As predicted in our November 15 WorkCite article, on November 17, 2010, the Senate voted on a Democratic motion to limit debate on the pending Paycheck Fairness Act (Senate Bill No. 3722). The vote failed 58-41, effectively killing the bill for this term of Congress. Democratic Senator Nelson of Nebraska voted no. Republican Senator Murkowski of Alaska did not vote. Since cloture requires an affirmative vote of 60, failure to vote counted as a no vote.
Paycheck Fairness had been the centerpiece of Senator Majority Leader Reid’s plans for an active and “productive” lame duck session. Although lame duck sessions are historically limited to routine matters, Senate Democratic leadership had queued up a number of bills with a clear hope, if not expectation, of continuing to implement an aggressive agenda. Paycheck Fairness was considered especially dangerous, since it had been inaccurately promoted as a women’s bill that addressed the income gap between men and women. It also seemed to have much broader support than the proposed Employee Free Choice Act (EFCA).
Proponents focused on Republican Senators Olympia Snowe (Maine), Kay Bailey Hutchinson (Texas) and Susan Collins (Maine). These senators previously supported the similarly promoted Lily Ledbetter Act, and if even one had switched, the results could have been far different. Fortunately, the actual details of the bill and the breadth of business opposition made a difference. The level of frustration over this loss was telegraphed by the strongly worded press releases issued by both the White House and the Secretary of Labor. Their dismay probably includes both the failure of the bill and what it signals for the activist agenda in this lame duck session.
Not to be dismissed lightly is the decision by Senator Nelson to “cross the aisle.” He had come under severe criticism at his home state for his stimulus vote and for other party line votes in the past session. No doubt these criticisms had their effect, especially in light of Nelson’s expected 2012 reelection bid and the 2010 electoral tsunami that swept a number of Democratic (and Republican) Senators from senatorial ranks.
Both in the lame duck session and in future Congresses, legislative attempts will continue to be made to advance an agenda that is anti-employer, although with more of a low-key tone and with compromises that seek to separate liberals and moderates from Republican ranks. Businesses must continue to be vigilant and pro-active, but they can do so with increased confidence that their expressed concerns are being heard.
For further inquiries regarding other pending legislation in Congress or for compliance questions regarding your current compensation structure and policies, please contact the author or any other member of McGuireWoods’ Labor & Employment Team.