BSHRM LEGISLATIVE UPDATE SPRING 2013

1. BSHRM LEGISLATIVE UPDATE SPRING 2013

3. 2012 Electoral College Results

4. 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 …

5. 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

6. Obama Also Won Overwhelming Union Support in 2012

7. Union Ground Game: Get Out the Vote

8. 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.

9. 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

10. Union Political Contributions

11. Select Union Contributions Members Expenditures Politics • AFL-CIO 11.6m $1.3 billion $282m • SEIU 1.9m 2.07 billion 320m • IBEW 655,621 4.6 billion 35m • Teamsters 1.3m 1.3 billion 54m • AFSCME 1.4m 1.3 billion 316m • UAW 380,000 2 billion 63m • NEA 3.1m 2.5 billion 238m • AFT 873,454 1.4 billion 138m • Change 4.3m 76 m 7m to Win

12. 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.

13. Union Political Spending

14. Union Political Spending

15. Romney’s Demographics Romney won… 53% Males 59% Whites 56% Over age 65 79% Evangelicals

16. 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%

17. Romney Won Independents • Independent voters voted Republican by 5 points (50% - 45%) • 13 points higher than 2008

18. Romney Scored Lowest Among Latino Voters Since Watergate YearDem 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%

19. Why is Control of White House Important? • Sets agenda. • Cabinet-level and senior-level appointments. • Regulatory agenda. • Vetoes legislation.

20. 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

21. 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.

22. House Republicans

23. House Results • Republicans – 234 seats (loss of 9) • Democrats – 201 seats (gain of 9)

24. 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.

25. 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.

26. What’s Next in Congress For Employers?

27. GRIDLOCK

28. 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”

29. 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.”

30. More Government Regulations

33. 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”

34. Wage and Hour Claims Have Higher Awards Than Other Employment Claims *“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

35. 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

36. 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

37. “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

38. “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.

39. 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

40. 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

41. 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?

42. New State Laws Prohibiting Requests for Social Media Passwords

43. New State Laws Prohibiting Requests for Social Media Passwords

44. This Just In

45. 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

46. 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

47. 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.

48. 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.

49. BSHRM LEGISLATIVE UPDATE SPRING 2013