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Red Light, Green Light: How HR Must Prepare for Political Change

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Management Training

Politics is a spectator sport for most Americans. But Nov. 4 could bring enormous real-world changes to the American workplace, especially in the world of labor and employment law.

“If you’ve not dealt with unions before, I cannot overemphasize how quickly the world could change this fall,” said Mike Fox, a Texas-based attorney with Ogletree Deakins and the editor of Texas Employment Law “This would be the first time in my life we’d really have a president aligned with organized labor.”

In speaking at last week's Society for Human Resource Management (SHRM) conference, Fox laid out three different Election Day scenarios and the potential impact on HR:

RED LIGHT. McCain wins the presidency, and Democrats win fewer than 60 seats in the Senate (so they won't have a "supermajority" that can overcome filibuster threats). Impact: Little change in legislative/regulator climate for HR.

YELLOW LIGHT. Obama wins the presidency, but Democrats win fewer than 60 seats in the Senate. Impact: Moderate change, but Republicans in Senate will still have the ability to block what they see as the most anti-business bills.

GREEN LIGHT. Obama wins the presidency, and Democrats win more than 60 seats in the Senate, giving them a supermajority to overcome filibuster threats. Impact: Large-scale, employee-friendly changes to employment legislation. "I really think it's 'Katie bar the door' and we'll really have a new world in which we operate," said Fox.

Several pieces of legislation that have been bottled up in Congress or faced a veto threat under the Bush administration would find new life under an Obama presidency.

One leading bill that would be pushed in the opening days of an Obama administration: The Orwellian-named Employee Free Choice Act (EFCA), which would effectively eliminate secret-ballot union elections and make it much easier for workers to form unions. It would allow a simple card-check authorization--not a secret election--to authorize a union.

“This would drastically change the number of employers who have to deal with unions … it totally removes the (bargaining) power of the employer,” said Fox.

Mike Lotito, an attorney with Jackson Lewis, reiterated the same message in his presentation, calling EFCA "potentially the most dramatic change in our labor laws since 1947."

How fast could Congress move on this? If you remember, an FMLA bill was on President  Clinton's desk within two weeks of his inauguration.

Several other pending bills would have a much better likelihood of passage under a "green light" scenario and Obama administration, including legislation that would:

  • Make it illegal to discriminate against employees and applicants based on their sexual orientation. (This bill could face a final vote even before Nov. 4 and has a good chance of passage regardless of the political makeup.)
  • Prevent employers from establishing mandatory arbitration agreements with employees.
  • Repeal the caps on damages for federal discrimination lawsuits filed under Title VII.
  • Extend the statute of limitations for employees and ex-employees to file pay-discrimination lawsuits.
  • Hand down penalties to companies that move jobs overseas, or offer incentives to keep jobs here.
  • Ban the long-term replacement of employees who go on strike for economic reasons.
  • Increase criminal OSHA penalties for employer safety violations, and include the public sector under OSHA coverage.

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