[Congressional Record Volume 154, Number 101 (Wednesday, June 18, 2008)]
[Senate]
[Pages S5733-S5735]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EUROPEANIZING U.S. LABOR AND EMPLOYMENT LAW
Mr. HATCH. Madam President, on the campaign trail this election year
one hears a lot about change and helping the middle class. But what do
the professed ``change agents'' have in mind by change, and what would
such changes mean for our economy and creating middle class jobs?
Pending legislation in Congress sponsored by the change agents would
more closely conform America's labor and employment laws to the failed
European model which has saddled the French and Germans with 30 years
of higher unemployment, stagnant job growth, and lower productivity.
French President Nicolas Sarkozy has said workplace regulations in
France are ``unjust, discourage work and job creation,'' and ``fail to
bring equal opportunity'' to the middle class. German Chancellor Angela
Merkel has called for reform of Germany's labor regulations for the
same reasons.
At a time when leaders in France and Germany are trying to reform
their workplace laws and move closer to the U.S. system, do we really
want to infect our country with European-style workplace regulations
that could cost middle class jobs and curtail economic growth? Do we
really want to become another France?
For more than 70 years, union representation elections in the
workplace have been supervised by career employees at the National
Labor Relations Board to ensure the elections are conducted fairly and
privately. The deceptively misnamed Employee Free Choice Act pending in
Congress would deny employers the ability to petition for private
ballot elections among their employees to determine whether or not the
employees, voting by secret ballot just as in political elections,
desire to be represented by a labor union.
The bill would scrap our current system of private voting in secret
ballot elections and replace it with a forced card check certification
in which employees can be pressured by union organizers into signing
union petitions, or union authorization cards at work, at home, in a
bar or on the streets. Union leaders boast that this change would lead
to millions of new union members, but at what cost to workplace
democracy?
Even worse, the bill would turn over a business's financial
competitiveness to federal Government-appointed arbitrators to set
wages, pension and health care benefits, work hours and other terms and
conditions of employment. If, after only 90 days of bargaining, the
parties themselves have not agreed on the terms of an initial union
contract, the bill would mandate interest arbitration through which a
federally-appointed outside arbitrator would be vested with virtually
unchecked authority to impose a contract binding for 2 years on the
parties, without even a ratification vote among the employees to
approve its terms. Such determinations imposed on the parties will be
affected by the arbitrator's own economic or social theories, often
without the benefit or understanding of practical, competitive economic
forces.
Is that the change we need to help the middle class?
Consider further the misnamed RESPECT Act, sponsored by the same
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professed change agents, which would impede private sector employers'
ability to manage their operations through first-line supervisors. The
bill would reclassify supervisors who assign or direct the work of
others, and expose them to the same union contracts and work rules,
union discipline, strikes and other work stoppages, as the employees
they supervise, thereby creating the types of conflicts of interest
that the 1947 Taft-Hartley Act wisely sought to avoid. The legislation
should be renamed NO RESPECT, since it would deny supervisors the
status and supervisory authority they worked hard to attain, as well as
eliminating employers' right to expect the undivided loyalty of these
supervisors as their agents in labor-management relations.
Other bills pending in Congress, all cosponsored by change agents on
the campaign trail, would radicalize U.S. employment law, resulting in
the type of European paralysis that has impeded middle class job
creation and economic growth in France and other countries. These bills
would, however, expand one industry where unfortunately the U.S.
greatly outpaces Europe: the plaintiff trial bar, which has an
unsurpassed world record of bringing lawsuits, many frivolous, against
employers.
One bill would remove any time limits on the filing of pay
discrimination claims against an employer, thus creating open-ended
liability years. Another would provide unlimited employer liability for
punitive damages by removing the caps on damage awards which were
wisely set by the 1991 Civil Rights Act at $300,000 in exchange for
amendments allowing jury trials for employment discrimination claims.
Open-ended liability and unlimited damages: a plaintiff trial lawyer's
dream.
A third bill would undermine congressional intent with regard to the
Americans with Disabilities Act by classifying virtually any physical
impairment as a disability for purposes of bringing claims and lawsuits
against employers. I helped lead the fight for the Americans with
Disabilities Act. The courageous pioneering members of the disability
community responsible for passage of the legislation were not
interested in protecting temporary illnesses such as the flu, or minor
impairments which could be corrected by prescription eyeglasses or
medication. Now, however, by preventing consideration of mitigating
factors as an affirmative legal defense, and no longer requiring that
the disability affect a major life activity such as working, the new
legislation would treat such minor impairments as disabilities. The
effect is to trivialize the law and promote frivolous lawsuits against
employers. The problem with the bill's sophistry is that if everyone is
considered legally disabled, even those with easily correctable
impairments, then no one is truly protected.
Another pending bill is an unprecedented Federal mandate regulating
an employer's decision-making. It is the closest thing to the type of
workplace regulatory paralysis that has stymied the Europeans. In fact,
it reportedly was modeled directly from European laws.
Any time an individual employee requests a change in work schedules,
including when, how long, and where the employee is scheduled to work,
the so-called Working Families Flexibility Act would require employers
to meet with the employee within 14 days, and thereafter, within 14
days, to provide a detailed written decision with company information.
The employer's written decision would have to include, among other
things the identifiable cost of the change in a term or condition of
employment requested in the application, including the costs of loss of
productivity, of retraining or hiring employees, or of transferring
employees from one facility to another facility, and the overall
financial resources involved.
If the employee is dissatisfied with the employer's decision, the
employee may request reconsideration and the employer must schedule
another meeting, again within 14 days, with the employee accompanied by
any designated representative. If the representative is unavailable,
the meeting must be postponed. Thereafter, the employer must respond to
the request for reconsideration in writing, stating sufficient grounds
to justify the decision.
But that's not all. The employee may trigger a Federal investigation,
which must be undertaken by the U.S. Department of Labor and a
subsequent Federal administrative hearing to review the employer's
decision. This could lead to Federal enforcement actions, monetary
fines against the employer, Federal court injunctions and other legal
orders for employment, reinstatement, promotion, back pay, and other
changes in terms and conditions of employment.
How many times in a workweek does an employee ask a supervisor for a
change in working hours or work schedule? For example, ``Hey, boss, I
want to only work a 35 hour week'' or ``I want Fridays off in hunting
season'' or ``I would prefer to work closer to home.'' If this European
style, so-called right to request law were to be adopted in the United
States, it would bog down the workplace with mandatory negotiation of
potentially any decision affecting working hours, work schedules, or
location of work with every individual employee--a union of one--and
with the threat of federal investigations and legal actions.
Is that the type of change we want?
Labor leaders and their allies frequently point to Europe when they
lobby for changes in U.S. labor and employment laws. But even a cursory
look at comparative economic indicators shows that the adoption of a
French or German-style labor regime actually reduces workers' job
options and diminishes wages while bogging down economies and
discouraging enterprise.
Flexibility is a key factor in the economic dynamism of the U.S.
labor market. The ease with which employers can build and rebuild their
workforces provides great flexibility in innovation and response to
market changes. The United States is the easiest country in the entire
world in which to employ labor, according to The World Bank, and the
third best country in which to do business overall.
Meanwhile, U.S. labor productivity far outpaces that of France and
Germany, and also Canada, Japan and the United Kingdom. The United
States has not only been the most productive country in the world but
has also grown in productivity at a greater rate than other developed
nations. In 2006, U.S. productivity per employed person was nearly
$65,000 compared to $49,000 for France and $43,000 in Germany.
The U.S. has been an engine of job creation for the past 35 years
despite temporary recessions, gas shortages and even terrorist attacks.
Compared to workers in most of Europe, U.S. workers have more job and
career options, greater upward mobility, and employment growth.
Consider unemployment rates. France's jobless rate is Europe's
highest. This chart shows unemployment rates for the past 15 years or
so. Notice that the United State's highest unemployment rate--6.1
percent in 1994--doesn't come close to the lowest unemployment rates
for France, which was 8.4 percent in 2001. For the past 15 years, the
U.S. average unemployment rate was 5.1 percent, while France's was
double that at 10 percent.
Looking at the past few years in France, nearly 70 percent of those
unemployed have been looking for work for more than six months and
nearly 45 percent of them were still looking for work after a year. In
Germany, about 55 percent of the unemployed is out of work for at least
that long.
In the United States, workers stand a better chance of getting
another job and sooner. Less than 20 percent of those unemployed have
been looking for a job for 6 months or longer, and only about 10
percent were looking for more than a year.
For centuries, people from all over the world have been drawn to the
United States for economic opportunity. While the unions and some in
Congress believe that European-style labor law is what is best for
workers, leaders in France and Germany know better. They understand
that regulatory economic rigidities that hold out the false hope of job
security often limits workers' options for finding better
opportunities, makes it harder for the unemployed to find work, and
discourages entrepreneurs from creating new middle class jobs. Congress
cannot mandate that employers create jobs, stay in business, or even
that they do not conduct business elsewhere. But in the name of change,
ostensibly to help the middle class, Congress can mandate
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the types of harmful employment regulations that will reduce or even
eliminate middle class jobs in the United States.
``Europeanization'' of U.S. labor and employment laws is not the type
of change the middle class really needs.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
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