Voters sent a message to policymakers in the mid-term elections that they expect Congress to focus on jobs. One of the first bills that the Senate will be considering since the elections, the Paycheck Fairness Act, does indeed focus on jobs — – but negatively. The legislation will make it more difficult for employers to create and retain jobs. Were the supporters not paying attention on Nov. 2?

The National Association of Manufacturers continues to highlight the flaws of this harmful proposal, sending our “Key Vote” letter to Senate offices this morning. We’re urging all Senators to oppose the legislation because it promotes uncertainty in pay practices and exposes employers to costly litigation, both of which have a chilling effect on job creation.

American workers are already effectively protected from discrimination through remedies available under existing law. The Equal Pay Act protects men and women from pay disparities in jobs that require equal skill, effort and responsibility and are performed under similar working conditions.

Another major objection is to the legislation’s invitation to more lawsuits against employers. As the NAM letter argued:

By removing all limits to punitive and compensatory damage awards on claims made under the Equal Pay Act, S. 3772 would expose employers to increased threats of litigation – even when unintentional pay disparities may have occurred. Its passage would likely prompt many employers to purchase additional legal liability insurance, increasing their costs and decreasing their ability to raise wages, increase benefits or hire new workers. In fact, it is difficult to imagine a scenario in which the bill would not lead to lower wages and fewer jobs.

Senators should not grant trial lawyers new incentives for filing suits against employers, should not burden employers with new and unnecessary mandates, and they should acknowledge the will of the electorate by voting no on cloture for S. 3772, the Paycheck Fairness Act.

Employers are becoming increasingly disturbed by the potential costs of complying with regulations coming from federal agencies in Washington, D.C. One recent item has been keeping employers awake at night is OSHA’s plan to re-interpret what’s required to protect employees from harmful levels of noise. OSHA’s proposal would not improve workplace safety but would place a huge new cost burden on employers.

The agency purports it wants to tweak an existing noise abatement standard, but in the process OSHA would reverse almost three decades of OSHA regulatory policy – a policy that’s worked quite effectively. Put simply the proposal would reinterpret the word “feasible” to mean “anything capable of being done” in the form of certain noise control efforts. The consequences are so dramatic, so costly, that the full federal rule-making process should be required. Instead OSHA is downplaying its significant by calling the proposal a “reinterpretation,” so will acknowledge cost concerns ONLY if the new requirements might put a company out of business. Is the threshold of closing down businesses going to be the new determining factor for federal regulations? We hope not.

OSHA has given the public a mere 60 days to comments on one of the most expansive proposals that the agency has crafted during this Administration, an unreasonably short period given the sweeping changes that are being sought. That’s why the National Association of Manufacturers and numerous other groups are requesting an extension to the comment deadline. Our request is available here, and the request from the Coalition for Workplace Safety is available here.

A few groups have already analyzed the impact of OSHA’s proposal. One such group, the Alaska Fire Service, highlighted some of the many flaws in a comment filed on the regulatory docket:

Interpreting “feasible” as only “capable of being done” would be an inappropropriate determining factor in enforcing aregulatory safety standard, especially this one. In our business of wildland firefighting using the above interpretation: it would be “feasible” to only fly our fire crews mid-way to a fire 200 miles away in a helicopter and then, to implement our administrative controls, land half way there & force them to hike the remaining 100 miles in the Alaska bush. Is it capable of being done? Absolutely. At the cost of potentially drowing in rivers, being attacked by bears & wolves, increasing the likelihood of slips/trips/falls, and taking an additional 8 days to reach the fire which has now grown by 5000%. Of course, 8 days would be over halfway of their maximium  14 day tour so once they arrived they have to turn around and start hiking back to base. Is this any way to implement a hearing standard?

To the Fire Service’s question we would respond a resounding “no.” Just because it may be “feasible” doesn’t necessarily mean that it should be done.

Last week’s election results didn’t bode well for supporters of the jobs-killing card check legislation. However, as we’ve noted numerous times here the fight over “card check” unfortunately isn’t dead – it’s manifesting itself through executive branch agencies – namely the National Labor Relations Board (NLRB). The NLRB will taking up case that brings into question the ability of employees to have a secret ballot election should their employers consent to labor union demands and recognize a union through card check sign up. Understanding this is a controversial case that has the potential to reverse precedent established years ago the NLRB invited public comments through the filing of amicus briefs from interested parties.

The National Association of Manufacturers and 41 other manufacturing organizations sent our response to the NLRB last week that stresses the importance of free choice in the unionization process. Any proposal to take away employee rights to hold a secret ballot election would be a tremendous setback for workers, and another coup for union leaders that are frustrated with lack of legislative progress on their most coveted piece of legislation.

Our amicus brief argues that this important 45-day window should not be eliminated. The NAM’s brief stresses that individual free choice regarding whether to be represented at all by a third party is a necessary precondition to any collective negotiation and that card-check union certification is far inferior to secret ballot union elections. To access this legal brief and a summary, click here.

The Department of Labor’s Bureau of Labor Statistics released data this week that show that workplace injuries and illnesses continued to drop last year. Last year saw some 400,000 fewer workplace injuries than the year before. We know many folks may say that this decrease may be the result of continued low employment that’s a result of our current economic situation (and failed federal policies that don’t support job growth!) But, the reality is the overall rate of injuries has also dropped from 3.9 cases per 100 full time workers to 3.6. This number shows that the ratio of individuals getting hurt at work is declining.

Now, there are many reasons for this improvement, but the fact is, these numbers have been steadily improving for quite some time now, and the trend is largely due to employers continuing to find new ways to make workplaces safer.

One would think that the Secretary of Labor would acknowledge this greater commitment to safety demonstrated by both private sector employers AND their employees. Unfortunately, in her statement accompanying the release, Secretary Solis leaves the impression she thinks that employers are juking the stats.

Complete and accurate workplace injury records can serve as the basis for employer programs to investigate injuries and prevent future occurrences. Most employers understand this and do their best to prevent worker injuries, but some do not. … We are concerned about the widespread existence of programs that discourage workers from reporting injuries, and we will continue to issue citations and penalties to employers that intentionally under-report workplace injuries.”

The NAM strongly supports the use of sound science and data in the development of regulations and standards (in fact it’s in our official policy positions), and the Department certainty should have the most reliable data possible to help agency leaders develop better policies.

We are also well aware that the agency has engaged in an expensive and time-consuming effort using OSHA resources to ferret out employers who have not kept their OSHA logs properly. While we look to the results of these programs, it just seems irresponsible to suggest that workplace safety improvements are not the product of safe work practices but the result of rigged data.

Ultimately, Solis and the Labor Department have gone out of their way to use a news release noting improvements in safety to suggest employers aren’t committed to safety. It’s ideology trumping reality.

OSHA issued a notice this morning announcing the agency’s intention of changing its official interpretation of workplace noise exposure standards and enforcement. Currently OSHA, and rightfully so, regulates the acceptable levels of noise that employees are exposed to in the workplace. To protect their employees against hearing loss, the agency has allowed employers to provide personal protective equipment – earplugs, ear muffs – to supplement their operating practices (like duration of exposure, frequency of use) and engineering controls (like noise dampening equipment and muffling systems). OSHA’s common-sense approach held that it was OK for employers to take this approach – personal protective equipment — toward noise prevention when it was effective.

However, OSHA plans to abandon this practice. In its notice, the agency announces its goal of requiring employers to implement all “feasible” controls – using a defintion of “feasible” that means “capable of being done”– regardless of the costs or the effectiveness of currently used personal protective equipment.

This means that employers must make sweeping changes to their workplaces — introduce new workplace practices and install new equipment — to quiet workplaces even if employees are already protected from loud noises with effective earplugs and the like.

These changes must be done regardless of their costs unless an employer can prove that making such changes will “put them out of business” or will threaten the company’s “viability,” according to the notice. This means that despite the costs of the new structural changes or the benefits of their current programs, employers will be expected to retool their workplaces. Should this change move forward, OSHA will begin enforcing this new policy with citations. Unless employers can prove to OSHA inspection officers that the changes will be economically devastating or are impossible to make, the companies will be forced to put these costly new requirements into effect.

So even though employees can be completely protected, employers will have to spend more to comply these additional OSHA requirements, costs that will be pose an extra burden on smaller businesses. The Small Business Administration recently reported that smaller firms pay nearly $3,000 more per employee than larger firms to comply with government regulations. That’s money that could be usefully spent on creating jobs and paying wages and benefits.

Union bosses are spending a fortune this election cycle to support candidates who have pledged to advance the “union agenda,” which contains many proposals that would be devastating to the economy. However, the media reports, this same level of enthusiasm just isn’t shared by the union members whom the union leaders claim to represent. There is growing sentiment that President Obama and Congressional Democrats have not delivered for working families and have not done enough to revive the economy. Well, in many ways we agree. Many of the proposals that have come out of Congress have actually hindered economic growth, such as: allowing the EPA to run roughshod with its regulations, passing the Ledbetter Bill and expanding government – but not controlling costs – through the health care legislation

Union leadership has already shown itself out of touch with what union members want: Above all, it’s jobs. Officials with Big Labor have waged a full-scale battle in support of the jobs-killing Employee Free Choice Act, when most union families disagreed with the provisions of the bill, specifically the effective elimination of secret ballots. At the recent “One Nation” rally, union leaders associated their organizations not with the working man or woman, but with the hard-core political left on issues involving social policy and support for the military.

Here at the National Association of Manufacturers we’ve encouraged candidates and Members of Congress from all parties to rally together for a strategy to support manufacturing jobs – something employers and employees both can get behind. We hope that this election day will serve as a wake up call for union leaders and policy makers alike: We need to work together to strengthen our economy and develop policies that help employers create and retain jobs.

Senate Majority Leader Harry Reid (D-NV) has filed cloture on the long pending Paycheck Fairness Act (S.3772) which queues the bill up for possible action during the lame-duck session of Congress. The labor unions, trial lawyers and other activists are going to find it hard to make a persuasive case for legislation that will expose employers to the threat of unlimited damages and increase litigation costs while doing little to actually prevent instances of illegal discrimination. Many of these groups and Members of Congress try to diminish the economic impact, asserting that small businesses are exempt from the bill. Recently Rep. Chellie Pingree (D-ME) claimed: “It is also important to say that this only applies to big business, this does not apply to the sandwich shop around the corner.”

Really? Really? Well let’s take a look…

The legislation’s Section 11 is in fact named: “Small Business Assistance”. This provision states that the bill would go in effect 6 months after the date of enactment. Additionally the bill directs the Department of Labor and the EEOC to provide small businesses “technical” assistance to comply with the new law as well as reiterating that the bill would apply to employers covered by the Fair Labor Standards Act (FLSA).

Well who is covered by the FLSA? For this we turn to Department of Labor’s Wage and Hour Division, which enforces that law. And, according to the Labor Department “almost every employee working in the United States” is covered by the FLSA.” Well then, who’s exempted?

Employers that have fewer than two employees and do less than $500,000 a year in business would not be covered. That really is a SMALL business. (continue reading…)

Before the Senate adjourned last night Senate Majority Leader Reid filed cloture on three bills, setting up a scenario for considering the legislation during the first week that the Senate comes back after the mid-term elections. Included in this package is the Paycheck Fairness Act. This means that it’s likely the Senate will vote on the measure in the week of November 15th.

The National Association of Manufacturers has been urging Members of Congress not to poison a lame-duck session by pushing legislation that organized labor has been agitating for, of which the Paycheck Fairness Act is a prime example. It is disappointing that Senate leadership decided to queue up consideration of the Paycheck Fairness Act, a bill that will make it more difficult for employers to create and retain jobs especially in such trying economic conditions.

As Members of Congress head off on the campaign trail, we hope that they will understand that voters are primarily focused on two things: jobs and the economy. The efforts to bring up the Paycheck Fairness Act have been largely motivated by political considerations, not sound economic policy. Well, then, Senators should consider the politics: Voters are not inclined to support bills that threaten the fragile economic recovery. In fact, they may actively reject those policies comes Nov. 2.

The Senate continues to debate S.J.RES.30, the “resolution of disapproval” by Sen. Isakson (R-GA) under the Congressional Review Act to prevent the National Mediation Board (NMB) from unilaterally changing the way labor unions can be formed under the Railway Labor Act.

Sen. Isakson (R-GA) took to the Senate floor to explain why he and so many of his colleagues have found it necessary to stop yet another attempt by an Executive Branch agency to rewrite labor law. The Senator rightfully points out in his remarks on the Senate floor that this rule change by the NMB would allow the will of the few to determine whether or not an entire workforce be represented by a labor union. He also pointed out that the Railway Labor Act doesn’t provide the same type of union decertification methods available to employees under the National Labor Relations Act, the law that covers most private sector employees. In essence, this means that should the NMB’s new rule be allowed to stand, a small group of employees that are able to participate in a NMB union election would be able to allow a labor union to be the exclusive representative of employees in perpetuity.

Many opponents of the measures claim that the NMB rule is appropriate by trying to draw parallels to other elections, such as those for U.S. Senate. Well, if the same logic is applied to the Senate that would mean that voters would elect Senators for life without a real opportunity to recall their Senator. Additionally, as Sen. Isakson notes, because the resolution needs 60 votes to invoke cloture to move forward, a Senator who doesn’t participate in the vote is essentially declaring a “no” vote much like the way NMB union elections are currently handled.

Earlier this week the National Association of Manufacturers sent a letter to the Senate in support of the resolution highlighting an important point:

The Senate should disapprove this rule by supporting S.J.RES. 30, as it would harm positive employee relations and sets a disturbing precedent for other federal labor boards like the National Labor Relations Board. More importantly, we believe the NMB is circumventing the proper role of Congress in setting our nation’s labor laws on a level playing field to protect the rights of those who wish to be represented by a labor union and those who do not.

The Senate will be voting on the resolution shortly. The Senators who support the resolution will be voting to protect the rights of employees who do not necessarily wish to have a labor union represent them before their employer. Conversely, Senators who object to the resolution will be voting to allow unelected federal officials to change the rules of union elections – a change that should only be considered by Congress.

UPDATE: (1:54pm) The Senate has answered the question that we posed earlier: “Yes, we will continue to allow the executive branch to overturn our labor laws by rewriting the rules on how a labor union is formed.” The Senate voted 43 for – 56 against the resolution earlier today. Three Democratic Senators: Lincoln (AR), Pryor (AR) and Nelson (NE) joined with 40 Republicans to support the resolution. The motion required 60 votes to move forward in the Senate. Click here for the vote breakdown.

At the moment it’s unclear if Senate Majority Leader Harry Reid (D-NV) will bring the Paycheck Fairness Act up in the Senate before Congress adjourns for the mid-term elections. What is clear is the Administration’s strong support for the legislation that will do little to address actual instances of illegal discrimination. What’s even clearer is that the legislation will not help manufacturers create jobs.

On Tuesday, Labor Secretary Hilda Solis and Lilly Ledbetter, the plaintiff in the Ledbetter Supreme Court decisions and political activist who has lobbied for the legislation named in her honor, hosted what was billed as a Department of Labor webcast. Usually Labor Department webcasts are a forum for the public to ask questions of senior Department officials on key issues like the Department’s budget requests and regulatory agenda. Tuesday’s event was much different. This “webcast” was a streaming video feed of a discussion by the Secretary and Ms. Ledbetter on their support for the Paycheck Fairness Act. There were several participants in the audience, assumingly there upon the invitation of the Department. Our invitation must have been lost in the mail. It appeared that most in the room were supporters of the legislation who tossed softball questions to the Secretary.

If I were in the room there would’ve been many questions that I would’ve liked to ask, such as:

1. Ms. Secretary – you expressed the need to gather more data about the alleged pay gap, however it appears as though the Department of Labor has removed an important analysis of pay equity issues as the Obama Administration transitioned into effect. Wouldn’t it be helpful for the Department to analyze existing research it commissioned?
2. Ms. Secretary – the Administration continues claim that women’s wages only constitute 77 percent of men’s wages. However your Department recently published updated data that shows that the pay gap is narrowing. Why do you continue to use outdated information?
3. Ms. Ledbetter- You claim that the Paycheck Fairness would allow employees to freely discuss their paychecks. However isn’t this employee right already protected in the National Labor Relations Act as one of many “protected concerted activities”?
4. Ms. Secretary – Data from the EEOC shows that 95 percent of discrimination claims against employers do not have grounds. Even though most of these claims are meritless employers still need defend themselves against these costly allegations. Are you concerned that passage of the Paycheck Fairness Act may encourage more suits to be filed against employers that may not have merit?