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After the Election: How Employers Must Prepare for Political Change

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources

For much of the last two years, politics has been a spectator sport for most Americans. Now that Barack Obama has been elected president and Democrats have solidified their control of Congress, it's time to  consider the potential for enormous real-world changes to the American workplace, especially in the world of labor and employment law.

One of the flashpoints for change: organized labor.

“If you’ve not dealt with unions before, I cannot overemphasize how quickly the world could change,” said Mike Fox, a Texas-based attorney with Ogletree Deakins and the editor of Texas Employment Law

Fox recently laid out two scenarios for employment law changes under an Obama administration, and their potential impact on HR. Much depends on whether the Democratic majority in the Senate reaches 60 seats, a filibuster-proof majority that would enable Democrats to usher in sweeping change if they choose to.

YELLOW LIGHT: 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: 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, agreed, 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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