BSHRM LEGISLATIVE UPDATE

SPRING 2013

2012 Electoral College Results

Why Obama Won: Major Factors in Outcome:

Better than expected turnout. Economy improving just enough. Stupid comments from Republican Senate

candidates played into Democratic charge of Republican war on women.

October surprise? Sandy slowed Romney’s momentum.

BUT, none as important as …

Obama’s Demographics

Obama won … 93% African-Americans 73% Asians 71% Latinos 67% Young Women 60% Voters Under Age 30 64% No High School Education 60% Under $50,000 / Year

Obama Also Won Overwhelming Union Support in 2012

Union Ground Game: Get Out the Vote

Unions Produced for Obama

AFL-CIO contacted 800,000 voters in Ohio alone. Part of 10.7 million door knocks and phone calls.

SEIU: 5 million door knocks,3.7 million in battleground states by 100,000 union volunteers.

Union Vote: Union households - 58% for Obama; 40% for Romney.

Unions Claim Credit

As to key battleground states Ohio, Wisconsin & Nevada, for example: “We did deliver those states. Without

organized labor, none of those states would have been in the President’s column.” AFL-CIO President Rich Trumka

Union Political Contributions

Select Union Contributions

Members Expenditures PoliticsAFL-CIO 11.6m $1.3 billion $282mSEIU 1.9m 2.07 billion 320mIBEW 655,621 4.6 billion 35mTeamsters 1.3m 1.3 billion 54mAFSCME 1.4m 1.3 billion 316mUAW 380,000 2 billion 63mNEA 3.1m 2.5 billion 238mAFT 873,454 1.4 billion 138m Change 4.3m 76 m 7m

to Win

Union Political Expenditures

“We have always known that much of (unions’) influence comes from their political mobilization, but we have never been able to put a number on it. They are a human force in the political process, but a lot of that falls outside the kind of spending that needs to be disclosed to the FEC.”

Bob Briersack, former FEC official. Currently, Center for Responsive Politics.

Union Political Spending

Union Political Spending

Romney’s Demographics

Romney won… 53% Males 59% Whites 56% Over age 65 79% Evangelicals

Romney Scored Landslide Among White Voters

Overall: 59% - 39% (more than Reagan) White Men: 62% - 35% White Women: 56% - 42% Whites under 30: 51% - 44% Whites over 65: 61% – 39%% White Protestants: 69% – 30% White Catholics: 59% – 40% White Evangelicals: 78% - 21%

Romney Won Independents

Independent voters voted Republican by 5 points (50% - 45%)

13 points higher than 2008

Romney Scored Lowest Among Latino Voters Since Watergate

Year Dem Rep 2012: 71% - 27%2008: 67% - 31%2000: 53% - 44%1996: 72% - 21%1992: 61% - 25%1988: 70% - 30%1984: 66% - 34%1980: 54% - 36%1976: 75% - 24%

Why is Control of White House Important?

Sets agenda. Cabinet-level and senior-level

appointments. Regulatory agenda. Vetoes legislation.

Senate Results Pre-election

Democrats – 51 seats (2 Independents caucus with Ds) Republicans – 47 seats Democrats defending 23 seats; Republicans defending 10

seats. Republicans needed + 4 for majority.

Post election Democrats – 53 seats (2 Independents caucus with Ds) Republicans – 45

Democrats pick up 2 seats; Republicans lose 2 seats

Why is Senate Control Important?

Confirms presidential appointments and nominations, including judges.

Approves treaties (ratification of ILO Conventions).

Filibuster: Need 60 votes to ensure agenda moves forward. In 113th, Democrats (and Independents) only have 55.

House Republicans

House Results

Republicans – 234 seats (loss of 9)

Democrats – 201 seats (gain of 9)

Why is House Control Important?

All tax legislation must originate in House. Party in control of House tightly controls

policy. Need 2/3 of House to override a presidential

veto.

Lessons for 2014 Mid-Term Elections Whites on inexorable decline as percentage

of voters (if 77% rather than 72% of whites had voted for Romney, he would be president).

Republicans have to reach out to minorities. 2014: Democrats must defend 20 Senate

seats (7 in Red states) vs 13 for Republicans (only 1 in Blue state).

BUT candidate selection! Tea Party cost Republicans Senate seats in 2012 & 2008.

What’s Next in Congress For Employers?

GRIDLOCK

Legislative Agenda for Labor and Employment?

None – with divided Congress and margins this tight, little is likely to happen

Maybe immigration reform

Democratic wish list: Something like the Employee Free Choice Act RESPECT Act Union Organizing as a “Civil Right”

Employee Free Choice Act?

AFL-CIO President Trumka: “You'll see it. That’s within the next term.”

How is that possible, without a Democratic House of Representatives or 60 votes in the Senate?

Trumka smiles. His eyes twinkle. “There’s another election between now and then,” he says. “And the AFL-CIO isn’t going anywhere.”

More Government Regulations

DOL Wage and Hour Enforcement Efforts Will Remain Strong

In its 2013 requested budget, the DOL sought 1,839 full-time investigators

Why? In the words of Cuba Gooding Jr. in

the 1996 movie Jerry McGuire, “show me the money”

Wage and Hour Claims Have Higher Awards Than Other Employment Claims

Employment Claim Type Median Award Average Award

Discrimination* $198,322 $600,690

Retaliation* $200,000 $722,179

Wrongful Termination* $259,975 $789,184

Whistleblowers* $210,000 $715,045

Wage & Hour** $1,600,000 $4,600,000

*“Employment Practice Liability: Jury Award Trends and Statistics.” 2011 Edition, Jury Verdict Research (2004-2010 data)

** “Trends in Wage and Hour Settlements:  2011 Update.”  NERA Economic Consulting

Wage and Hour Litigation Still on the Rise

Class and collective action mechanism Less work

Attorney’s Fees More money

Low barrier to entry Electronic solicitation

Wage and Hour Litigation Still on the Rise

Common claims

Meal and rest breaks Failure to pay overtime Misclassification – Exempt

Status/Independent Contractor Off-the-Clock – travel, on-call, training

“Persuader Activity” Reporting

Changes to LMRDA “Persuader Regulations” Reporting required when a third party has direct

contact with employees and encourages them not to unionize – failure to report is a crime

For 50 years, “legal advice” has been excluded

DOL proposal Any advice on organizing, bargaining or strikes

given to an employer would require reporting, even if no direct contact with employees

“Persuader Activity” (cont.) If a law firm provides advice, must publicly

report work for that client and all traditional labor work for all clients.

Failure to report is a criminal violation. Advice” would be reportable, including:

Speeches, written materials, electronic materials, supervisory training, policy reviews, policy development, all communications relating to employee’s organizing, bargaining and strikes.

OFCCP

Directive on Criminal Background Checks Automatic bars to hiring based on criminal

convictions can have a disparate impact on minorities

Conviction must be “job related and consistent with business necessity” Three factors: nature and gravity of offense

time passed nature of the job held or sought

Tracks EEOC Criminal Background Check Guidance

Executive Orders / White House

Expect “High Road” Government Contracting Regulation from Federal Acquisition Regulatory Agency Dormant since 2009 Denies employer eligibility to bid (“responsible

bidder”) where violations of labor and employment laws

Favors employers paying higher wages and benefits

Legalization of Personal Use of Marijuana

Medical use legal in 18 states and D.C.

Colorado and Washington allow recreational use

What about federal law?

How does this impact your drug testing policies?

New State Laws Prohibiting Requests for Social Media Passwords

STATE RELEVANT LAW

California AB 1844 prohibits employers from requiring or requesting the social media username or password of an employee or applicant.

Illinois HB 3782 amends the Right to Privacy in the Workplace Act – Employers cannot request from prospective or current employees: —(1) the password or other related account information to gain access to the employee’s social networking website or (2) access to any non-public portion of the employee’s account or profile on a social networking website.

New State Laws Prohibiting Requests for Social Media Passwords

STATE RELEVANT LAW

Michigan The Internet Privacy Protection Act (PA 478) prohibits an employer from requesting or requiring an employee or applicant: (1) to grant the employer access to the individual’s personal internet account; (2) to allow the employer to observe the individual’s personal internet account; and (3) to disclose information to the employer that would allow access to the individual’s personal internet account. It also prohibits an employer from discharging, disciplining, failing to hire, or otherwise penalizing an employee or applicant for refusing to comply with a request in violation of the Act.

Violation of the Act is a misdemeanor punishable by a fine of not more than $1,000. Individuals can bring civil suits for damages of not more than $1,000 plus attorney fees and costs.

This Just In

Comprehensive Immigration Reform?

2012 results 10% of voters self-identified as Latino 71% of Latinos voted for Obama Particularly critical in Colorado and Nevada

How can Republicans capture some of the Latino vote in 2014 and 2016? Immigration reform is not the sole solution, but it

may help Incredibly divisive issue and compromises are

difficult to identify

Amendment to Title VII?

Employment Non-Discrimination Act? Prohibits discrimination on actual or

perceived sexual orientation or gender identification

Did not mandate benefits to same sex couples

Bipartisan support = best chance of any law in passing

Expansion of Title VII – Victims of Domestic Violence

EEOC seeks to include victims of domestic violence and stalking as protected individuals under Title VII

Example: Employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. Employer does not hire her, concerned that she may require future time off for depression.

Expansion of Title VII – The Unemployed

In 2012, 17 states and the District of Columbia considered laws that would prohibit discrimination against the unemployed in either hiring or advertising job openings. 

Joining New Jersey, Oregon passed such a law in March and the District of Columbia passed a law in May 2012.

BSHRM LEGISLATIVE UPDATE

SPRING 2013