H.R. 1338 passed by a vote of 247-178. Voting yes: 233 Democrats, 14 Republicans. Voting no: 178 Republican, 0 Democrats.

Basic argument by the opposition: You know, it’s already against the law to discriminate on the basis of gender.

AP story hits the highlights.

President Bush addressed the West Virginia Coal Association today. Transcript of his 30-minute remarks, which highlighted clean-coal technology:

This year — I mean, since we’ve been in office we’ve spent $2.5 billion on clean coal research. Why? Because it’s a good investment to make sure that an abundant supply of energy is available and is in use for a long time coming. That’s why we’re doing it.

This year alone we’ve requested nearly $650 million in the budget for advanced coal research. It’s the largest such request in 25 years. The funding is supported — is supporting the development of technology to capture carbon dioxide emissions that come from coal. This is something the industry wants the government to do. We want us to be on the leading edge of change. We want to be able to capture CO2. These advances obviously are going to make coal more environmentally friendly. It’ll make it easier for people to say, let’s use this abundant resource.

Today my administration announced $36 million for new carbon capture projects. In other words, it’s more than just research. We’re now beginning to get into the implementation stage of promising new technologies. And eventually the technology may allow us to prevent 90 percent of coal’s carbon emissions from being released into the environment.

Department of Energy news release.

Along with politically topical remarks about opening the OCS to energy development, the President also spent some time promoting nuclear power, including the government-industry partnership for more baseload power generation, Nuclear Power 2010.  A comprehensive approach, we like to say …

Looks like the Wall Street Journal editorial writers and Helmut Hauschild of the Handelsblatt are on the same page, very, very discouraged about the failure of the Geneva WTO negotiations. From today’s WSJ editorial, “The End of Free Trade?”

Having defeated Doha, the world’s protectionists will now press forward with their special-interest agendas, hoping to build a lattice-work of cartels and managed trade. One way to push back is with bilateral or regional trade pacts, but these also risk establishing regional cartels and a web of conflicting trade rules that raise business costs.

Doha’s failure is a lost opportunity, but it could become much worse if it galvanizes even part of the world to resort to the tariffs and currency devaluations that led to and exacerbated the Great Depression. It was precisely the bitter memory of that era that led the world’s postwar statesmen to build the GATT, the European Common Market, and the rest of free-trade system we now take for granted at our peril.

What the world really needs now is a fresh burst of global economic leadership — on currency movements, pro-growth tax policies, and free trade.

At least they put a question mark on their headline.

Below we listed the various pieces of legislation with anti-arbitration provisions that the American Association for Justice, the trial lawyers association, lobbied on in the second quarter. Included was H.R. 6124, the farm bill.

Doggone it if the language didn’t make it into the law: Public Law 110-234

Section 210 includes provisions that allow livestock and poultry producers to refuse contract provisions requiring arbitration.

`(a) In General.--Any livestock or poultry contract that contains a
provision requiring the use of arbitration to resolve any controversy
that may arise under the contract shall contain a provision that allows
a producer or grower, prior to entering the contract to decline to be
bound by the arbitration provision.

Bit by bit, you can chip away at arbitration and produce more litigation.

The full section is in the extended entry.

The House Judiciary Committee yesterday reported out H.R. 6126, the Fairness in Nursing Home Arbitration Act, which would vitiate pre-dispute arbitration provisions in nursing home contracts. The Senate Judiciary has just begun a business meeting to mark up a bevy of bills, including S. 2838, the Senate version of the nursing home arbitration bill. (Sen. Specter just said that Republicans want to hold over the bill, however.)

As we’ve noted before, there’s a full-scale campaign by trial lawyers against arbitration, with the nursing home bills being for the advance guard. The ultimate goal is to drive more disputes into the courtroom.

We note the American Association for Justice’s lobbying disclosure report for the second quarter, 2008, available here, listed the following bills as being lobbied by the group.

• H.R. 3010/S. 1782, Arbitration Fairness Act, to prohibit mandatory binding arbitration agreements in consumer contracts.
• H.R. 1519, American Homebuyers Protection Act, relating to the including of mandatory binding arbitration in homebuilding contracts.
• H.R. 3512, Automobile Arbitration Fairness Act, relating to the use of arbitration agreements to resolve disputes involving nursing home care and nursing home contracts.
• H.R. 6126/S. 2838, Nursing Home Arbitration Act, relating to the use of arbitration agreements to resolve disputes involving nursing home care and nursing home contracts.
• H.R. 6124, the farm bill, specific interest in language in enrolled bill (PL 110-246) relating to the use of arbitration to resolve controversies arising under livestock or poultry contracts; also similar language in H.R. 2419.

When you spend $1.74 million on lobbying for the quarter, you can cover a lot of bills.

The House Majority Leader’s floor schedule for the day includes H.R. 1338, the Paycheck Fairness Act. (For previous Shopfloor posts, go here.)

The Statement of Administration Policy, which promises a veto, hits upon a recurring theme from opponents, that the legislation really just makes more money for lawyers suing businesses.

The bill’s provision for unlimited compensatory and punitive damages without even a showing of intent is especially troubling. Other employment statutes, such as Title VII of the Civil Rights Act and the Americans with Disabilities Act, provide for limited compensatory and punitive
damages of up to $300,000 (but unlimited backpay). These statutes only provide for such
damages after a showing that the discrimination was intentional and, for punitive damages, that
the employer “engaged in a discriminatory practice or discriminatory practices with malice or
with reckless indifference to the federally protected rights of an aggrieved individual.” To
permit punitive damages in the absence of intent or reckless indifference would be wrong.
Moreover, there is no need to add punitive damages to the EPA, since such damages are already
available under Title VII for pay discrimination. 

Another problem: The bill does not allow a company to account for geographical pay disparities. If you have an office in Beulah, Boston or Biloxi employees doing similar work must all be paid the same.
 
The NAM’s Key Vote letter in opposition is here.

Carrie Lukas, Independent Women’s Forum, “Feminists Meddle with the Market“: “[A] bill that is the equivalent of throwing sand into the wheels of our economic machine.
 

It’s a done deal, H.R. 4040. Or will be soon enough. Chairman Dingell and Ranking Member Barton are praising the bipartisan agreement. “The end product is worthy of support by everybody,” Barton said.

There’s much that concerns the business community in this legislation, obviously. We’ve written about the objections over the last several days.  That said, the members of the conference committee and their staffs listened and acknowledged those concerns.

The reality is that the heightened public anxiety about toys and children’s product safety, in particular, has helped create an environment in which some form of legislation like this was going to pass. And so it will…

The NAM sent a letter to the conferees today that affirms the association’s belief in enhanced funding and authority for the CPSC and also registers our concerns. The text is here.

UPDATE (6:05 p.m.): 424-1.

The Statement of Administration Policy on H.R. 1338, the Paycheck Fairness Act, has now been posted. First paragraph:

The Administration strongly supports and aggressively enforces our Nation’s anti-discrimination laws and is firmly committed to the principle of equal pay for equal work. But rather than contributing to that cause, H.R. 1338 would make enforcement of these laws more difficult and error-prone and invite a surge of litigation. Therefore, the Administration strongly opposes the “Paycheck Fairness Act.” The bill would unjustifiably amend the Equal Pay Act (EPA) to allow for, among other things, unlimited compensatory and punitive damages, even when a disparity in pay was unintentional. It also would encourage discrimination claims to be made based on factors unrelated to actual pay discrimination by allowing pay comparisons between potentially different labor markets. In addition, it would require the Department of Labor (DOL) to replace its successful approach to detecting pay discrimination with a failed methodology that was abandoned because it had a 93 percent false positive rate. Thus, if H.R. 1338 were presented to the President, his senior advisors would recommend that he veto the bill.

The NAM’s key Vote letter on H.R. 1338 is here. We oppose it.

UPDATE: The Heritage Foundation has just issued a new web memo on the legislation, “Paycheck Fairness Act Unfairly Burdens Employees and Employers.” Written by Heritage’s labor expert, James Sherk, the memo makes the case against this bill clearly:

In the name of protecting women from discrimination, the Act permits the government and the courts to micromanage employers, tying them up in a sea of red tape. The Act gives a windfall to trial lawyers, exposing employers to unlimited punitive damages for unintentional mistakes. Any financial benefits reaped by trial lawyers, however, will come at the expense of workers, whose wages will fall in order to cover the increased cost of legal liability insurance. The Act also obliges the government to adopt junk science by requiring the use of a highly flawed survey while declaring the best scientific practices for assessing discrimination superfluous. The PFA will hurt the very workers it is meant to help.

First organized labor argued for the Employee Free Choice Act by claiming union membership is the path to a better life. Card check would simplify the creation of a union. And that was the argument.

Realizing that they were getting hammered by the truth that the Employee Free Choice Act would eliminate secret-ballot elections, labor unions then turned up the rhetorical heat. When someone pointed out that card check would destroy the secret ballot in the workplace, labor responded, “Liar! Liar! You’re a liar!” And claim that card check would allow the unions to still call for an election, even though in any realistic world organizers would never demand a vote they might lose. (This Shopfloor post explains why.)

So when ads started running in Minnesota about the Senate candidate Al Frank’s support for killing secret-ballot elections, the Minnesota DFL (the Democratic-Farm-Labor Party) filed a complaint with the Minnesota Office of Administrative Hearings (Star-Tribune story). The party claimed the ads by the Coalition for a Democratic Workplace — to which the NAM belongs — and the separate Minnesotans for Employee Freedom violated state law against disseminating false campaign material.

But the DFL didn’t even bother trying to argue why the ads were false. They just claimed it.

Administrative Law Judge Barbara L. Nielson has now dismissed the complaints. From her memorandum accompanying the order of dismissal to the complaint against CDW.

For purposes of a prima facie determination, the Complainant must detail the factual basis to support a claim that the violation of law has occurred. Here, the Complainant has not alleged with any specificity why the statements at issue are factually false. The Complaint merely asserts that the statements are false and “contrary to the facts,” without providing any further information.

The dismissal of the complaint against the Minnesotans for Employee Freedom is available here.
CDW’s news release is here.

Labor strategy summarized: Deflect, deceive, bluster, abuse, litigate.

Lose.

(Hat tip: Michael D. Brodkorb)