View Compliance Alert archives

<em>Compliance Alert</em> - Public Sector

 

April 7, 2010

The Proposed Public Safety Employer-Employee Cooperation Act: What It Is and What It Might Mean

The Public Safety Employer-Employee Cooperation Act of 2009 (the proposal), proposed federal legislation that would require collective bargaining between public safety personnel and state and local governments, has been introduced in the House of Representatives (H.R. 413) by Representative Dale Kildee (D-MI) and 204 cosponsors and in the Senate (S. 1611) by Senator Judd Gregg (R-NH) and 20 cosponsors* and has been the subject of recent hearings. The first section of the bill declares that Federal legislation is determined to be necessary to achieve a uniform policy of cooperation between public safety employers and employees because of a national interest in meeting the needs of interstate commerce and responding to emergencies, such as terrorist attacks and natural disasters.

While passage is far from certain at this point, because of the significant impact such legislation would have on the conduct of business in many states, The Segal Company has prepared this Compliance Alert to summarize the proposed legislation and to provide an update on its current status so that interested parties can begin to consider the issues.

Overview of the Proposed Act (House Bill)

The proposal would apply to any state, political subdivision of a state, the District of Columbia and any territory or possession of the United States that employs public safety officers. However, political subdivisions with populations of less than 5,000 or that employ fewer than 25 full-time employees could be exempted by state law. A public safety officer is defined as any law enforcement officer, firefighter or emergency medical services personnel, except those in a permanent supervisory or management position.

Under the proposal, the laws of every state would be required to:

  • Grant public safety officers the right to form and join a labor organization;
  • Require employers of public safety officers to recognize the labor organization as the exclusive bargaining representative and put bargaining agreements in writing;
  • Provide for bargaining over hours, wages and terms and conditions of employment except for pension and retirement benefits;
  • Include a resolution mechanism at impasse, such as mediation or arbitration; and
  • Enforce these rights and responsibilities through state courts.

Compliance with the proposal would be enforced by the Federal Labor Relations Authority (FLRA), the agency that currently governs federal labor relations. As an initial matter after enactment, the FLRA would determine whether each state is in substantial compliance with the proposal. If a state is not in compliance, the FLRA would issue regulations to enforce the proposal's requirements.

Specifically, in non-compliant states, the FLRA would be authorized to issue regulations that detail how the state must:

  • Determine the appropriateness of units for labor organization representation;
  • Supervise and conduct elections within a labor organization;
  • Enforce the duty to bargain in good faith;
  • Conduct hearings and resolve complaints of unfair labor practices;
  • Resolve exceptions to arbitration awards;
  • Protect the rights of public safety officers to form, join or assist a labor organization;
  • Direct states to comply with the proposal; and
  • Take any other actions necessary and appropriate to enforce the proposal.

If a state does not comply with the regulations, the FLRA could request an enforcement order from the federal courts and, if the FLRA has not requested an enforcement order, interested parties could file suit. In states where some groups of public safety officers have rights and responsibilities substantially similar to those provided by the proposal and some do not, the state's laws would continue to apply to the former group and the FLRA regulations would apply only to the latter group.

The legislative language specifically provides that the proposal is not intended to preempt or invalidate existing state laws that ensure greater or comparable rights and responsibilities as set forth in the proposal, nor is it intended to invalidate any state law prohibiting labor agreements that require union membership or payment of union fees as a condition of employment. Additionally, the proposal is not intended to invalidate collective bargaining agreements in effect before enactment.

Finally, the proposal would prohibit public safety officers, their employers and labor organizations from engaging in a strike or lockout.

Differences in the Senate Bill

The Senate version of the bill contains a few key differences from the House version. The Senate version would expand the prohibition on strikes and lockouts, described above, to include other similar bargaining strategies, such as a sickout, work slowdown or any other action that would disrupt the delivery of emergency services. In addition, the Senate bill would exempt health benefits, as well as pension and retirement benefits, from being mandatory subjects of bargaining.

Outlook for Passage

On March 10, 2010, the Health, Employment, Labor and Pensions subcommittee of the House Committee on Education and Labor held a hearing to examine this legislation. At the hearing, the proposal was supported by representatives of police and firefighters unions among others, and was opposed by representatives of cities and other local governments. This hearing is the first action on the House bill since it was introduced in January 2009, which may be a sign that legislators have renewed interest in moving the bill through Congress. There has been no action on the Senate bill since it was introduced in August 2009. The likelihood that the proposal will become law is unknown at this time, as is any timeline for further legislative action on the bills, and even if enacted, court challenges on constitutional grounds should be expected.

Potential Impact of the Proposal

If the proposal becomes law, the FLRA is directed, within 180 days of enactment, to determine whether each state's laws substantially comply with the proposal's requirements. Then, the FLRA must issue regulations to enforce the Act within one year of enactment. Those regulations would apply to states not in compliance with the proposal, but not until at least two years after enactment.

Public employers that currently do not collectively bargain with their public safety officers would be the group most affected by this legislation. This group may want to consider gathering information that would be helpful for collective bargaining, such as comparative data on mandatory terms of bargaining under the proposal (e.g., hours, wages and terms and conditions of employment), and educating key stakeholders on the bargaining process.

The Segal Company will continue to monitor the status of this potentially far-reaching legislation and keep public jurisdictions informed of any developments that may occur.

●  ●  ●

As with all legal matters involving the interpretation or application of laws and regulations, readers should rely on their attorneys for authoritative advice if the Public Safety Employer-Employee Cooperation Act of 2009 becomes law. Segal can be retained to determine the potential impact of this legislation. If you have questions about the Act, contact your Segal consultant or one of the following experts:

*
Visit the Government Printing Office Web site for the text of both bills: H.R. 413 and S. 1611. (Click on the following text to return to the Compliance Alert.)

Compliance Alert, The Segal Company's periodic electronic newsletter summarizing important developments affecting benefit plan compliance and related issues, is for informational purposes only. It is not intended to provide authoritative guidance. On all issues involving the interpretation or application of laws and regulations, readers should rely on their attorneys for legal advice.

View Compliance Alert archives