Less than a month into the Obama administration, the news media is deluging employers with news of changes to federal employment laws. These include amendments to the ADA (greatly expanding the definition of who is disabled), new FMLA regulations (requiring companies to rewrite their policies and FMLA forms), the Lilly Ledbetter Fair Pay Act (making it easier for companies to be sued for wage-related discrmination), and three new pro-labor Executive Orders affecting federal contractors.
Commentators throughout the political spectrum agree that this may be just the beginning and that Democrats are likely to introduce a slew of new proposals in the coming months that will spell almost certain heartburn for employers. The most dramatic currently pending legislation includes the Employee Free Choice Act and further revisions to the Family and Medical Leave Act. Both are supported by the Obama administration.
Employee Free Choice Act
Most HR professionals agree that the Employee Free Choice Act (“EFCA”) is now the employment law issue of greatest concern. This bill, passed by a wide majority in the House and supported by a slim majority in the Senate last year, would dramatically change the playing field for companies trying to avoid unions. Employers should be aware of three parts of the proposed EFCA:
- First, the EFCA would require the National Labor Relations Board to certify a union as the exclusive representative of all employees in a work unit (designated by the union) if the union obtains authorization cards from a majority of employees in the work unit. No longer would employers be able to require a secret ballot election (so as to truly judge employee support for a union) or be able to educate employees about unions in advance of the election. Many unions could rely more on coercion and trickery to obtain employees' authorization cards. Once cards are submitted to the NLRB, employers may have limited opportunities to contest such illicit tactics.
- Second, if a union is newly certified and the employer does not agree to the union’s bargaining demands within 90 days, the EFCA would require mediation and then binding arbitration. This process would then result in forced wage rates and other terms of employment for a two-year period. No longer would employers be able to bargain for so long as it took to reach a mutually acceptable contract, guided only by the requirement that everyone bargains in good faith.
- Third, the EFCA would impose new penalties for labor law violations after a union is certified. No longer would employees merely be “made whole.” Rather, the EFCA would permit the NLRB and federal courts to order an employer to pay “liquidated damages” (twice the amount of any awarded back pay) and to impose penalties of up to $20,000 per labor law violation.
Family and Medical Leave Act
The Obama administration is also considering further changes to the Family and Medical Leave Act that would make the recent, comprehensive FMLA revisions appear minor. The Obama website trumpets a proposal to expand coverage under the FMLA from those employers with 50 or more employees to those with as few as 25 employees. Democrats have also proposed that companies should be required to allow employees to use FMLA leave to provide eldercare, to participate in children’s academic activities, to address domestic violence and sexual assault matters, and to extend FMLA protections to part-time workers. Some Democrats have even urged the Obama administration to require employers to pay some portion of FMLA leave.
The Prospects for Enactment
Whether the EFCA will become law has become a very popular parlor game in the capitol and the labor and employment community. On the one hand, President Obama has expressed his support for the EFCA, unions are making a full-court press for passage, and the Democratic majority owes the unions for their huge support in the past election. On the other hand, conservative opponents have become equally organized and well-funded, and the U.S. Chamber of Commerce has termed the defeat of the EFCA its main legislative goal this year. Perhaps of greatest succor to the Republicans is that the White House recently removed reference to the bill from its website.
This should not provide undue ease to anyone. The bottom line is that unions' political power is on the rise in Washington, and they are certain to press for laws reflecting that power. Even if the EFCA does not pass, Democrats will almost certainly attempt to re-work far more politically palpable laws, such as the FMLA.
What You Can Do
Regardless of whether the EFCA or an amended FMLA eventually become law, “change” is coming to Washington and it may not be change that employers like or can afford in this economic environment. Eight years of pent-up legislative initiative by unions and Democrats is almost certain to blossom in the coming months. Employers should contact their legislators and voice objections to the pending anti-business legislation before it is too late.
Although aggressive new employment laws may be inevitable, human resources professionals should remain prepared. Companies should familiarize themselves with changes that have already been made (such as to the ADA and FMLA), and consider how to handle new changes that may come down the road. For example, what new policies would be required? What types of new training would be appropriate? Under the EFCA, by the time a company becomes aware that a union is speaking to its employees, it may be too late. Union avoidance training will need to become a regular part of a company’s standard human relations protocol.