WASHINGTON—The ban on filibusters that Senate Majority Leader Harry Reid is threatening to adopt could clear the way for Democrats to confirm several people who would run influential labor agencies, and that's worrying the business community.
Labor secretary nominee Thomas Perez could be more easily confirmed, as could the two recess appointees who have been sitting on the National Labor Relations Board since President Barack Obama skirted the Senate to install them early last year, avoiding Republican opposition. Business trade groups and employer lawyers say the combination would reactivate a vigorous regulatory agenda that would limit employers' rights while expanding those of unions and employees.
"The pro-union agenda hoped for by labor during the Obama administration has been largely stymied through litigation. The confirmations of these nominees would be like pushing a reset button giving labor hope that change as promised may finally come," said Michael Lotito, a San Francisco-based attorney who co-chairs law firm Littler Mendelson's Workplace Policy Institute.
It's unclear if or when such a ban would be invoked, and what circumstances would prompt Mr. Reid (D., Nev.) to seek it. And there's also partisan tension over Mr. Obama's picks to lead other agencies, including the Consumer Financial Protection Bureau—where a recess appointee is in charge—the Environmental Protection Agency, and the Export-Import Bank.
Randy Johnson, the U.S. Chamber of Commerce's vice president of labor and immigration, said the business trade group's concerns are "a complicated mosaic" and "we're already hearing from our members" about their worries.
The chamber's top concern is a proposed Labor Department rule that would require employers to disclose more information to the department about the third-party consultants—or "persuaders"—they hire to respond to union bargaining or organizing campaigns.
Currently, employers and consultants must file reports about these arrangements only when consultants have communicated directly with workers. But under the rule, employers and consultants would have to file reports even if the consultants are giving "advice" to the employer without contacting employees directly.
Management-side lawyers say this threatens confidentiality rules that lawyers must follow. "I think it has the real potential to discourage employers from engaging legal counsel at a time when it's more important than ever" as labor regulation ramps up, said Steve Bernstein, a partner in Tampa, Fla., with law firm Fisher & Phillips LLP.
Business representatives believe the rule would have more clout if it is advanced by a confirmed nominee.
There are also concerns about a potential Labor Department rule that would call for federal contractors to hire a minimum number of disabled workers or have their contract privileges blocked until they show they are trying to meet the 7% target.
Worry about the National Labor Relations Board is even greater. A Washington, D.C., federal appeals court ruled early this year that the two recess appointments to the NLRB were unconstitutional because the Senate wasn't technically in recess when they were made.
A company brought that case in an effort to void a board decision against it. The Supreme Court has agreed to hear the case at the Obama administration's request, which means any action the current board takes could be found invalid.
If the two recess appointees are confirmed by the Senate, the board could revisit controversial actions that have stalled because of legal challenges or technical glitches, business groups say. They expect the board would revisit a rule that would speed union-organizing elections, which they say would leave employers with too little time to explain to workers what impact the union might have.
The board, which has five seats, is expected to consist of three Democrats and two Republicans throughout Mr. Obama's term. It currently has only three members, the bare minimum needed for a quorum.
Despite the legal challenge, the board has continued to issue rulings in cases involving disputes between employers, workers and unions.
"The Supreme Court should decide the validity of the appointments before hastily moving these nominations through the process," said Kelly Kolb, vice president of government affairs for the Retail Industry Leaders Association trade group.
Write to Melanie Trottman at [email protected]
Labor secretary nominee Thomas Perez could be more easily confirmed, as could the two recess appointees who have been sitting on the National Labor Relations Board since President Barack Obama skirted the Senate to install them early last year, avoiding Republican opposition. Business trade groups and employer lawyers say the combination would reactivate a vigorous regulatory agenda that would limit employers' rights while expanding those of unions and employees.
"The pro-union agenda hoped for by labor during the Obama administration has been largely stymied through litigation. The confirmations of these nominees would be like pushing a reset button giving labor hope that change as promised may finally come," said Michael Lotito, a San Francisco-based attorney who co-chairs law firm Littler Mendelson's Workplace Policy Institute.
It's unclear if or when such a ban would be invoked, and what circumstances would prompt Mr. Reid (D., Nev.) to seek it. And there's also partisan tension over Mr. Obama's picks to lead other agencies, including the Consumer Financial Protection Bureau—where a recess appointee is in charge—the Environmental Protection Agency, and the Export-Import Bank.
Randy Johnson, the U.S. Chamber of Commerce's vice president of labor and immigration, said the business trade group's concerns are "a complicated mosaic" and "we're already hearing from our members" about their worries.
The chamber's top concern is a proposed Labor Department rule that would require employers to disclose more information to the department about the third-party consultants—or "persuaders"—they hire to respond to union bargaining or organizing campaigns.
Currently, employers and consultants must file reports about these arrangements only when consultants have communicated directly with workers. But under the rule, employers and consultants would have to file reports even if the consultants are giving "advice" to the employer without contacting employees directly.
Management-side lawyers say this threatens confidentiality rules that lawyers must follow. "I think it has the real potential to discourage employers from engaging legal counsel at a time when it's more important than ever" as labor regulation ramps up, said Steve Bernstein, a partner in Tampa, Fla., with law firm Fisher & Phillips LLP.
Business representatives believe the rule would have more clout if it is advanced by a confirmed nominee.
There are also concerns about a potential Labor Department rule that would call for federal contractors to hire a minimum number of disabled workers or have their contract privileges blocked until they show they are trying to meet the 7% target.
Worry about the National Labor Relations Board is even greater. A Washington, D.C., federal appeals court ruled early this year that the two recess appointments to the NLRB were unconstitutional because the Senate wasn't technically in recess when they were made.
A company brought that case in an effort to void a board decision against it. The Supreme Court has agreed to hear the case at the Obama administration's request, which means any action the current board takes could be found invalid.
If the two recess appointees are confirmed by the Senate, the board could revisit controversial actions that have stalled because of legal challenges or technical glitches, business groups say. They expect the board would revisit a rule that would speed union-organizing elections, which they say would leave employers with too little time to explain to workers what impact the union might have.
The board, which has five seats, is expected to consist of three Democrats and two Republicans throughout Mr. Obama's term. It currently has only three members, the bare minimum needed for a quorum.
Despite the legal challenge, the board has continued to issue rulings in cases involving disputes between employers, workers and unions.
"The Supreme Court should decide the validity of the appointments before hastily moving these nominations through the process," said Kelly Kolb, vice president of government affairs for the Retail Industry Leaders Association trade group.
Write to Melanie Trottman at [email protected]