January 21, 2009

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Labor and Employment Issues - Post Election Update

The election of Barack Obama as President of the United States on the platform of change will undoubtedly have implications for employers. Just how widespread the promised change will be remains to be seen. What can be stated with certainty is that in the context of labor and employment law, the promised change may take many forms, including legislation, regulation, and revised judicial and administrative interpretations of current labor and employment laws.

PROPOSED LEGISLATION

The following is an overview of proposals President-elect Obama has supported, either as a Senator or during his Presidential campaign.

AMENDMENT OF CURRENT FEDERAL DISCRIMINATION LAWS

House Democrats have marked the first week of the new Congress by approving two pay discrimination bills -- the Lilly Ledbetter Fair Pay Act (H.R. 11) and the Paycheck Fairness Act (H.R. 12). The Lilly Ledbetter Fair Pay Act reverses a Supreme Court decision and amends Title VII, the ADA, the ADEA, and the Rehabilitation Act of 1973 to allow claims brought within 180 days of receiving any paycheck affected by a discriminatory pay decision, no matter how far in the past an act of discrimination allegedly occurred. The Paycheck Fairness Act clarifies that victims of gender-based discrimination can sue for compensatory and punitive damages, provides protection to employees who share salary information with their colleagues, and puts the burden on employers to prove that any wage disparities are job-related and not gender-based. Both bills are expected to reach the Senate floor later this month. Additionally, during his campaign, Obama pledged his support for the Employment Non-Discrimination Act ("ENDA"), an Act that would amend federal employment statutes to include sexual orientation as a protected class.

EMPLOYEE FREE CHOICE ACT (EFCA)

As noted in our previous alert, the EFCA would: (1) establish a card check procedure, under which a union could be certified if a majority of employees within an appropriate bargaining unit signed union authorization cards; (2) impose contracts on employers and unions that do not reach agreement on initial contracts within as little as 120 days; and (3) stiffen penalties for unfair labor practices committed by employers during an organizing campaign or during bargaining over an initial contract.

RE-EMPOWERMENT OF SKILLED AND PROFESSIONAL EMPLOYEES AND CONSTRUCTION TRADESWORKERS ("RESPECT" ACT)

The RESPECT Act would effectively limit which workers the National Labor Relations Act ("NLRA") classifies as supervisors and increase the number of employees eligible for unionization by: (1) removing from the NLRA definition of "supervisor" the duties of assigning and responsibly directing other employees, and (2) requiring that employees spend a majority of their time performing supervisory duties in order to qualify as "supervisors" under the Act.

EQUAL REMEDIES ACT AND CIVIL RIGHTS ACT OF 2008

This legislation would increase employer liability and damages by removing the current $300K cap on compensatory and punitive damages for violations of Title VII and the ADA.

FAMILY AND MEDICAL LEAVE ACT ("FMLA") AMENDMENTS

The proposal would expand FMLA coverage to include businesses employing 25 to 49 people (as opposed to the current minimum of 50 employees), and provide new leave entitlements including leave for elder care and instances of domestic violence, and up to 24 hours of leave each year for parents to attend school functions for their children.

PUBLIC SAFETY EMPLOYER-EMPLOYEE COOPERATION ACT

This Act would provide collective bargaining rights for public safety officers, such as firefighters, emergency medical services personnel, and public safety officers, employed by states or their political subdivisions

FOREWARN ACT OF 2007

The Forewarn Act would expand the WARN Act's scope by requiring employers with 50 or more employees (instead of the current 100 or more employees) to provide 90-day written notice of plant closures or mass layoffs (instead of the current 60-day notice), and would double the amount of backpay an employer would owe employees if the notice requirement is not met.

NLRB DECISIONS

The first change we can expect to see in the short-term is a full complement of five members for the National Labor Relations Board (the "Board"). The statutory scheme provides for a presidentially appointed five-member Board, with members serving staggered five-year terms. As a result of this process, Board decisions tend to fluctuate over time, reflecting the ever-shifting composition of the Board.

Despite the statutory scheme calling for a five-member Board, the Board has been operating for some time with only two of its five seats filled. Therefore, President-elect Obama has the unique opportunity to appoint three members to a Board currently composed of one Republican and one Democrat, placing the viability of several decisions in the hands of a new Board and a new General Counsel. Current at-risk decisions include:

WEINGARTEN

History has shown that whether or not Weingarten rights apply to non-union employees depends upon the makeup of the Board. Since 2004, a time when the Board included three Republican members, only union represented employees have the right to have a representative present during an investigatory interview that might reasonably lead to disciplinary action. Only four years earlier, the Clinton-appointed Board held that Weingarten rights were also applicable to nonunion employees. Accordingly, another case presented to a Board comprised of different members will likely result in the Board again revising its view of Weingarten rights.

REGISTER-GUARD

In 2007, the Board held in Register-Guard that employers could legally prohibit employees from using their employer's e-mail systems for Section 7 purposes, including union organizing or engaging in other protected concerted activity, as long as the employer had a policy barring employees from sending e-mails for "non-job-related solicitations." In a biting dissent, the Democratic minority accused the majority of ignoring both precedent and the impact of technological change on workplace communications. Because the Board was closely divided on this issue (3-2) and the ruling was controversial, the rules could easily change in the future.

Due to the fact that labor law and politics are inexplicably intertwined, it is no surprise that the political pendulum swings back and forth on these issues. As Judge Edwards noted in Epilepsy Foundation v. NLRB, "[i]t is [simply] a fact of life in NLRB lore that certain substantive provisions of the NLRA invariably fluctuate with the changing compositions of the Board."

Employers that educate themselves and prepare for the changes will be better equipped to prosper in a shifting business environment where employees have enhanced rights. To that end, we will continue to keep you updated on the status of these and other important labor and employment proposals. If you would like further information regarding any of the above, or any other labor relations issues, please contact any member of Ryley Carlock & Applewhite's Labor and Employment Practice Group.

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