Now that the House Education and Labor Committee has approved a bill that would change the definition of “supervisor” in federal law, it is almost certain to gain House approval as soon it is put on the calendar for a floor vote.

Under House rules, the majority gets pretty much anything it wants. The party in power can limit the number of amendments that can be considered and can shape the floor proceedings at will. The Republicans did it for 12 years, and the Democrats have been doing it since they took over Congress in January.

So, there’s really no suspense in the House over the bill, which would strike the words “assign” and “responsibility to direct” from the definition of supervisor in the National Labor Relations Act. It also would insert language that states that an employee must be in a supervisory role at least 50 percent of the time.

The measure is a response by the Democratic majorities to a National Labor Relations Board decision last fall in a collection of cases known as “Kentucky River.” The board said that charge nurses are supervisors because they assign work, direct other employees and exercise independent judgment. An employee could be classified as a supervisor if he or she worked in that capacity as little as 10 percent to 15 percent of the time.

Organized labor is pushing back hard. They assert that the Republican-majority board is trying to undermine unions by limiting the number of people who can join them. Anyone in a supervisory position is prohibited from organizing.

The House has started the process with this bill, but, as occurred with legislation that would facilitate unionization, the real fireworks will occur in the Senate. The unionization bill, called the Employee Free Choice Act, received a hearing before the Senate Health, Education, Labor and Pensions Committee.

But then Sen. Edward Kennedy, D-Massachusetts and chairman of the committee, along with Senate Majority Leader Harry Reid, D-Nevada, decided to send the bill straight to the floor without a vote in the committee. Republicans cried foul, saying that Kennedy and Reid were truncating the legislative process in order to score political points with Democratic labor constituencies.

The Employee Free Choice Act was stopped by a Senate filibuster, with almost the entire Republican minority holding together in opposition. Now it looks as if another contentious labor law bill, this one focusing on overturning a Supreme Court decision on the statute of limitations in pay discrimination, has been placed on the Senate floor calendar without committee action.

The same fate may await the supervisor bill. I covered a Senate press conference on a separate issue the same day as the supervisor measure passed the House committee. Afterward, I had a chance to ask Kennedy about the prospects for the supervisor bill.

“I’m a very strong supporter of that legislation,” Kennedy said. “I would hope that we would hold that at the desk and address it.”

Kennedy may have been using Senate speak—“hold that at the desk”—to indicate that the House supervisor bill will go straight to the Senate floor and bypass committee action.

The Republicans likely will howl and try to stop it in its tracks. The filibuster strategy can be effective but it also comes with risks. Essentially, the GOP would be preventing an up-or-down vote on the bill.

Rep. Robert Andrews, D-New Jersey and author of the House bill, accepts Republican opposition but questions their tactics. “It must be hard to go home and explain to somebody why something didn’t come up for a vote,” Andrews said.

Republicans likely will argue that they’re stopping legislation that would dramatically change labor relations and is being rammed through by Democrats to pay back their union allies for financial and grass-roots help in winning the House and Senate last fall.

Both sides tend to overreach—or understate—when it comes to labor law bills. The Democrats say they are writing narrow legislation that corrects misguided court decisions. But they are also rewriting labor law that has been on the books for decades.

Republicans say that Democrats are acting on behalf of big labor bosses who trying to bolster declining union numbers. But there likely are millions of rank-and-file workers worried about their job prospects in a global economy who would like the kind of protection a union can afford and are concerned about the NLRB and Supreme Court decisions.

The two sides likely will never agree. What I don’t understand is why Democrats don’t try harder to enlist corporate support for their positions on labor law. Many companies allow a union to form when 50 percent of employees sign cards authorizing one—the so-called card-check process enshrined in the Employee Free Choice Act.

Instead of demonstrating that some businesses are on their side, they insist on duking it out with the Republicans on the floor of the Senate. It seems that more progress would be made by getting traditional GOP constituencies—big business—speaking out in favor of the labor law changes the Democrats are pushing.

Of course, the Republicans and allies like the Chamber of Commerce likely would trot out dozens of companies prepared to denounce the Democratic bills. It’s Washington, after all, where everyone is spoiling for a fight.

As you might imagine, the issue of immigration was a prominent topic at the first National Summit on American Competitiveness in Washington on Tuesday, September 18. Here’s the story I posted for our News in Brief page:

Scholar Urges HR to Work with Schools (9/18/07)

I didn’t have space to get into immigration, so I’ll do that here. On the first panel of the day, there was an interesting exchange about raising visa limits for highly skilled immigrants.

A couple participants said that retaining more of the foreign science and technology students who study at our universities—and bringing high-tech professionals in from other countries—is critical for the future of the U.S. economy. 

At the very least, they want H-1B visa levels raised from a 65,000 annual cap to 115,000, as would have been done in the now-dormant Senate comprehensive immigration bill.

“We need to attract the best and the brightest,” said Chad Holliday Jr., chairman and CEO of DuPont. “We’re going to have to take a few risks on visas to get the best people in.”

Floyd Kvamme, a partner emeritus at Kleiner Perkins, a high-tech venture capital firm, called for H-1B visa policy to be addressed in a stand-alone bill. He also advocated for an increase in employment-based green cards.

He made a good point that the international students who earn their degrees from U.S. institutions and then are forced to go home might end up undermining U.S. prosperity.

“Now they’re real competitors,” he said.

It fell to Michael Porter, a Harvard Business School professor, to inject a dose of skepticism. He cautioned that throwing open the immigration gates isn’t a panacea. That approach needs to be leavened with other reforms.

“We can’t use that as a reason for not training our own people,” he said. “That takes the pressure off” improving the U.S. educational system.

Of course, the United States needs to welcome immigrants—especially those who are going to create the next Google or develop a cure for cancer or even build the next overpriced condominium complex in Arlington, Virginia.

But it would be refreshing if we could also focus on Americans who might be hurt in the process without resorting to conservative, or liberal, bromides about the dangers of the global economy.

We need politicians who are willing to approach issues in the way that Porter does—acknowledging both sides of the argument, offering some doubts and proposing solutions.

Too often on immigration, all we hear are the passionate advocates mixing it up with the passionate opponents. But the middle ground is where the real hard work is done.

Now that comprehensive immigration reform has likely died for the rest of this congressional session—through December 2008—we’re seeing various components of an overhaul finding their way into other legislation.

The preferred vehicle is appropriations bills. For instance, amendments that would require all federal contractors to use the government-run E-Verify electronic verification system, formerly known as Basic Pilot, have been attached to House bills to fund the Agriculture, Commerce, Labor and Transportation departments. Such a rider has been attached to both the House and Senate versions of the homeland security funding bill.

This week, a defense authorization bill in the Senate is likely to become the vehicle for legislation that would enable children of illegal immigrants to gain citizenship if they attend college or join the military. An agriculture worker bill also may come up soon.

While this activity is under way, another facet of immigration reform has yet to find traction. Technology companies are pushing to raise limits on H-1B visas and green cards for highly skilled workers. A bill may soon or emerge—or one that’s percolating may come to a boil and get attached to another piece of legislation.

Proponents are trying to encourage such action by allying with governors. Last week, Compete America, a coalition of technology companies and organizations, circulated a letter from 13 state CEOs calling for an increase in visa limits.

“We and our nation face a critical shortage of highly skilled professionals in math and science to fill current needs,” the governors wrote. “Until we are able to address this workforce shortage, we must recognize that foreign talent has a role to play in our ability to keep companies located in our state and country. [W]e urge congressional action this year that recognizes states’ immediate need to recruit and retain professionals in key sectors, while we continue to produce here at home the skilled workforce our companies need in the long-term.”

That’s certainly the case that businesses will make in a Capitol Hill press conference on September 18. A group called Immigration Voice will “highlight the importance of solving the current challenges due to employment-based green card backlogs faced by the U.S. employers and the highly skilled labor workforce,” states the media advisory.

I won’t be able to attend that event, because I’ll be at a Department of Commerce event where CEOs will likely make the same point during a panel on workforce challenges.

I hope I’ll get a chance to ask whether companies really face a job market that offers too few U.S. job applicants for high-tech positions. That may be true. But as an alum of Purdue University, I find it hard to believe sometimes.

Institutions like Purdue are churning out thousands of high-tech graduates every year. Granted, many of them are foreign students. And it seems silly to ship them back to their home countries instead of keeping them here.

So perhaps the problem is actually that companies can find enough American high-tech job applicants—but not ones who are as skilled as their foreign classmates.

Now, there’s a politically untenable argument. And I understand why most CEOs aren’t going to say that on the record, even if they think it.

A Google HR executive, however, came close, following a House subcommittee hearing in June on immigration reform. 

Laszlo Bock, Google’s vice president of people operations, highlighted the contributions made to the company by immigrants holding H-1B visas.  He made a strong case that they are smart, hardworking and are helping keep Google on the cutting edge.

In an interview after his testimony, however, Bock said that the problem Google is facing is not a depleted U.S. high-tech labor pool.

“We want to hire the best people, regardless of where they happen to be from,” he said. “They innovate. They create.”

And while those workers are pursuing the American Dream, they’re helping America win in the global economy in a way that perhaps U.S. students cannot at the moment—either because they’re less interested in technology and science or have less aptitude for it.

If that’s the case, it would be refreshing for corporate executives to say so forthrightly. Bock didn’t quite do that, but he at least answered the question with some nuance, instead of making boilerplate assertions about the lack of high-tech applicants in the U.S. labor market.

We’ll see what the executives at the September 18 event have to say—if I can get my question in.

An employer group seeking to delay new Department of Homeland Security immigration regulations has taken a page out of Martin Luther’s book.

When he disagreed with Catholic church practices, Luther tacked his 95 theses to the door of the Castle Church in Wittenberg, Germany, on October 31, 1546. His list of questions about ecclesiastical governance helped spur the Protestant Reformation.

The letter that the Essential Worker Immigration Coalition sent to DHS Secretary Michael Chertoff on August 27 has not yet had the same impact on secular government as Luther’s missive did on the church. But the group’s goal—to slow down implementation of a no-match letter rule that would force companies to fire employees if their work authorization is not confirmed within 90 days—got a boost when a San Francisco federal judge issued a temporary restraining order on the DHS regulation until an October 1 hearing.

The judge was responding to a suit brought by the AFL-CIO and the ACLU. But the EWIC must be happy with the result so far. And it gives the EWIC’s arguments against the rule, which are couched in the language it uses to frame its questions, some more airtime.

The EWIC is composed mostly of construction, landscaping, restaurant, food processing and hospitality companies and trade associations.

Thanks to this blog, I can list some of the provocative questions that I didn’t have room to include in this story that I wrote for the News in Brief section of our home page:

Halt of DHS No-Match Rule Provides Employers No I-9 Reprieve (9/5/07)
http://www.workforce.com/section/00/article/25/09/54.html

The EWIC says that it is providing the DHS with a list of frequently asked questions—or perhaps trying to overwhelm it with queries.

Some seem a bit silly. For instance:

• Should I stop hiring foreign-born applicants so I don’t have to worry about any of this? (Sure, if you want to be sued for civil rights violations.)

Some questions seem to be cries for help in sorting out what the new rule means on daily business operations:

• Should I have all my employees complete a new I-9 form?

• What do I do if I can’t find labor??? Beyond the short-term shock … what about the long term?

• If you don’t terminate, then what?

• DHS indicated it was going to first target employers with 10 or more no-match letters. How would that affect a company with 35 restaurants in 15 states? Does that mean that receiving 10 total letters for all 35 restaurants and their employees or would it mean any one restaurant location that receives 10 or more letters?

• Is an employer required to still pay an employee who has received a no-match letter while they are trying to resolve any discrepancy?

Some are questions that may have to be sorted out by the courts:

• Are DHS and the Social Security Administration sharing information on who receives the no-match letters? If so, pursuant to what authority?

• What is DHS’ authority for increasing civil penalties by 25 percent?

• What happens if a lower-level employee has knowledge of a worker’s unauthorized status, but doesn’t relay that information to the hiring authorities at the company and the company complies strictly with the safe harbor provisions? Is the company protected from liability?

• If an employer terminates an employee based on no-match information and it is later revealed that the problem was with the information stored in the database, is the employer protected from legal action from the terminated employee?

• Since large employers may have several dozen no-match numbers, what happens if these are not all resolved in 90 days?

As I’ve covered the Washington business lobby for the past couple years, it seems to me that it sometimes whines too much about legislation and regulations. After all, no matter what happens in the nation’s capital, profits keep soaring.

But in this case, it does look as if DHS should offer a better explanation of the practical effects of its rule. In fact, I’m curious: How will it affect your HR operations?

I look forward to your comments.