The race for the White House is in high gear with Democratic Presidential nominee Barack Obama and Republican nominee John McCain campaigning tirelessly as Election Day approaches. As Americans turn their attention to the November election, it is not too early to speculate about what employment legislation could arise under the next president. Here is a look at what we might expect to see during the next four years under an Obama or McCain Administration.

Potential legislation under an Obama Administration

  • The “Employee Free Choice Act:” Sen. Obama has pledged to fight for passage of this legislation, which would amend the National Labor Relations Act in various ways. Among the most highlypublicized features of the EFCA is its change to the process under which an employer must recognize a union.
  • Federal Healthy Families Act: Sen. Obama has expressed support for federal legislation guaranteeing 7 paid sick days per year for full-time employees and a pro-rated amount for part-time employees.
  • Higher Minimum Wage: Sen. Obama has expressed support for increasing the federal minimum wage and building in an index to inflation to ensure that it rises each year.
  • Striking Workers: Sen. Obama has expressed support for legislation to ban permanent replacement of striking workers.
  • Overturning “Kentucky River” Decisions: Sen. Obama supports legislation to overturn the 2006 “Kentucky River” decisions of the NLRB, which set guidelines for determining when an employee is properly classified as a “supervisor.” Critics of the Kentucky River decisions have expressed the view that these decisions have expanded the number of employees who may be deemed “supervisors.”
  • Amendments to the FMLA: Sen. Obama has expressed a desire to expand FMLA coverage to include business with 25 (as opposed to 50) or more employees and to expand the permissible reasons for taking time off under the Act.

Potential legislation under a McCain Administration 

  • Workplace Flexibility: Sen. McCain has supported legislation to allow private employers to offer flex time and compensatory time in lieu of overtime.
  • Commission on Workplace Flexibility and Choice: Sen. McCain has indicated support for forming a presidential commission to examine the need for changes to labor laws and to recommend measures to “modernize” existing labor laws to account for such things as telecommuting, flexibility in scheduling, and job training assistance.
  • Health and Retirement Benefits: Sen. McCain has supported the concept that workers should be able to maintain the health and retirement benefits they have previously chosen, even in the event of a job change.
  • Guest Worker Program: Sen. McCain was a strong supporter of a guest-worker program intended to allow foreign-born workers to fill labor shortages. Immigration reform legislation in a McCain Administration could also include a “guest worker” feature.

Both candidates supported recent legislation that amended the Americans With Disabilities Act. Signed into law by President Bush late last month, the ADA amendments contained provisions designed to:

  • Broaden the definition of a “person with a disability;”
  • Override existing court precedent and hold that mitigating measures (such as medication or corrective devices) cannot be considered when assessing whether someone is “disabled” under the ADA; and
  • Instruct courts to broadly interpret the definition of “disability” in ADA cases.