Serving as the Chair of the Education and the Workforce Committee’s Subcommittee on Health, Employment, Labor and Pensions and as a member of the Physicians’ Caucus and Health Caucus, Congressman David “Phil” Roe, M.D. (R-Tenn.) plays an important role in shaping labor and health care law in the United States. He also serves on the Veterans’ Affairs Committee’s Subcommittees on Health and Oversight and Investigations. Roe represents Tennessee’s First District, known for its beautiful scenery and landscapes.
An outspoken critic of the National Labor Relations Board (NLRB) and the Affordable Care Act (ACA), Dr. Roe seeks to restore fiscal responsibility and protect the principles of free enterprise. Recently, he shared his thoughts with NCA on a variety of topics affecting the private club industry.
Representative Phil Roe: First of all, thank you for the opportunity to respond to the National Club Association’s questions. I appreciate this opportunity and obviously understand that golf courses and country clubs are often small businesses and must now deal with deal with a variety of issues.
The economic downturn has made it difficult for clubs. Golf is like any other recreational activity in which people cut back on playing when money is tight, so I have seen clubs, both private and public, go through pretty tough times. As mayor of Johnson City, Tenn., I had an impact on the management of two golf courses, helping to solve those various issues that you deal with as a public official.
I also belong to a private club. Personally, I never complain about anything that my club board does. I go there strictly for relaxation, so I want to thank all the people who serve on club boards, both private and public across the country, because it’s like being on the PTA—you get nothing but complaints from the membership, you do a lot of work, and you don’t get paid.
The Affordable Care Act
Club Director: For many private club leaders, the Affordable Care Act (ACA) has been confusing, time-consuming, costly and frustrating. Many in the House of Representatives have actively worked to repeal the law—what is the likelihood of a repeal measure passing the Senate?
Roe: As long as the Senate is under Democratic control, the likelihood of repealing the Affordable Care Act is nil. Republicans may soon pass an alternative bill in the House, and if all goes well after the November election and Republicans take control of the Senate, the legislation could be taken up there as well.
Other issues that we are trying to solve as we’ve looked at this incredibly complicated bill, is how to lessen the effects on small businesses. The big self-insured plans and public plans have not gotten through scot-free, but they are certainly better off than the small business and the individual market—which the ACA was supposed to help.
CD: Many club leaders are looking for relief from some of the more onerous provisions of the ACA, such as the new definition of full-time employee as one who works 30 hours per week. You have worked to support H.R. 2575, Rep. Todd Young’s (R-Ind.) Save American Workers Act (the SAW Act), which would change the definition of a full-timer to 40 hours per week. What are its prospects in the Senate? What are some of the key reasons to change this definition?
Roe: Until now, a 30-hour workweek would never have been accepted as full-time employment. I am a former private-sector employer, and five 8-hour days is how we defined our operating hours. In the club business, workdays are much longer than that because you have both hourly and salaried employees, and in the peak hours, members are playing golf as soon as the sun rises.
The Save American Workers Act says full-time employment is a 40-hour workweek and I was proud to help Rep. Young pass this bill in the House. Certainly I would like to see the Senate take this up and would like to see the president sign this into law.
CD: Another major issue associated with the ACA and private clubs is the threshold number of full-time employees that causes a club to fall under the law. With the threshold set at 50, some clubs are considering cutting employees’ hours, terminating workers to get under the number, or avoiding hiring new employees. NCA and our allies support H.R. 2577 that would increase the threshold number of full-timers from 50 to 100. How will you and your subcommittee be responding to this measure?
Roe: I would support anything that elevates the 50-employee threshold to 100, including HR 2577, if we can’t overturn the Affordable Care Act. I don’t think the Senate, however, would do that.
CD: Finally, a significant issue for many private clubs is the ACA’s treatment of seasonal employees. One part of the law requires clubs to count seasonal workers if they work more than four months, while another part of the law requires them to count seasonal workers if they work more than six months. Most importantly, the rules could force some clubs to offer insurance to these employees though most clubs have never offered such a benefit to seasonal workers in the past. When will we see legislation passed to help sync these two timeframes to ease the burden on seasonal employers? How much bipartisan support from Congress can we expect for this type of “reasonable change” to the ACA law?
Roe: I think there will be changes to the ACA. Many of these plans, rules and requirements to seasonal workers are just unworkable. As those regulations continue to show up, I’m certainly willing to fight them. As the Chair of the subcommittee on health, employment, labor and pensions I’ve held several hearings around the country on these issues. Although we have not had clubs at these hearings, we should have them at our next hearings on the effects of the Affordable Care Act.
Employment and Labor Issues
CD: Private club leaders are also concerned about other developments that affect their bottom lines, such as an increase to the federal minimum wage. Though most private clubs pay their employees far more than minimum wage, there will be an upward push on other employees’ wages with a minimum wage increase. This is on top of added costs from the ACA and local mandates for newly enacted sick-time pay requirements. How will your subcommittee react to the minimum wage legislation?
Roe: The minimum wage has been a hot topic for small business, and the CBO shows it would not increase generate more jobs or increase private sector hiring. I don’t think raising the minimum wage will increase employment, and right now the unemployment rate is stubbornly stuck where it is.
Raising the minimum wage will help a few people, but will harm a lot more. Also, the minimum wage is an entry-level wage. Businesses I’ve talked to have certainly indicated they’re against it. The administration simply doesn’t understand if you rapidly raise the minimum wage to $10.10 an hour, the person already making $10.10 an hour can reasonably expect to have his wages raised as well, so it’s going to effect every worker, not just the ones making minimum wage. As you said, that’s obviously a big issue for clubs.
CD: There has also been a strong push by federal agencies to enact new policies outside of the traditional legislative route. The most recent example from the Department of Labor (DOL) proposes to modify the regulations relating to the Fair Labor Standards Act’s exemptions from overtime pay. As an employment and labor issue that will affect many industries, how will your subcommittee respond to this action?
Roe: This is another issue I’ve discussed with many mid-sized and big businesses. They tell me the DOL’s modifications will drastically change how they view and operate their businesses, so NCA can certainly count on our subcommittee to object to what they’ve just done.
CD: An independent federal agency that has gotten a lot of attention over the last few years is the National Labor Relations Board (NLRB). In your opinion, has the NLRB stepped outside of its traditional role and become more of a union advocacy tool rather than an impartial reviewer of labor law?
Roe: The NLRB should act as a referee, not an advocate for employees. I’m an old athlete, and all I asked when I played on the road was just to get a fair call. I don’t expect to get a better call at home, but I expect them to be fair. The NLRB should be refereeing between employers and employees—if the employees choose to vote for a union through a secret ballot—nothing complicated about that. Right now, you are not seeing that come out of the NLRB. Most recently, I was disappointed with the Northwestern University decision to have the football players vote on whether they want to unionize or not. This is just another example of the NLRB and its regional offices stepping outside its traditional role, and that has done nothing but hurt small businesses like clubs.
CD: One of the more unsettling decisions to come from the NLRB was the Specialty Healthcare case, where they ruled that union organizers might select a smaller subset of employees to unionize. For clubs, this could mean that poolside wait-staff could be unionized while dining room wait-staff might not. NCA has been working with our allies on the Hill to reverse this ruling through legislation—H.R. 2347. How do you feel this ruling will affect small businesses such as clubs?
Roe: The ruling you’re discussing, the micro union decision, is critical. One of the most important parts of a union election—and any election—is a fair secret ballot, so an employee, employer or union can’t adversely affect the employee. It’s how I was elected to Congress, how the president was elected and how the union officials are elected. Without protecting that sacred vote, and ensuring that both sides have an equal playing field to present their case to an appropriate employee unit (rather than some micro-unit), a union election just isn’t fair for employers or employees. I will continue to fight the actions of the NLRB as it continues to offer these unfortunate and scary ruling and rules.
CD: Even more troubling is the NLRB’s recent re-issuance of the Ambush Election Rule, which will allow union elections to take place within 10-21 days from the date the union organizers file their election petition. It would also require employers to provide personal employee information to union organizers without the employees’ consent. In the past, NCA and our allies on the Coalition for a Democratic Workplace (CDW) have worked with you to stop this regulation. When can we expect to see action in this area?
Roe: The ambush election rule is one of the most egregious. Thirty-eight days is the median time for which unions win the majority of ballots—that’s less than six weeks. The ambush rule will allow these elections to occur in as little as 10 days. I can’t imagine that a small club, or in my case, a small medical practice, could find adequate attorneys to look at their cases within a week. That’s how long they would have to get a labor attorney—an expert in an incredibly complicated law—to be able to represent them fairly at the NLRB. It can’t be done, and the NLRB, I think, knows this to help union organizers. The Workforce Democracy and Fairness Act, H.R. 4320, will completely stop the Ambush Election Rule.
H.R. 4321, the Employee Privacy Protection Act, has been introduced to stop the dissemination of workers’ private information without their permission. We just want it fair. We want the employer and the employee to be treated fairly, to both understand what they are voting for and then to freely vote in a secret ballot whether they do or don’t want a union. Unions are absolutely legal in this country, and in days gone by, they were needed. Right now, we need a fair NLRB, which I don’t think we have. We need a fair process that gives everyone the time to get all the information because these elections have long-term ramifications to your paycheck, to how you work, and to the relationship you have with your employer.
CD: Private clubs are also concerned with a proposed DOL regulations dealing with employers and their attorneys during a union organizing campaign. The so-called Persuader Rule will force clubs and their legal counsel to disclose their activities to DOL if the attorneys provide any advice on how to deal with a union organizing campaign. What are your thoughts on this rule?
Roe: Attorneys are extremely concerned about the Persuader Rule because of attorney-client privilege. I believe if you sit down with your attorney to have a discussion about a complex labor issue, you should be able to do that in private, just exactly like if any employee wants to sit down with his or her attorney to decide what to do going forward in a negotiation. Employers should be able to do so and that conversation should be privileged.
Mid-Term Elections
CD: With the 2014 mid-term elections right around the corner, all eyes in Washington seem to be on November 4. How do you see the elections for the House of Representatives and Senate turning out?
Roe: Given the current lay of the land, I think Republicans will remain in control of the House of Representatives. I don’t know whether we’ll add seats or not, but I think there’s the possibility we could. The key is to have the right issues, which I believe we do, and secondly, to have the right candidates, which I believe we do. And if that’s the case, then I believe we’ll add to our majority.
If the election were held today, I’d feel pretty comfortable that we would carry the Senate. Of course, four months is a long time, and anything can happen between now and November but the prospects look good for the majority to switch in the upper chamber of Congress.
CD: As a physician, you are part of one of an admired and respected profession. While your constituents (and NCA) like what you do on Capitol Hill, recent polls show that a majority in the country does not hold Congress in high esteem. What do you think you and your colleagues need to do to regain the respect of those Americans who are not that happy with Congress as a whole?
Roe: As a physician, I’ve spent 35 years practicing medicine and enjoyed some level of esteem in my local community and very much appreciated that. Congress does not have quite as high a reputation. What would change Congress’ reputation is if the president would lay out a vision for where America’s supposed to go, where he believes America ought to be, and then come to Congress, both to Senate and the House, and work toward that common vision. You will see a vision laid on the president’s desk if the Republicans carry the Senate, and that vision is what will be debated in the 2016 presidential election.
Also, if we make the case and people can see that their lives are being affected in a positive way, that things are getting done, the economy is getting better, jobs are being created, the government’s out of their life and they can go on and live their lives like they want to without constant government intervention, you’ll see Congress’ approval go up where it has always been.