec. 15, 2022, passed a bill (HR 1948) that would expand collective bargaining rights at the Veterans Health Administration to cover the agency’s physicians, dentists, podiatrists, optometrists, chiropractors, registered nurses, physician assistants and dental assistants. The power would replace authority now vested in the secretary of Veterans Affairs to regulate the hours and workplace conditions for these categories of employees. Unlike unionized workers in the private sector, federal workers cannot strike or bargain over their compensation, which set by the civil service pay grades each year.
Mark Takano, D-Calif., said: “Frontline healthcare workers deserve the right to organize themselves. They deserve to have a voice. VA nurses or technicians should be able to point out wrongdoing without fear of losing their job or other forms of retaliation. All of this sounds like common sense, and it is, and this is what collective bargaining is all about.”
Mike Bost. R-Ill., said the bill would “tie the secretary’s hands and…put patients at risk. eThe secretary [of Veterans Affairs] is responsible for ensuring veterans receive high-quality and timely healthcare. To do that, he or she must have the authority to make difficult decisions to keep hospitals running safely and to put veterans first. That is the secretary’s first mission, and he or she must continue to provide care even in the worst of times.”
A yes vote was to send the bill to the Senate, where it died at the close of the 117th Congress.
INTERVENTION TO PREVENT RAIL STRIKE
Voting 290 for and 137 against, the House on Nov. 30, 2022, passed legislation (HJ Res 100) to avert a nationwide rail strike that would begin Dec. 9 in the absence of congressional intervention. The measure would force unions and management to accept a pending collective-bargaining agreement rejected by four of the 12 unions whose unanimous ratification is necessary for it to take effect. In part, the proposed contract grants a 24% pay raise over five years with 14% taking effect immediately, a $5,000 worker bonus paid in five annual installments and one day of personal leave. Employee health-insurance premiums are capped at 15% of the cost of the policy. The agreement drew union opposition partly on grounds that it fails to provide adequate sick leave. The House later passed a measure (H Con Res 119, below) granting seven days’ paid sick leave.
Floor Debate, Pro & Con:
Speaker Nancy Pelosi, D-Calif., said: “A shutdown would grind our economy to a halt and every family would feel the strain. As many as 765,000 workers, including many union members, would lose their jobs in just the first two weeks, [costing] the economy up to $2 billion a day and [raising] prices on consumers’ products. Families wouldn’t be able to buy groceries or lifesaving medications…and perishable goods would spoil before reaching shelves….”
Another supporter, Rick Crawford, R-Ark., said: “What a colossal failure on the part of the president and [Pelosi] that we have to be here…wasting valuable time [when] we could be doing so many more important things…than having to deal with this hostage situation at a time when our economy cannot sustain it. A $2 billion a day hit….”
No opponent spoke against the measure.
A yes vote was to send the resolution to the Senate.
SENDING RAILROAD BILL TO PRESIDENT BIDEN
Voting 80 for and 15 against, the Senate on Dec. 1, 2022, gave final congressional approval to a House-passed measure (HJ Res 100, above) that would avert a nationwide rail strike scheduled to begin Dec. 9 without congressional intervention. Biden then signed the bill into law.
Floor Debate, Pro & Con:
Majority Leader Chuck Schumer, D-N.Y., a supporter, said “time is of the essence. A rail shutdown is set to begin December 9, but the truth is, we need to resolve this impasse well in advance of that date.”
Dan Sullivan, R-Alaska, called instead for delay — “a 60-day cooling-off period so the sides can get back to the bargaining table, so the president of the United States and the secretary of labor…. can get involved and do their jobs.”
A yes vote was to send the bill to President Biden.