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National Legislation

nationalDespite the seeming gridlock on the Hill, congressional staff continue to do an incredible amount of work out of the public eye to line up bills for completion by the end of the year.  A good example of this is the Child Protection Improvements Act (CPIA).  CPIA would make the FBI's fingerprint-based background checks available to organizations serving vulnerable populations -- i.e. children, the elderly, and individuals with disabilities - for employee screening purposes. 

 As mentioned in past newsletters regarding this subject, NCISS/Lobbyit explored the idea of adding security service personnel to CPIA, consonant with Senator Toomey's Security Officer Screening Improvements Act (SOSIA) - legislation enabling employers of security officers to obtain FBI background checks on their officers where FBI background checks are not performed by relevant state authorities.

 When last queried on the topic, the Senate Judiciary Committee indicated that it had not received Member inquiries about CPIA, and had no action planned.  This situation changed in the interim, however, and NCISS learned that Senate Judiciary planned to vote on CPIA soon after their return to DC in the opening of September.

 CPIA passed the House earlier in the year.  If the Senate were to amend CPIA to include security officers, the different versions of the bill would have to be "conferenced" between the two chambers, or the House would have to pass the modified version.

 Based on conversations NCISS had with Senator Toomey's and Senator Hatch's offices (Hatch being the primary Senate GOP sponsor of CPIA), we learned that neither the committee nor the Members' offices had any stomach to alter CPIA in the Senate.

 That CPIA was slated for action in the Senate, however (likely paving the way for passage in 2017), does present a path forward for SOSIA or SOSIA-like legislation in the Senate Judiciary Committee.  

Chairman Grassley's prior objection to CPIA based on concerns about overloading the FBI (a concern applied to SOSIA, as well) would be nullified by CPIA's passage through the committee under Grassley's leadership. 

 As such, Senate Judiciary's passage of CPIA (occurring on Sep. 7) provides an opportunity for NCISS to work to move SOSIA forward in the committee.

 In the month of September, NCISS will be sitting down with Chairman Grassley's new counsel on the issue to fully explore how we might accomplish this goal.

Legislation Updates

S. 395 - GPS Act  - Representative Michael T. McCaul (R-TX) introduced the One in, One out Act in the House on January 24, 2017. On February 8, 2017, the bill was referred to the Subcommittee on Regulatory Reform, Commercial and Antitrust Law. The bill currently has 13 cosponsors. There have not yet been any amendments to the bill.

 This bill prohibits a federal agency from issuing a rule that imposes a cost or responsibility on a nongovernmental person or a state or local government unless: (1) such agency has repealed or revised one or more related rules in a way that reduces costs to the regulated entities, and (2) the cost of the new rule is less than or equal to the cost of the rules being repealed or revised.

H.R. 387 - Email Privacy Act -  Representative Kevin Yoder (R-KS03) introduced the Email Privacy Act in the House on January 9, 2017. On February 7, 2017, the bill was received in the Senate and referred to the Committee on Judiciary. The bill currently has 138 cosponsors. 

A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication that is in electronic storage with or otherwise stored, held, or maintained by that service only if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) that:

1)      is issued by a court of competent jurisdiction;

2)      may indicate the date by which the provider must make the disclosure to the governmental entity.

3)      the bill is applicable with respect to any wire or electronic communication that is stored, held, or maintained by the provider.

H.R. 923 - To Repeal the Cybersecurity Act of 2015 - Representative Justin Amash (R-MI-3) introduced the To Repeal the Cybersecurity Act of 2015 on February 7, 2017. On April 25th, 2017, the bill was referred to the Subcommittee on Research and Technology. The bill currently has 5 cosponsors.

The Cybersecurity Act of 2015 (division N of Public Law 114-113) and the amendments made by such Act are repealed, and the provisions of law amended by such Act are hereby restored as if such Act had not been enacted into law.

H.R. 957 F.A.I.R. Surveillance Act of 2017 - Representative Hakeem Jeffries (D-NY-8) introduced the Fourth Amendment Integrity Restoration (F.A.I.R.) Surveillance Act of 2017 on February 7, 2017. On March 9, 2017, the bill was referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. The bill currently has 2 cosponsors. 

This bill specifies that an agreement between a federal and state or local law enforcement agency regarding the acquisition or use of a cell simulator device must require such state or local law enforcement agency to use the device in compliance with the federal agency's guidance and policies.

The term "cell simulator device" means a device that:

1)      simulates a cell tower to provide an electronic communication service, or

2)      functions as a cell tower to locate cellular devices or identify their unique identifiers

S. 631 Drone Aircraft Privacy and Transparency Act
H.R. 1526 - Drone Aircraft Privacy and Transparency Act of 2017 -
Senator Edward Markey introduced the Drone Aircraft Privacy and Transparency Act in the Senate on March 3, 2017. On March 15, 2017, the bill was referred to the Committee on Commerce, Science, and Transportation. The bill currently has 0 cosponsors.

This bill amends the FAA Modernization and Reform Act of 2012 to provide guidance and limitations regarding the integration of unmanned aircraft systems into United States airspace, and for other purposes. A governmental entity (as defined in section 2711 of title 18, United States Code) may not use an unmanned aircraft system or request information or data collected by another person using an unmanned aircraft system for protective activities, or for law enforcement or intelligence purposes, except pursuant to a warrant.

 August Update

 S. 395 - GPS Act  - Sen. Ron Wyden (D-OR) introduced the GPS Act on February 15th, 2017. On the day it was introduced the bill was referred to the Committee on the Judiciary. The bill currently does not have any cosponsors. The purpose of the GPS Act is to amend title 18, United States Code, to specify the circumstances in which a person may acquire geolocation information and for other purposes. The bill states that it shall be unlawful to intentionally intercept the geolocation information pertaining to another person, or disclose to another person if the information was gained in a lawful way. Exceptions include: children, public information, emergency information, theft or fraud. Any person that violates the potential law can be fined or imprisoned not more than five years.  Related Bills: H.R. 1062 - GPS Act 

H.R. 674 - One in, One out Act - Representative Michael T. McCaul (R-TX) introduced the One in, One out Act in the House on January 24, 2017. On February 8, 2017, the bill was referred to the Subcommittee on Regulatory Reform, Commercial and Antitrust Law. The bill currently has 13 cosponsors. There have not yet been any amendments to the bill.    This bill prohibits a federal agency from issuing a rule that imposes a cost or responsibility on a nongovernmental person or a state or local government unless: (1) such agency has repealed or revised one or more related rules in a way that reduces costs to the regulated entities, and (2) the cost of the new rule is less than or equal to the cost of the rules being repealed or revised.   H.R. 387 - Email Privacy Act - Representative Kevin Yoder (R-KS03) introduced the Email Privacy Act in the House on January 9, 2017. On February 7, 2017, the bill was received in the Senate and referred to the Committee on Judiciary. The bill currently has 138 cosponsors.     A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication that is in electronic storage with or otherwise stored, held, or maintained by that service only if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) that:   is issued by a court of competent jurisdiction;  may indicate the date by which the provider must make the disclosure to the governmental entity. the bill is applicable with respect to any wire or electronic communication that is stored, held, or maintained by the provider.

H.R. 923 - To Repeal the Cybersecurity Act of 2015 - Representative Justin Amash (R-MI-3) introduced the To Repeal the Cybersecurity Act of 2015 on February 7, 2017. On April 25th, 2017, the bill was referred to the Subcommittee on Research and Technology. The bill currently has 5 cosponsors.    The Cybersecurity Act of 2015 (division N of Public Law 114-113) and the amendments made by such Act are repealed, and the provisions of law amended by such Act are hereby restored as if such Act had not been enacted into law.   H.R. 957 F.A.I.R. Surveillance Act of 2017 - Representative Hakeem Jeffries (D-NY-8) introduced the Fourth Amendment Integrity Restoration (F.A.I.R.) Surveillance Act of 2017 on February 7, 2017. On March 9, 2017, the bill was referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. The bill currently has 2 cosponsors.  

This bill specifies that an agreement between a federal and state or local law enforcement agency regarding the acquisition or use of a cell simulator device must require such state or local law enforcement agency to use the device in compliance with the federal agency's guidance and policies.

 The term "cell simulator device" means a device that:  (1) simulates a cell tower to provide an electronic communication service, or (2) functions as a cell tower to locate cellular devices or identify their unique identifiers   S. 631 Drone Aircraft Privacy and Transparency Act - Senator Edward Markey introduced the Drone Aircraft Privacy and Transparency Act in the Senate on March 3, 2017. On March 15, 2017, the bill was referred to the Committee on Commerce, Science, and Transportation. The bill currently has 0 cosponsors. 

 This bill amends the FAA Modernization and Reform Act of 2012 to provide guidance and limitations regarding the integration of unmanned aircraft systems into United States airspace, and for other purposes. The Secretary of Transportation shall establish procedures to ensure that the integration of unmanned aircraft systems into the national airspace system is done in compliance with the privacy principles.

A governmental entity (as defined in section 2711 of title 18, United States Code) may not use an unmanned aircraft system or request information or data collected by another person using an unmanned aircraft system for protective activities, or for law enforcement or intelligence purposes, except pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction, or as permitted under the Foreign Intelligence Surveillance Act of 1978. Related Bills: H.R. 1526 - Drone Aircraft Privacy and Transparency Act of 2017   Labor Regulations and Related Legislation

 Department of Labor (DOL) Overtime Rule

 The Overtime Rule, enacted in May 2016 by the Obama administration, would have lifted long-standing exemptions and raised the pay threshold from $23,660 annually to $47,476, making 4.2 million more workers eligible for overtime compensation. Positions once considered executive, administrative or professional would be subject to overtime pay as well, and the pay threshold would be indexed to wage growth and updated once every three years.

 The overtime rule was blocked late in 2016 by an injunction from the U.S. District Court for the Eastern District of Texas, which was soon followed by an appeal by the Department of Labor.

 On June 30, 2017, the DOL dropped its defense of the rule, signaling that the Trump Administration had no intent to fight the injunction, effectively killing the rule.

 While this is extremely welcome news for employers, we aren't out of the woods yet. Three days earlier, the DOL made clear its intent to rewrite the rules with lower salary thresholds. Additionally, in the event the Fifth Circuit Court of Appeals reverses the District Court injunction (pursuant to legal action by outside parties seeking to overturn the injunction), the Obama-era final rule could go into effect immediately, meaning employers who are not in compliance would be subject to penalties, possibly retroactively

 Obviously, the committees of jurisdiction in Congress are watching this issue closely.  Neither House nor Senate staff want to fix this legislatively (which would be very difficult), and are hoping that the Administration decides on a manageable path forward for employers.

 

In the event the 5th Circuit affirms the rule, however, Congress may be forced to step in to blunt it with legislation.

Persuader Rule

June also brought welcome news on the Persuader Rule, with the Trump Administration announcing early in the month that it was taking steps to reverse an Obama-era rule requiring companies to disclose their contacts with outside consultants on how to respond to unionizing efforts. If readers will recall, the Persuader Rule, finalized in March 2016, made significant changes to the reporting and disclosure requirements for employers, attorneys and other experts under the Labor Management Reporting and Disclosure Act.

The rule drastically limited the "advice" exemption, in which employers and the experts they hire were exempt from the reporting requirements if the experts did not directly communicate with employees, essentially only providing legal advice to the employer on labor relations and the intricate laws governing those interactions.

In late 2016, a Federal court in Texas issued an injunction on the rule, preventing its implementation.  In June, DOL issued a notice of proposed rule-making to rescind the Obama administration's persuader rule, and asked the Texas court to stay further proceedings in the rule until the administrative actions were complete.

In other words, for the time being, the Persuader Rule is dead. Workforce Democracy Act (S1350/HR 2776) -- Rolls back the "ambush" election rulemaking.

 As NCISS members well know, we have long been tracking the "ambush" rule and lobbying to have it amended or stricken altogether.

 The National Labor Relation Board's (NLRB)s ambush election rule became effective on April 14, 2015. The rule eliminates the minimum 25-day period traditionally required before an election can be held, dramatically shortening the time period for workplace elections over whether to form a union, preventing workers from getting full and complete information from both unions and employers about a critical workplace decision.

Other important aspects of the rule include:

 Employers must also turn over employees' personal information to unions, such as home phone numbers, e-mail addresses, shift times and locations, and home addresses.

Employers must file a formal Statement of Position within seven days of the notice of hearing being served.  Employers forfeit the legal right to pursue issues not included in that statement.

Issues of voter eligibility can be decided AFTER an election has taken place. Employers' automatic right to a post-election Board review is eliminated.  A union has months to give workers its side of the story, and can then spring an ambush election when it feels the time is ripe.

 Elections can be held in as few as 10 days from the filing of the petition, instead of the pervious average of 38 days.

Employers may have very little notice of an election and almost no time to discuss these issues with their workers.

Small businesses, without on-staff labor counsel, are particularly vulnerable to ambush elections because they may be unaware of the complicated laws related to union elections.

S1350/HR 2776 would fix the Ambush rule through various means, including: Guaranteeing workers the ability to make a fully informed decision in a union election. No union election will be held in less than 35 days. Workers will have a chance to hear both sides of the debate and important issues that can determine how a worker votes will be decided before ballots are cast.

Ensuring employers are able to participate in a fair union election process. The bill provides employers at least 14 days to prepare their case to present before a NLRB election officer and protects their right to raise additional concerns throughout the pre-election hearing.

 Reasserting the board's responsibility to address critical issues before a union is allowed to represent workers. The board must determine the appropriate group of employees to include in the union before the union is certified, as well as address any questions of voter eligibility.

 Reinstating the traditional standard for determining which employees will vote in the union election, restoring a standard that was developed through years of careful consideration and congressional guidance.

 Representation Fairness Restoration Act (S.1217/HR2629) -- Reverses the ruling in the Specialty Healthcare decision and re-instate the standard for determining bargaining units in place for over a half a century.

 Another topic with which NCISS members are familiar is the Specialty Healthcare decision, or the NLRB decision allowing for the formation of "micro-unions."

To refresh the collective memory concerning micro-units, when filing an election petition with the NLRB, a union must identify a legally appropriate group of employees (i.e., the "bargaining unit") it seeks to organize. Historically, all-inclusive "wall-to-wall units" (e.g., production and maintenance employee units) were favored by the NLRB.

Micro-units, however, are fractional. Generally, they decrease the size of the unit and make organizing easier. For example, a union could believe it has ample support in a manufacturing plant among maintenance employees, but not production employees, so it could seek to only represent the maintenance workers - in which case the employer would be left dealing with a labor agreement only applying to half of the workforce and likely resulting in inequities among its employees.

In Specialty Healthcare, the NLRB announced a standard that in almost all instances results in approval of a union requested bargaining unit, unless the employer can show that an "overwhelming community-of-interest" exists between the requested unit and some other part of its workforce.  This standard has proven difficult, if not impossible, for employers to meet, and the Board has pushed the standard into retail, manufacturing, and even wineries.

S.1217 and its House companion, HR 2629, would seek to reinstate the previous balance by:

 Rolling back the NLRB's Specialty Healthcare decision, replacing the board's micro-union scheme with policies that encourage unity and harmony in the workplace; and

 Reinstating the traditional standard for determining the appropriate group of employees that will vote in a union election. Among other criteria, the board is required to look at similarity of wages, skills, working conditions, and job functions when determining which unit of employees is appropriate.

Congressional Outlook

With respect to all the legislation covered above, Congress is largely in a holding pater while the Trump Administration decides if and how to proceed. 

In the Senate, 60 votes are still needed to move the vast majority of legislation, meaning that the legislative stalemate will continue unless the GOP can keep its caucus together, and pick off 8 additional Democrats.

 In a nod to reality, Senate Republicans have little interest in trying to move these bills, and are hoping administrative action will negate the need for a legislative fix.

If, however, the Trump Administration does not act quickly enough, the GOP will likely push to move these bills in a package as the next election approaches, seeking to pick off the votes of Dems in Republican-leaning states and districts, making it a tough vote for some vulnerable Democrats.

 Otherwise, there is a great deal of enthusiasm in the GOP caucus to get these bills done in the 115th Congress - but only if they can do it successfully, which at this point is less than clear.