The election rhetoric has been relatively quiet on employment-related topics, except for the brief mention in the last debate. Candidate Obama has a clear agenda employment legislation based on his co-sponsorship of various bills and other media comments. Candidate McCain’s position is less clear. Detailed below is a summary of the key legislative initiatives considered by Congress in 2008, all of which have passed the House of Representatives except the RESPECT Act.
Summary: The EFCA amends the NLRA to change the procedures for union certification and first contract negotiation. The primary components of the act are as follows:
- Allows NLRB certification of a relevant bargaining unit upon authorization card showing from 50% plus one of employees bypassing secret ballot election.
- Mandates initial collective bargaining contract be negotiated within 120 days or first contract is produced by an arbitrator covering employees for 2 years.
- Provides new fines for employer unfair labor practices.
Impact: EFCA is a monumental change to the NLRA. Much has been made of the abrogation of the secret ballot election, but equally dramatic are the limitations placed on collective bargaining and contract determination by an arbitrator if no agreement is reached in 120 days of negotiations. If enacted, EFCA will result in unprecedented organizing activity with employers losing their ability to demand an election and engage in hard bargaining over a first contract.
Candidate Positions: H.R. 800 passed the House but did not receive enough votes for consideration by the Senate. Candidate Obama is a co-sponsor of the Senate Bill and supports its passage. Candidate McCain opposes the Senate Bill.
Employment Non-Discrimination Act (H.R. 3685/ no Senate Bill)
Summary: ENDA adds sexual orientation to the protected classes under Title VII for all employers except religious organizations. It allows reasonable access to adequate facilities that are not inconsistent with the employee’s identified gender, but does not require domestic partner benefits or protect “gender identity”.
Impact: ENDA adds a protected class to employment discrimination protections allowing compensatory and punitive damage claims against employers.
Candidate Positions: H.R. 3685 passed the House but did not receive enough votes for consideration by the Senate. No legislative position by either candidate. Candidate Obama’s website expresses support for the legislation.
Summary: FPA overturns the Supreme Court’s decision in Ledbetter v. Goodyear Tire and Rubber Co. effectively eliminating the 180 or 300-day statute of limitations for filing a wage-related discrimination claim. The bill allows family members and others affected by discrimination to file claims and reinstitutes the Paycheck Rule for determining when a claim accrues. It also allows claims based on paychecks and annuity payments which would allow retirees to bring claims.
Impact: FPA virtually eliminates the statute of limitations for wage-related claims.
Candidate Positions: H.R. 2831 passed the House but did not receive enough votes for consideration by the Senate. Candidate Obama is a cosponsor of the Bill. Candidate McCain has expressed no opinion on the Bill.
Summary: PFA changes the burden of proof in gender based pay claims requiring the employer to affirmatively demonstrate that any pay differential is not based on sex. Employers who cannot meet this burden face unlimited compensatory and punitive damages. The EEOC would be required to collect employer payroll information based on sex, race, and national origin thereby targeting its enforcement activities. The Bill also changed rules on class actions automatically including employees in such claims unless they specifically opt out.
Impact: PFA subjects employers to wage related class actions with unlimited damages and makes it easier for employees to prove such claims.
Candidate Positions: H.R. 1338 passed the House but did not receive enough votes for consideration by the Senate. Candidate Obama is a cosponsor of the Bill. Candidate McCain has not taken any position on the Bill.
Summary: The so-called Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers (RESPECT) Act would change the NLRA definition of “supervisor” to exclude “working supervisors” who do not spend a majority of their worktime in strictly managerial duties excluding the tradition duties of assigning work and directing the activities of others.
Impact: Respect would allow many working or front line supervisors to join a union dividing their loyalties to the company, as they would be permitted to assist in the unionization of the company.
Candidate Positions: Candidate Obama is a cosponsor of the bill and Candidate McCain has taken no position on the Bill.
Prior Posts: Bosses do not Deserve RESPECT
If there is a Democratically-controlled House, Senate, and President, it is likely that some or all of the above legislation will be enacted in 2009. Others have commented on the HR landscape following the election: