Potential changes in labor and employment law after 2008 elections

June 27, 2008

Excerpted from Indiana Employment Law Letter written by attorneys at the law firm of Baker & Daniels

by Stuart R. Buttrick

There is no doubt we're in an election year -- the candidates are incessantly sniping at each other, continuously kissing babies, and making outrageous promises to appease every possible constituency in exchange for the promise of votes. What many employers don't know, however, is that there are potentially revolutionary employment-related legislative changes on the horizon. This article briefly summarizes a number of significant employment-related laws that could dramatically affect employers in 2009 and beyond.

Free HR Hero White Paper : What’s Next? Seven Possible New Employment Laws HR Pros Should Know About

Proposed legislation
Employment Non-Discrimination Act (ENDA). The Employment Non-Discrimination Actwould prohibit employers, employment agencies, and labor organizations from discriminating against workers because of sexual orientation. In effect, ENDA would make sexual orientation a protected class, just like race, sex, age, national origin, and disability.

HR Hero Line Article: Sexual orientation discrimination and the Employment Non-Discrimination Act

Civil Rights Act of 2008. Among its provisions, the Civil Rights Act of 2008 would remove the statutory cap on damages that presently exist on claims under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). (Doing so would leave employers exposed to unlimited damages in Title VII or ADA cases.)

Lilly Ledbetter Fair Pay Act. The Lilly Ledbetter Fair Pay Act would amend Title VII, the Age Discrimination in Employment Act, the ADA, and the Rehabilitation Act to specify that the time limits for filing pay discrimination actions begin to run each time an employee receives a paycheck that manifests discrimination. This would alter current law, which states that the filing time begins to run when the employer makes the discriminatory pay decision. Update: Lilly Ledbetter Fair Pay Act signed into law Jan. 29, 2009

Re-Empowerment of Skilled Professional Employees and Construction Tradeworkers (RESPECT) Act. This Act would amend the National Labor Relations Act (NLRA) to change the definition of "supervisor" under the NLRA so that individuals who "assign" or "responsibly direct" would not be deemed supervisors. Thus, individuals who "assign" or "responsibly direct" others would be subject to labor union organization. The RESPECT Act also would require that an individual spend the majority of his work time on supervisory duties to be deemed a "supervisor" under the NLRA.

Employee Free Choice Act (EFCA). The EFCA would eliminate the secret-ballot election in union representation proceedings and replace it with a card-check arrangement. Under the EFCA, if a union obtained authorization cards signed by more than 50 percent of employees, the union would automatically become the recognized bargaining agent.

Audio Conference: Employee Free Choice Act Battle Plan: Preparing for Labor's New Organizing Tool

Under the card-check process, employees could face tremendous pressure to sign cards and there would be no anonymity. Also, the activity could take place without the employer having any formal notice that union activity was taking place, and the employer might never have the opportunity to tell its employees why the union isn't in their best interest.

In addition, the EFCA provides for mandatory mediation and binding arbitration if the parties fail to reach a full agreement on a first bargaining agreement within a certain time frame. Thus, an arbitrator could end up deciding what wages and benefits employers must pay employees. The EFCA also sets much more stringent penalties for unfair labor practices.

HR Hero Line article: Employee Free Choice Act: what employers should do now

Bottom line
Regardless of whether you are a Democrat or Republican, there's no doubt that you could be confronted with an onslaught of employment-related legislation that will forever alter the way you do business. Along with all of the other factors that need to be considered when voting this fall, you should deeply consider how the proposed employment-related legislation discussed above would affect your ability to efficiently and effectively do business.

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Copyright 2008 M. Lee Smith Publishers LLC. INDIANA EMPLOYMENT LAW LETTER. INDIANA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems, but rather to provide information about current developments in Indiana employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.