President Obama's Impact on Labor & Employment Law - The Times, They Are A-Changin'
Scott M. Zurakowski
As President Barack Obama completes his first 100 days in office, one of the areas on which he will have a profound impact is in the labor and employment sector and, in particular, more employee friendly legislation. Already in his first 100 days, President Obama has signed the Lilly Ledbetter Fair Pay Act that counts each paycheck as an act of discrimination, effectively restarting the clock on the statute of limitations every time an employee is paid in order to bring a claim for unequal pay. The effects of the paycheck rule remain to be seen, but, in theory, an employee could wait until they had taken a new job or retired to file a discrimination claim.
In addition, in early March 2009, the Employee Free Choice Act (“EFCA”) was introduced in both the House and Senate. EFCA represents the most significant change to the nation’s labor laws in the past 60 years. EFCA seeks to strengthen unions through card check certification, compulsory arbitration of first contracts, and new employer-only penalties. What happens if EFCA becomes law? Well, if 50% plus 1 of your workforce sign cards, your company would become a union shop without ever having had to have had an election. Further, if a union is elected, the union and the employer would have 120 days to negotiate a contract. If the parties were unable, arbitrators would decide the terms of the first Collective Bargaining Agreement. Finally, EFCA’s penalty rules call for employer-only penalties including treble back pay damages and up to $20,000 in civil damages for willful or repeated employer violations of the National Labor Relations Act.
If that wasn’t all, democrats have also introduced the Re-empowerment of Skilled and Professional Employees in Construction Trade Workers or RESPECT Act. The RESPECT Act would dramatically limit which workers the National Labor Relations Act (“NLRA”) classifies as supervisors.
Section 2 (11) of the NLRA defines a “supervisor” as an employee with the authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or to responsibly direct them or to adjust their grievances, or effectively to recommend such action” so long as this authority requires the use of “independent judgment.” The RESPECT Act would remove from the definition of supervisor “the duties of assigning and responsibly directing other employees.” The legislation also specifies that supervisors must “hire, transfer, suspend, lay off, recall, promote, discharge, reward, or discipline other employees” for a majority of their work time. The RESPECT Act would have a profound impact on employers and the manner in which they deal with their supervisors.
Also recently introduced is the FOREWARN Act. This is legislation which would amend the WARN Act to increase the notice period for plant closings or mass layoffs from 60 to 90 days. As a result of many critics of the WARN Act believing it does not go far enough, because it covers only the largest layoffs by the largest employers, democrats in Congress see this as fertile ground.
Finally, there is also legislation pending known as the Working Families Flexibility Act. This legislation would give employees a statutory right to request flexible work terms and conditions. The Working Families Flexibility Act is modeled after similar laws in Europe and provides for an interactive process by which an employee can request changes by his or her schedule, location of work, or the number of hours worked. Employers would be required to meet with the employee and a designated representative of his or her choosing to discuss the request, give a written decision to the employee, and justify any denial in writing.
All of this legislation has found broad support in both houses due to the current economic downturn. President Obama has made it no secret that he supports all of this legislation, including EFCA, and has targeted employment and labor law as an area in which his administration can make the greatest impact. Stay tuned, as the times they are a changin’!
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.