The Election Is Over: "Change" on the Horizon?

With Barack Obama the President-Elect and an overwhelming democratic majority in Congress, employers can expect major changes in labor and employment-related legislation. The following highlights some of the legislation likely to be pursued during Obama's presidency.

Employee Free Choice Act (EFCA)
Obama was an original co-sponsor of the EFCA. The Obama-Biden ticket resoundingly endorsed EFCA, and unions supporting Obama made the EFCA their top priority. As presently proposed, the EFCA requires an employer to recognize a union without a secret ballot election if a majority of employees sign a union authorization card. The employer would then be forced to begin bargaining with the union no more than 10 days after the union's request. If a contract is not reached within 90 days of bargaining and 30 days of federal mediation, an arbitrator will establish the initial terms and conditions of employment that will remain binding on the employer for a two-year period. EFCA also imposes more stringent penalties on employers for each unfair labor practice committed during a union organizing drive.

Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act
Under the National Labor Relations Act (NLRA), "supervisors," as presently defined, are excluded from the NLRA's coverage. Accordingly, "supervisors" are excluded from unionization. The RESPECT Act would eliminate several supervisory duties, such as assigning work and responsibly directing work, from the current definition of a "supervisor" under the NLRA. The RESPECT Act would also require supervisors to spend the majority of their time performing the remaining statutory responsibilities to be excluded from the NLRA's coverage. As a result, working-supervisors would no longer fall under the NLRA's supervisor exclusion and would be subject to unionization.

The Patriot Employers Act
The Patriot Employers Act would provide employers with tax credits if they satisfy a number of criteria. Among the criteria would be that employers would have to remain "neutral" during union organizing campaigns and pay at least 60 percent of the health care premiums for its employees.

Lilly Ledbetter Fair Pay Act
The Lilly Ledbetter Fair Pay Act amends the charge-filing period for Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Rehabilitation Act and the Age Discrimination in Employment Act for pay-related discrimination claims. Under the Lilly Ledbetter Fair Pay Act, a charging party would be allowed to pursue claims for discriminatory pay practices based on a continuing violation theory for each pay check or retirement check issued, and charging parties would no longer be subject to the 180/300-day administrative charge filing limitation period presently in place.

Equal Remedies Act and Civil Rights Act of 2007
The Equal Remedies Act and Civil Rights Act of 2007 removes the $300,000 statutory maximum for compensatory and punitive damages under Title VII of the Civil Rights Act of 1964. In other words, a victorious plaintiff under Title VII could receive an unlimited amount of damages. Moreover, the Equal Remedies Act and Civil Rights Act of 2007 would make it easier to initiate litigation based on disparate impact claims.

Working Families Flexibility Act
Under the Working Families Flexibility Act, employers must negotiate employee requests pertaining to the number of hours the employee is required to work, the employee's working hours and the employee's work location. If an employee's request is denied, the employer must provide a written decision to the employee that provides certain statutorily specified information related to the grounds for the rejection. After receiving an adverse decision, an employee can initiate an investigation by the Department of Labor, an Administrative Law Judge hearing and/or a civil action in federal court.

Fair Pay Act of 2007
The Fair Pay Act of 2007 amends the Equal Pay Act and the Fair Labor Standards Act, and creates a "comparable worth" process that would compare jobs for equal pay purposes based on gender, race or national origin. This legislation would make it unlawful for an employer to pay employees in jobs dominated by a particular sex, race or national origin at a rate that is less than the rate the employer pays employees in other equivalent jobs dominated by other sexes, races or national origins.