The Coming Storm: Will November Elections Dramatically
Alter the Workplace?
The November election promises to be interesting given
candidates' differences with respect to the Iraq war and
the economy. However, employers
need to be aware that the November election may also
have a dramatic impact on labor and employment laws
governing their day-to-day operations.
Recent Legislative Action
President
Bush recently signed the Genetic Information
Non-Discrimination Act, intended to prohibit the
improper use of genetic information. The Act prohibits
group health plans and health insurers from denying
coverage to healthy individuals or charging such persons
higher premiums based solely on a genetic
pre-disposition to developing a disease in the future.
The Act also bars employers from using an applicant or
employee's genetic information when making job
decisions.
In addition, there are currently over a dozen labor and
employment bills pending before the U.S. House or
Senate. Most of these have stalled in committee or have
little traction given a threatened presidential veto.
However, a change in administration or further
Democratic gains in the House and/or Senate could see
the passage of many of these proposed bills, which would
dramatically alter the landscape for employers.
Pending
Bills
For example, Barack Obama has voiced his support and is
a sponsor for the Orwellian-named "Employee Free Choice
Act" (EFCA) that, among other things, would replace
secret ballot union elections currently conducted by the
Nation Labor Relations Board with a "card check"
procedure, pursuant to which an employer would be
legally obligated to recognize and bargain with a union
if a simple majority of employees sign union
authorization cards.
The
table below lists some of the pending bills and their
implications:
|
Bill Title |
Proposed Changes in the Law |
|
ADA Restoration Fairness Act
(signed by George Bush, effective
January 2009) |
Intended to reverse several Supreme Court decisions
that the Act’s supporters claim have significantly
narrowed the reach of the Americans with
Disabilities Act (ADA). For example, the proposed
Act would determine whether an employee is disabled
without regard to whether the employee is using any
mitigating measures (such as hearing aids, glasses
or medication). Presently, courts take into account
mitigating measures to determine if an applicant or
employee is a “qualified individual with a
disability” and protected under the ADA. |
|
Arbitration Fairness Act
(proposed July 2007) |
Would make pre-dispute arbitration agreements in
employment contracts unenforceable if made between
parties of unequal bargaining power. |
|
Employee Free Choice Act
(proposed February 2007) |
As
noted above, the Act’s provisions are intended to
make it significantly easier for unions to organize
employers. The EFCA also provides for binding
arbitration during negotiations for a first contract
after 120 days, and increases remedies available for
unfair labor practice charges. |
|
Employment Non-
Discrimination Act of 2007
(proposed September 2007) |
Would prohibit discrimination based on sexual
orientation and gender identity. |
|
Equal Remedies Act
(proposed August 2007) |
Would eliminate punitive and compensatory damages
caps that presently exist under Title VII (which
governs discrimination claims based on race, color,
sex, national origin and religion). |
|
FMLA Expansion Act
(proposed June 2007) |
Among a number of proposed changes, the Act would
extend FMLA coverage to smaller employers (25 or
more employees) and authorize additional types of
leave, including leaves for parent-teacher
conferences and other school related functions. |
|
Healthy Families Act
(proposed March 2007) |
Would require employers with over fifteen employees
to provide 7 days of paid sick leave for employees
working 30 or more hours each week, with pro-rated
sick leave for employees working less than 30 hours
per week. |
|
Ledbetter Fair Pay Act
(proposed June 2007) |
Intended to reverse a Supreme Court ruling with
respect to alleged discriminatory pay practices, to
provide that a cause of action accrues each time an
employee receives a paycheck affected by the alleged
discriminatory practice. The Supreme Court’s
Ledbetter decision held that the cause of action
for a discriminatory pay practice accrues at the
time the practice was made or adopted, such that
successive payments do not trigger a new cause of
action or extend the statute of limitations. |
|
RESPECT Act
(proposed March 2007) |
Intended to reverse a National Labor Relations Board
decision that purportedly expanded the definition of
“supervisor” under the National Labor Relations Act
– important because only “employees” (not
supervisors) are entitled to unionize or otherwise
engage in protected activity under federal labor
law. |
Obviously, strong Democratic majorities in the House and
Senate, along with a Democratic White House, would
greatly enhance the chances of these proposed laws being
enacted. Thus, employers will need to closely monitor
these bills and the November elections as politics and
events proceed.
