[Congressional Record (Bound Edition), Volume 154 (2008), Part 9]
[Senate]
[Pages 12706-12707]
[From the U.S. 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 
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

[[Page 12707]]

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 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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