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“EUROPEANIZING U.S. LABOR AND EMPLOYMENT LAW” mentioning the U.S. Dept of Labor was published in the Senate section on pages S5733-S5735 on June 18, 2008.
The publication is reproduced in full below:
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 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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