Sitting here in Washington, one could think the entire nation is obsessively following the health care debate, shouting at the TV for interrupting House whip counts with that stupid March Madness.

But people do have other things on their mind, and you don’t even have to travel to flood-threatened Fårgo to realize that. The corners of 13th and F Street NW are close enough.

The lead headlines in the newspaper boxes indicate differing interests. Yes, health care, but also escalators and Sunday’s pro-immigration march on Washington.

• Washington Post, “House unveils $940 billion health accord”
• Washington Times, “Democrats make final reform push“
• El Tiempo Latino, “Llega el dia de la marcha” — The day of the march arrives.
• Washington Hispanic, “Immigrantes salen a las calles” — Immigrants take to the streets.
• USA TODAY, “Upsets Rattle the Brackets” — Hoya Saxa?
• Washington Examiner, “Death by iPod” — It’s dangerous to jog and bike when wearing headphones.
• The Express, “Broken Down and Fed Up” — Washington Post’s commuter tabloid highlights Metro’s infuriating escalator breakdowns.

The Spanish-language newspapers have been promoting Sunday’s immigration march on Washington for quite a while, but other D.C.-based media have paid little attention.

Jane M. McFetridge, managing partner of Jackson Lewis LLP’s Chicago office, testifyied at the Senate Committee on Health, Education, Labor, and Pensions hearing, “A Fair Share for All: Pay Equity in the New American Workplace.” From her prepared statement:

The Paycheck Fairness Act would preclude employers from making market-based pay determinations, encourage frivolous litigation, and expose companies to financial ruin by way of uncapped punitive damages and massive class action litigation. Rather than eliminating discrimination, the legislation, if passed, would provide a windfall to attorneys who litigate employment discrimination cases, but result in no meaningful change in the extant wage differential. Furthermore, the Paycheck Fairness Act would levy enormous cost on companies and employers already reeling from the worst economic crisis we have seen in most of our lives.

As public policy, the legislation would be harmful, she testified, but for law firms like Jackson Lewis, it would mean a lot of lucrative new work.

The hearing Thursday also provided a good reminder of how policymaking benefits from having elected officials with experience in the private sector. Both Sen. Mike Enzi (R-WY) and Sen. Johnny Isakson (R-GA) drew on their backgrounds as former business owners to get beyond ideological talking points into a discussion of how litigation-inviting legislation would burden employers — the people who actually create jobs.

Here’s Enzi’s opening statement.

As we noted earlier today, the Senate HELP Committee held a hearing on the Paycheck Fairness Act this morning. The NAM joined with many other employer groups in sending a letter to the HELP Committee members prior to the hearing. Our letter explains that the Paycheck Fairness Act “would jeopardize employee incentive pay and employee privacy, and promote costly litigation against even well-intentioned employers – all while doing little to prevent actual wage discrimination.”

Our letter further explains that if the bill were to become law it would:

threaten employee bonus or incentive pay that, by definition, provides some employees a higher wage than others,

prohibit employees from negotiating higher pay either before being hired or during employment,

allow employees’ wages to be disclosed to peers, friends, family and competitors,

require employers to submit pay data on their employees to the Federal government,

force the Labor Department to reinstate a flawed and duplicative pay grade survey that has proven ineffective at enforcing civil rights laws among federal contractors,

make it easier for trial lawyers to file large class actions against employers, and

establish unlimited punitive and compensatory liability under the Equal Pay Act against employers of every size.

While the Senate has been focusing on numerous bills to create jobs, it seems counterintuitive to move forward on legislation that would make it more difficult for employers to create and retain jobs.

The Senate Health, Education, Labor, and Pensions Committee has started its hearing, “A Fair Share for All: Pay Equity in the New American Workplace.” The hearing represents the return of Congressional attention to the Paycheck Fairness Act, in this case, S.182, to amend the Fair Labor Standards Act of 1938 (FLSA) known as the Equal Pay Act to increase liability and penalties for gender-based wage discrimination. The bill:

• Makes employers who violate sex discrimination prohibitions liable in a civil action for either compensatory or (except for the federal government) punitive damages.
• States that any action brought to enforce the prohibition against sex discrimination may be maintained as a class action in which individuals may be joined as party plaintiffs without their written consent.
• Authorizes the Secretary of Labor (Secretary) to seek additional compensatory or punitive damages in a sex discrimination action.

Well, that’s fair, the lawyer remarked.

Our man Keith Smith is at the hearing and will be Tweeting developments @Shopfloor_NAM. We just know he’ll be fair.

The Senate HELP Committee this Thursday will hold a hearing on the Paycheck Fairness Act. While this bill’s title gives the casual observer the sense that it will prevent discrimination in pay, in reality it only promotes more litigation. In the process, the legislation creates tremendous uncertainty for employers who are struggling to create and retain jobs in these trying economic conditions.

This legislation will be a boon to the trial bar by allowing unlimited punitive damages and larger class action suits against employers under the Equal Pay Act. Because the Equal Pay Act is a strict-liability statute, plaintiffs’ attorneys don’t even need to demonstrate an employer’s intent to do harm to file a suit. If passed into law the Paycheck Fairness Act would force employers to second-guess every pay decision that they make.

In addition, the bill eliminates key employer affirmative defenses when presented with such claims. Just last year EEOC data shows that fewer than 5 percent of discrimination claims actually had legal grounds behind them. What does this mean? Even though a case may not have grounds, it forces employers to mount expensive defenses themselves against such claims. As The Washington Post when they rightfully pointed out that this legislation “risks tilting the scales too far against employers and would remove, rather than restore, a sense of balance.”

While illegal discrimination has no place in today’s workplaces, this legislation will not address those issues. Discrimination on the basis of gender is already illegal. The legislation does not make discrimination any more against the law, it simply opens up the judicial process to more civil lawsuits based on equal pay claims. Who benefits? Not the worker, the lawyers

Fresh from his Senate confirmation, David Michaels, the new Assistant Secretary of Labor for Occupational Safety and Health, made his maiden speech as OSHA Administrator Wednesday. He spoke at a conference sponsored by the National Institutes of Occupational Safety and Health, an address entitled, “Making Green Jobs Safe: Integrating Occupational Safety & Health into Green and Sustainability.” Excerpt:

I think it’s very fitting and proper that my first speech as Assistant Secretary should address the issue of green jobs - what green jobs mean for the earth, for our economy and for American workers.

We’re all aware of the job opportunities that green jobs offer, and in the present economy, new technologies with the potential of new jobs are especially welcome.

Secretary of Labor Hilda Solis recently announced nearly $55 million in green job grants, authorized by the American Recovery and Reinvestment Act of 2009. These grants will support job training and labor market information programs to help workers, many in underserved communities, find jobs in expanding green industries and related occupations.

Is it fitting, really, that the first comments by a powerful federal regulator single out one segment of the economy for implicitly favored treatment? No one really knows what “green jobs” or “green industries” are; subjective definitions and standards are enemies of consistent regulation — and the rule of law, for that matter.

To be fair, the occasion was a forum dedicated to greenness, so comments to the topic were to be expected. But when speaking about the broader economy, Michaels offers even more of this subjectivity and invidiousness. This is a striking statement, coming as it does from a powerful regulatory and enforcement official who should embrace fairness and objectivity.

Where, and when possible, OSHA must move ahead on rulemaking for urgently needed standards - and to create good standards, we’ll need the input of scientists and engineers, academics, students and workers. We’ll also need allies in the progressive business community who will say “yes” to sensible changes and participate in the rulemaking process with constructive comments and insight.

Those comments divide employers into good business and bad business, progressives and reactionaries, those to be rewarded, those to be punished. In other words, “If you go along with us, support our proposals with our ’sensible changes’ you’re progressive and good, and we’ll get along just fine. If you disagree with our proposals, object to our ’sensible changes,” well, then, we won’t pay any attention to you. If you’re lucky. If you’re not, we might pay a lot of attention to you, and you won’t like it a bit.”

We would have expected a top official in the jobs-minded Obama Administration and Department of Labor to begin his tenure with speech that says, “We are going to work with everyone to create good jobs in a safe and healthy workplace.” Instead, we get a speech that told employers to fall in line with whatever OSHA says or pay the consequences.

Kudos to the Obama Administration and the Department of Labor for conducting webchats about the department and its sub-cabinet agencies’ regulatory agendas on Monday. They seemed to work well and provided useful information. (Earlier post.)

We’ll admit to be frustrated by the online comments from Jordan Barab, the acting administrator of the Occupational Safety and Health Administration (OSHA), on the topic of ergonomics. Next week Barab will become deputy administrator after the newly confirmed David Michaels assumes the top spot. This week, he offered conflicting commentary on whether the agency would propose new ergonomics regulations.

Here are two exchanges:

Monday December 7, 2009 4:08

[Comment From Judie Smithers] From the Secretary’s chat: The agenda has an entry at the proposed rule stage to add requirements to record musculoskeletal disorders in a separate column on the 300 log. Does this signifiy that OSHA is considering future action to promulgate an ergonomics standard?

Jordan : Judie, This is not a prelude to a broader ergonomics standard. No, we are simply putting the MSD column back on the OSHA log as was originally intended in the 2001 issuance of OSHA’s recordkeeping standard. MSDs continue to be a major problem for American workers, but at this time, OSHA has no plans for regulatory activity.

Monday December 7, 2009 4:32

[Comment From Holly] In a speech recently, you called ergonomics a “huge health and safety problem” and said the govt must “take the field and make some fundamental changes.” Given these comments, why WOULDN’T OSHA have plans for regulatory activity?

Jordan: Holly: You’re right. I called musculoskeletal disorders a “huge health and safety problem.” I also called it a “huge political issue” and that we are in the process of determining how we are going to address it. Our new Assistant Secretary will arrive later this week, and we will intensify the process of determining how we are going to address ergonomics.

So OSHA has no plans for a new ergonomics rule, but it might have plans next week after Michaels arrives? Repetitive stress disorders are a “huge health and safety problem,” but OSHA’s goal now is merely to “intensify the process?” What in the world is “intensify the process”?

Since Barab’s all over the map in those responses, let’s pin him down to Milwaukee, Wisc., where he gave a speech to the AFL-CIO on September 25, the speech that commenter Holly cites in her question.

Here’s what he said to the labor audience, with lawyers the primary constituency for new rules:

And soon we must confront the 60,000-pound elephant in the room: Ergonomics. Let’s acknowledge a couple of obvious things about “ergo.” First, it’s a huge health and safety problem, recognized by strong science. Second, it’s a huge political football that some very big players don’t want to see on the field. Well, for the sake of our working men and women, we have to take the field and make some fundamental changes in America’s workplaces.

That sounds like OSHA will propose a new rule, doesn’t it? The Clinton Administration used a “midnight regulation” to establish an ergonomics standard in 2001, repealed by Congress using the Congressional Review Act because of the rule’s multi-billion-dollar cost, ambiguity, and potential to destroy jobs.

We’ve put more of Barab’s map-skittering responses in the extended entry below. Judging from the answers, we suspect that if OSHA issues a new rule — President Obama’s inclination as announced on the campaign trail — it will try to disguise its costs and burdens to escape political backlash.

It’s a shame the Senate HELP Committee could not manage to hold a confirmation hearing for David Michaels to allowing a public examination of issues like ergonomics. Well, welcome aboard, Mr. Assistant Secretary.

National Association of Manufacturers’ President John Engler and Carl Schramm, president and CEO of the Kauffman Foundation, appear on CNBC’s “Street Signs” to discuss jobs creation, with a focus on entrepreneurship, innovation, productivity and the importance of foreign-born employees, education and visas.

Engler: “We are and should be the best country in the  world to do research and Development. We ought to be the best country in the world to headquarter our company. We ought to make sure that all our policies align , whether those are tax policies or research and funding of the basic research in this country. Lot of exciting things on the horizon – We ought to be out in front.”

Schramm: “When it comes to creating jobs, it is these new high-tech jobs that actually do lots of on-the-jobs training that intensify the skills-set of our native born population, so in my ways it is a win-win situation to expand our citizenship with folks who are terribly talented. They’ll help us, we’ll help them.”

Schramm and the Kauffman Foundation support what they’re calling an “immigrant’s visa,” described in a Wall Street Journal editorial Tuesday, “Start-up Visas Can Jump-Start the Economy,” by investors Paul Kedrosky and Brad Feld:

In the 21st century … opportunities don’t wait for our interminable, employment-based visa programs. As a result rather than saying “Come and create jobs here” we, in effect, tell them to shove off. Come back when you have a few million in sales— at which point they will be rooted elsewhere and creating jobs somewhere else.

That needs to end now. Immigrants who come here to create companies create jobs. We need the jobs.

One good idea to make this process easier is to create a new visa for entrepreneurs, something that is increasingly being called by venture capitalists, entrepreneurs, and angel investors a “start-up visa.” It might work like this: If immigrant entrepreneurs want to start a company in the U.S. and are able to raise a moderate amount of money (perhaps as little as $125,000) from an accredited U.S.-based venture capital firm or qualified U.S.-based angel investors, we should let them start a company here. It could be a couple of founders with an idea—that’s it. We would give visas to the founders and welcome them in to our country.

One minor error at the start by Erin Burnett: Schramm is attending today’s White House Forum on Jobs and Economic Growth (Kauffman Foundation news release), but the NAM’s Engler is not. Manufacturing is well represented among the 130 attendees, however.

New Jersey’s new paid parental and family leave mandate went into effect July 1. NJBIZ.com reports on the impact in “‘In a world of hurt’“:

Rich Balka, owner of Trenton-based Home Rubber Co., said he appreciates the concept behind the law. “Anything we can do to benefit our employees is a good thing,” he said.

But Balka said his company doesn’t have enough employees to sustain the loss of anyone for the time allowed by the law.

“We have really no redundancies in our employees at this point,” said Balka, who bought the industrial rubber products maker in 1996. It is one of the few manufacturers left in Trenton.

Since Home Rubber eliminated the jobs of general office manager and purchasing assistant, the remaining office staff is picking up the slack. “If I lose an employee, I’d be in a world of hurt.”

Melanie Willoughby, senior vice president with the New Jersey Business & Industry Association, said she has spoken with many business owners at seminars who remain unsure how the law will intersect with the federal leave law and other requirements. “There is tremendous confusion still among employers,” she said.

This story appeared before last Tuesday’s elections in New Jersey, where voters defeated incumbent Gov. Jon Corzine, who signed the law.

And to employers: Think you’re confused now? From WSJ, “House Bill Introduced to Require Paid Sick Leave for H1N1 Cases.”

Responding to the Shopfloor.org post Thursday on the NPR story featuring manufacturers whose policy it is to not lay off employees, labor journalist Frank Koller — who was quoted in the “Morning Edition” report – offers a few additional observations:

The reason why unions have been suspicious of no-layoff policies - much more so during the first 75 years of the last century - is quite understandable. In order to work for everyone’s benefit, these policies are based on a sense of trust throughout a company that sacrifices in hard times will be shared equally across the firm (for example in terms of lower compensation and/or reduced hours of work to avoid layoffs) - and of course, the same requirement for sharing equally needs to apply to the shared gains in good times.

All too often, the rhetoric of sharing has tended to work one way only - labor shares the pain, management shares the gains - and so, in all too many cases, over the years, the distrust by workers (organized or not) towards no-layoff policies has been perfectly justified.

In the cases of Lincoln Electric (in operation in Cleveland since 1895) and Hypertherm (in Hanover, New Hampshire since 1968), trust has simply become part of the corporate DNA of both firms and their workforces.

It has taken these firms decades of committed leadership to nurture a widely-felt belief that indeed, over the long-term - “we are in this together and will as a result, ultimately, we will benefit together.” It’s not easy - but it is powerful business model. Layoffs are enshrined as the absolute last step to ensure firm survival, rather than just another tool in management’s quiver.

Frank reports that his book on Lincoln Electric’s history of guaranteed employment - which includes a profile of Hypertherm, as well - is called “SPARK” and is due for publication by PublicAffairs in New York City next February 23. You can see more about the book at:
http://www.frankkoller.com … and
http://www.publicaffairsbooks.com/publicaffairsbooks-cgi-bin/display?book=9781586487959