President-elect Obama co-sponsored several significant pieces of legislation pending in Congress that are at the top of organized labor’s domestic legislative agenda. If the following legislation is reintroduced (which is almost certain to occur) and the new Congress passes the various pieces of legislation in their current form, these bills would drastically change and significantly ease the process for the unionization of employees, expand the scope of employment discrimination claims and increase the amounts of damages recoverable from employers. The following legislation should be carefully tracked:
Employee Free Choice Act. Commonly referred to as the “card check” legislation, the EFCA contains a number of provisions that would significantly alter the traditional union-management collective bargaining processes. As currently proposed, if a union presents signed authorization cards from more than 50% of the employees in the sought-after bargaining unit, the National Labor Relations Board would certify the union as the employees’ exclusive bargaining representation, foreclosing the employees’ long-held right to vote in a secret-ballot election to determine union representation. The parties would be required to commence bargaining within 10 days of the union’s request to begin negotiations. If, after 90 days of bargaining, an agreement is not reached, then either party could request mediation. If, 30 days after the mediation request, no agreement is reached, then an arbitration panel would determine the unresolved terms of the collective bargaining agreement (wages, hours, terms and conditions of employment) that would be binding on the parties for two years, unless the parties agree otherwise. Employers would be subject to triple back pay for certain types of unlawful discharges and civil penalties up to $20,000 for each willful or repeated unfair labor practice.
Ledbetter Fair Pay Act. Under current law, an employee is required to timely commence a pay discrimination suit within 300 days of the discriminatory decision that resulted in the alleged discriminatory pay. Ledbetter v. Goodyear Tire & Rubber Co. This bill would legislatively reverse the 2007 United States Supreme Court decision, and indefinitely extend the time limit for employees to file claims of pay discrimination based on race, color, sex, age, religion, national origin or disability. As proposed, the LFPA provides that each paycheck that is affected by a past discriminatory decision would constitute a new unlawful practice, thereby giving rise to a new cause of action each time the employee receives a paycheck. As a result, an employee could file a pay discrimination claim within 300 days after receipt of a paycheck even though the claim may be based on an alleged discriminatory decision made many years before.
Paycheck Fairness Act. This bill would amend the Equal Pay Act to prohibit paying less to an employee of one sex for the performance of substantially similar work (i.e., comparable worth) and would eliminate or substantially curtail many defenses to equal pay claims currently available to employers. The legislation also provides for unlimited compensatory and punitive damages, would facilitate class action claims (allowing challenges, for example, to pay to an entire class of jobs) and would prohibit employer policies regarding confidentiality of compensation information or restricting employees’ discussion of their wages or the wages of another employee.
RESPECT Act. This bill would amend the National Labor Relation Act’s longstanding definition of “supervisor,” thereby making more individuals eligible for union representation. Under current law, a “supervisor” is a part of management and is not an “employee” entitled to rights under the National Labor Relations Act. A “supervisor” is defined as an employee who acts in the interest of the employer and uses independent judgment to “hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly direct them, or adjust their grievances, or effectively recommend such actions.” This bill would delete the terms “assign” and “responsibly direct” from the definition of supervisor. In addition, a supervisor would be required to spend a majority of his/her work time on the performance of supervisory duties. The affect of these changes would be the removal of many first line and lower level supervisors who are currently a part of management from the definition of “supervisor” and thereby make them eligible for organization by a union.