What to Expect from Congressional "Tinkering" with Employment Law (2009)

This article originally appeared in the August 2009 Employment Law Committee Newsletter. We are well into the new Administration's first year and numerous matters have distracted the Administration and Congress from pressing forward their labor and employment agendas. Most observers still believe Congress will make significant changes to the federal employment laws. What follows is a discussion of various bills currently pending and recently passed in Congress that could alter the employment law landscape. 1. EMPLOYEE FREE CHOICE ACT This legislation (H.R. 800/S. 1041), strongly supported by organized labor and strongly opposed by business groups, could change the rules for organizing unions in the workplace. The controversial changes to the National Labor Relations Act contained in the pending bills have generated serious efforts on both sides of the aisle to find compromises. At this point, it is anyone's guess as to what might come out of the negotiations. The bills in the current form contain sweeping changes to the NLRA. Currently, employees who wish to form a union sign cards stating their intent. If 30 percent or more employees sign cards, a secret ballot election administered by the National Labor Relations Board is held. If a majority of employees approve, the union is recognized. In the pending bills, the formation of a union could take place simply by collecting cards signed by a majority of employees. The pending bills would eliminate the secret ballot election that has long been a mainstay of labor law. Supporters of the legislation say the proposed amendments merely simplify the process of forming a union and eliminate the secret ballot election. The proposed amendments would end the undue influence the bills' proponents contend employers exert on workers to reject the union. However, opponents of the bill cite the threat of worker intimidation and harassment by union organizers during the card procurement process. They say employees who might vote against a union in a secret ballot may be reluctant to do so in a face-to-face encounter with a union organizer seeking signatures. The pending bills also call for arbitration to impose initial contracts for a two-year period when the parties are unable to agree on a contract. Other measures such as treble damages for unfair labor practice charges as well as fines are also part of the bills in their current form. The legislation was passed by the United States House of Representatives on March 1, 2007 but was killed in the United States Senate on June 26, 2007 when Senate Democrats were unable to get the 60 votes necessary to end a Republican filibuster of S.1041, the identical Senate bill. President Obama has vowed to sign any such legislation into law. The super majority the Democrats now hold in the Senate poses a real opportunity to push through some form of EFCA legislation. Although some Democratic senators have publicly indicated they would not vote to invoke cloture that would end a Republican filibuster unless the EFCA was changed from its present form, at least one of those senators, Arlen Specter, has indicated he would vote to invoke cloture if the pending bills were amended. The economy and the health care debate have all helped to divert attention and energy from the EFCA passage effort, for the time being. But, when Congress returns from its August recess, we may see the product of the negotiations that have been occurring for the past several months. Unions and pro-EFCA groups are unlikely to give up the fight to pass the EFCA in some form. Advocates and legislators on both sides of the EFCA debate will likely reach a compromise in the coming months. Stay tuned. 2. FAMILY LEAVE INSURANCE ACT On June 21, 2007, a bill was first introduced in the United States Senate that would provide up to 8 weeks of paid benefits to employees who take leave covered by the Family and Medical Leave Act (FMLA). …