Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In the early morning of March 27, the Senate passed its version of a budget resolution by a vote of 52-46 after a marathon session of votes on numerous amendments. The so-called "Vote-a-Rama" included votes on measures that likely have no chance of advancing, but serve as political talking points in the months ahead and for the 2016 congressional and presidential elections. The Senate budget resolution process provides Senators an opportunity to secure votes on their amendments with very limited debate so long as the amendment somehow relates to the budget. The marathon voting session can be used to force lawmakers to publically take a position on many touchy issues. The official voting record often becomes a sword or shield come campaign season.
Labor, employment and benefits-related amendments were considered before the chamber officially adjourned at 4:24 a.m. on Friday. The passage of some of these amendments related to paid sick leave and pregnancy accommodation suggest that momentum may be building for their bipartisan support.
The day after the U.S. Supreme Court issued its pregnancy accommodated opinion in Young v. UPS, the Senate unanimously approved Senate Amendment (S. Amdt.) 632, which would provide funds to support efforts to prevent employment discrimination against pregnant workers. On the Senate floor, amendment co-sponsor Robert Casey (D-PA) commented:
I am honored to be working on this amendment with Senator Shaheen and Senator Murray. This amendment will create a deficit-neutral reserve fund to support efforts to prevent employment discrimination against pregnant workers. In the United States today, for so many years, we have had a standard set forth in the Americans with Disabilities Act, reasonable accommodations for those with disabilities. The same should apply to pregnant workers. . . . We need a standard so employees know what their rights are and so employers can follow the law.
Sen. Jeanne Shaheen (D-NH) added:
. . . this is about ensuring that women are not discriminated against because they want to have children. This is making sure that women don't have to choose between their jobs and their families. It is about ensuring that all women can be reassured that if they are pregnant, their employer has to provide reasonable accommodations. I hope my colleagues will vote for this amendment.
By a 61–39 vote, senators approved an amendment (S. Amdt. 798) that would promote efforts to allow employees to earn paid sick time. Specifically, the amendment would authorize the Chairman of the Committee on the Budget of the Senate to:
revise the allocations of a committee or committees, aggregates, and other appropriate levels in this resolution for one or more bills, joint resolutions, amendments, amendments between the Houses, motions, or conference reports relating to efforts to improve workplace benefits and reduce health care costs, which may include measures to allow Americans to earn paid sick time to address their own health needs and the health needs of their families, and to promote equal employment opportunities, by the amounts provided in such legislation for those purposes, provided that such legislation would not increase the deficit over either the period of the total of fiscal years 2016 through 2020 or the period of the total of fiscal years 2016 through 2025.
Two equal pay-related measures were introduced, only one of which was successful. Sen. Barbara Mikulski (D-MD) offered S. Amdt. 362, a version of the Paycheck Fairness Act. Among other things, the Paycheck Fairness Act would significantly expand the amount of damages available in an equal pay case, limit an employer's affirmative defense in such cases, and prevent retaliation against employees who share salary information. The measure failed by a vote of 45-54. Sen. Mikulski re-introduced the measure along with Rep. Rosa DeLauro (D-CT) a day later (H.R. 1619, S. 862).
An amendment offered by Sen. Deb Fischer (R-NE), however, was approved in a 56-43 vote. Amendment 409 would establish a reserve fund "relating to promoting equal pay, which may include preventing discrimination on the basis of sex and preventing retaliation against employees for seeking or discussing wage information."
Predictably, an amendment (S. Amdt. 881) offered by Sen. Bernie Sanders (I-VT) to raise the federal minimum wage failed by a vote of 48-52.
The Senate did approve 57-43 an amendment (S. Amdt. 1063) that would ensure all legally married same-sex spouses have equal access to Social Security and veterans benefits. This amendment was offered by Sen. Brian Schatz (D-HI).
Project Labor Agreements
In a narrow 51-49 vote, the Senate approved an amendment (S. Amdt 665) that prohibits the awarding of construction contracts "based on awardees entering or not entering into agreements with labor organizations." On the Senate floor, Sponsor Jeff Flake (R-AZ) said:
...in 2009, the President signed Executive Order 13502, which states that it is the policy of the Federal Government to encourage executive agencies to consider requiring the use of PLAs, or project labor agreements, in connection with large-scale construction projects. This Executive order did not mandate the use of PLAs. However, some Federal agencies have interpreted that order to require it, and so all this amendment does is take it back to what the law intended--that the Federal Government is neutral with regard to the awarding of contracts, allowing the free market to work its will, and deliver to taxpayers the best possible product at the best possible price. I urge adoption of the amendment and ask for the yeas and nays.
Definition of "Full Time"
The Senate unanimously agreed to Sen. Susan Collins' (R-ME) amendment (S. Amdt. 442), which seeks to "establish a deficit-neutral reserve fund to restore a sensible definition of full-time employee for purposes of the Patient Protection and Affordable Care Act." Currently, for the employer mandate purposes, an employee is deemed "full time" if he or she works an average of 30 hours per week, not the customary 40 hours. This issue has been a bone of contention for some time, and will likely be raised again.
An amendment that would have prevented companies from getting tax benefits for moving jobs overseas and benefiting from tax inversions, and would have provided a tax credit for in-sourcing, was rejected by a 46-54 vote. This amendment (S. Amdt. 523) was offered by Sen. Debbie Stabenow.
Although all of these amendments can be seen as “message” amendments to promote priorities with an eye to the 2016 elections, they are nonetheless telling. Notably, the paid sick leave amendment passed with bipartisan support, and the Republican alternative to the Paycheck Fairness Act was offered and approved. While the paid sick leave amendment may not make it into the final Congressional Budget, states and local initiatives to mandate paid sick leave appear to be accelerating. And while the minimum wage hike was rejected, it may spur additional state and local efforts to boost wages. In essence, both Democrats and Republicans made their labor and employment priories clear.
On March 25, the House passed its version of the budget resolution. The two chambers will now work to reconcile their resolutions.