New Administration May Push Variety of Labor Initiatives

On Wednesday, EmployNews published a special report on the Employee Free Choice Act (EFCA), and its possible impact on employers. Although of less immediate concern than EFCA, given Tuesday’s election results, Congress may consider a number of additional changes to U.S. labor and employment laws that could concern employers.  Some of these legislative initiatives include:

• A bill that would invalidate mandatory arbitration agreement between employers and employees, sending currently arbitrated claims to court.
• Restrictions on state “right to work” laws that prohibit mandatory union membership.
• Changes to the Equal Pay Act that would establish a “comparable worth” standard.  This would allow the EEOC and courts to determine whether different jobs within an employer’s organization discriminate in compensation based on gender.
• Reversal of the Supreme Court’s Ledbetter decision.  Ledbetter held that current pay disparities resulting from the cumulative effects of discrimination are not actionable, because the time periods for filing claims are based on the original discriminatory act, and not each subsequent paycheck.
• Expansion of the Family and Medical Leave Act to cover smaller employers.  A number of bills would also convert unpaid leave to paid FMLA leave, perhaps using a payroll insurance system similar to that in place in California.

While labor organizations may not view these proposals with the same degree of urgency as EFCA, the removal of a presidential veto threat may make their adoption more likely.  These bills would undoubtedly be opposed by businesses concerned about additional costs and litigation exposure in a weak economy.

The change in administrations will also likely result in changes among several Supreme Court members over the next several years.  Given the Court’s current ideological balance, and significant change could also result in different patterns of decisions on existing labor laws which become the subject of Supreme Court interpretations.