As the rest of the nation slows down during the summer months, the U.S. Senate is poised to enact a fundamental change to its procedures, the results of which could drastically affect the workplace. On Thursday, Senate majority leader Harry Reid (D-NV) announced that he would set up a series of votes on a number of controversial executive nominations, including the pending nominees to the National Labor Relations Board and Department of Labor, and challenge the Senate to vote on them (known as “invoking cloture”). If Republicans do not allow the votes to proceed, Sen. Reid is threatening to change Senate rules to avoid procedural filibusters and allow the executive nominations to be approved by a simple majority (51 votes) – the so-called “nuclear option.” According to several recent news accounts, this option has an excellent chance of being adopted sometime next week. So what does this mean for employers?
Allowing the Senate to approve the various nominees – in particular, Thomas Perez to be the next Labor Secretary and Mark Gaston Pearce, Sharon Block, Richard Griffin, Harry I. Johnson, III and Philip A. Miscimarra to be members of the NRLB – would have a profound effect on the workplace. Despite rumors to the contrary, Thomas Perez stands a good chance of being confirmed as the next Secretary of Labor. Once this happens, the agency likely will implement its ambitious regulatory agenda with vigor.
Notably, the agenda states that the controversial “persuader rule,” which would broaden the scope of reportable activities by substantially narrowing its interpretation of the “advice exemption” in Section 203(c) of the Labor Management Reporting and Disclosure Act (LMRDA), is scheduled to be finalized in November 2013. Several trade associations and other business advocates are trying to prevent the rule from being implemented. This week, an attempt to defund the implementation of the rule was thwarted by the Senate Appropriations Committee.
If a simple majority is all that is needed to approve the Board nominees, there is a good chance that all five nominees – including recess appointees Block and Griffin – will be seated to the NLRB. Should that happen, a fully constituted Board will likely revisit the expedited “ambush election” rule, among others that have been delayed. Business advocates have long claimed that the intent of these rules is to create an environment that favors labor.
Meanwhile, the chances of the House of Representatives passing an immigration reform bill is growing dimmer by the day.
Members of our Workplace Policy Institute will be closely monitoring these developments.