Finally, today is Election Day.  

And while the pundits tonight will all look forward to what the next four years might bring, it’s worth taking a quick peek back at Obama’s (first?) four years with a review of some of the posts from 2008-9.

Before his term, there were predictions that he would be good for employers, or bad for employers.   But I think that its fair to say that, with the notable exception of the NLRB, there really haven’t been a lot of changes to employment laws for the last four years.

You can chalk it up to a variety of reasons — bad economy, Washington gridlock, to name a few — but compared with the prior four years, in my view, employers haven’t had to worry about a lot of federal legislative developments.  (The rise in social media’s impact on employment, I would argue, has been much more significant.)

In 2008 alone, you had the Americans with Disabilities Amendment Act and the expansion of FMLA for military leave.  You also had new regulations for the Family Medical Leave Act.   

Remember what Obama pledged to get done?  A look at what happened showed a stalling out on a variety of issues.  Here are a few examples:

•Obama and Biden will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. (NLRB strengthened though impact lessoned as various proposals have been tied up in courts; EFCA never passed and has no reasonable likelihood of doing so)

•Obama and Biden will raise the minimum wage and index it to inflation. (While the minimum wage did increase in July 2009 to $7.25, that was as a result of a 2007 compromise bill. No further changes to minimum wage have been made since.)

•Obama and Biden will expand FMLA to cover businesses with 25 or more employees. They will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children’s academic activities; and expanding FMLA to cover leave for employees to address domestic violence. (No substantive changes to FMLA have been made.)

• As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. (Connecticut did pass paid sick leave, but no strong federal support was seen.)

Other bills that have not yet passed include the Employment Non-Discrimination Act, which would prohibit employers from discriminating against employees because of their sexual orientation. 

So what did occur? Among other things: Passage of The Lilly Ledbetter Fair Pay Act (though query whether this has had much impact in the workplace).  And nursing mothers received additional federal protections under “Obamacare”.  The EEOC also released new guidance on the use of criminal records and credit reports.   But overall, the impacts on employers have probably been far less than forecasted.

What do the next four years hold? For that, we’ll just have to wait until tonight.

Courtesy of Obama Campaign

Next up in this week’s series of employment law-related debate questions for the candidates: Vice President Joe Biden.

  • One of the big ideas of the administration early on was the Employee Free Choice Act. It’s an act that you publicly showed strong support for. The bill never passed and some of the ideas regarding “card check” seem on life support. What happened with the bill? What lessons have you learned from its defeat and do you still support its provisions, even if it is done through administrative rule changes, rather than legislation?
  • Why do you support the Paycheck Fairness Act? And why is that bill needed in light of all the other laws already on the books preventing pay discrimination, including the Equal Pay Act?

So, what do you think? What questions would you ask Vice President Biden related to employment law.

And don’t forget to check out posts from other employment law blogs here, here, here, and here.

The new and improved Connecticut Bar Association Annual Meeting went off without a hitch on Monday, chock full of information about labor & employment law.  Besides my seminar on the intersection of social media and employment law, the CBA held a forum in the afternoon on the "Practice of Labor & Employment Law in the Current Economy: Practitioners’ Perspectives".

There were numerous people on the panel including two from large national employment law boutiques, two who commonly represent employees, one who represents unions, and two government officials from the NLRB and the Connecticut Department of Labor.

The discussion ranged from the challenges presented by new trends in billing and rate structures; marketing and client development; the impact on insurance in employment cases and the public entity as your client or adversary.

Among the trends that have spotted is a somewhat surprising one: More representation cases are being filed at the NLRB, particularly in the Connecticut region. Indeed, the head of the NLRB’s Regional Office described the current environment as "boom times" for the agency.

He indicated that 3 new attorneys were hired and that they anticipated further changes and work as a result of a new General Counsel likely to start late this year.  After all, the General Counsel will set the tone by deciding what cases he or she wants to bring before the board. 

Why the increase? Part of it stems from the fact that because people cannot get new jobs quickly, they seem to want to try to have more of an impact in their current jobs.  In addition, the perception that the NLRB was a place to be avoided has shifted dramatically and the agency is now viewed as a place where complaints will be heard and perhaps looked at with a favorable eye. 

Even if Congress never passes the Employee Fair Choice Act (EFCA) bill, the NLRB is still likely to make changes to its internal procedures.  One example is a new poster that will be required effective June 21, 2010 for all federal contractors. It is quite possible that a version like this will be rolled out to all private employers by the start of 2011.  

Nevertheless, this represents a cautionary tale for employers in Connecticut. Although just seven percent of employees at private companies are unionized, the uptick in cases at the NLRB means that the labor union concept is far from dead. Indeed, don’t be surprised if the next few years show a bit of a reversal of fortunes for unions here.

I’ll talk about some of the other trends in an upcoming post or two. 

2009 will not go down as the most exciting year for employment law. There were a number of "honorable mentions" for items that have had an impact, but nothing — in my view really stands out.

I suppose for Connecticut, the Ricci v. DeStefano case has to be put up at the top of the list of noteworthy developments. After all, it’s rare that a case from the Constitution State gets heard in front of the nation’s highest court and even rarer that it is an employment case.

But six months after the case was decided, I still have a hard time seeing any wide-ranging impacts from the decision for private employers.  And frankly, I still think the case only drew the attention it did because of the nomination of Sonia Sotomayor (who was involved in the decision at the Second Circuit stage) to the U.S. Supreme Court.

As for the some other Supreme Court cases, the one that could stand out is Gross v. FBL Financial Service case — which addresses the burden of proof in age discrimination cases — have yet to explored fully and may be overturned by legislation in any event.  

I would argue that the biggest development for employment law isn’t a case or a new law, but the incorporation and adoption of social media — both in policy and usage.  It seems like every week or two, I’ve been asked to give a presentation or comment on an article on the topic.  In fact, a webinar I did earlier this year drew the highest attendance for any of our webinars.

But because social media wasn’t developed in 2009 and is really impacting life in so many different ways, I’m taking it out of the running for the biggest employment law story for 2009.

Other potential nominees for important employment law developments are:

  • The Lilly Ledbetter Fair Pay Act — But as I suggested last January, the impact of this new legislation has been limited. 
  • The FMLA amended regulations – Again, this had the potential to shake things up, but considering Connecticut has its own set of rules that haven’t been amended, all its done is create more headaches for employers
  • Employee Free Choice Act – This bill — which would get rid of some secret ballot union elections and institute mandatory arbitration for some initial collective bargaining agreements — has been on the table for much of 2009. If passed, it could have a large impact on employers in Connecticut and nation-wide. But so far, the votes haven’t been there.
  • The COBRA subsidy (and extension) – This was more of an administrative burden than anything else and while you could argue with the means that the government used, the intent — making sure that people did not lose their health insurance — was certainly laudable.  And with new health care legislation now looking like a reality, we’ll see whether revisions to COBRA are further discussed.   
  • GINA – The effective date for GINA was mid November 2009 and the government started to release new regulations enforcing GINA (which prohibits genetic discrimination in employmen).  But (yawn) here in Connecticut we’ve had that type of law for years. No big deal or change.  

(The Delaware Employment Law Blog shares its top 10 list, and the Ohio Employer’s Law Blog is doing the same for other issues.) 

What does 2010 hold in store? I’ll save that for another day….

Another manic Monday. So it’s time to roll out another edition of quick hits where I highlight stories you might have missed over the last week or two.

 

It’s been a busy week. The ABA Journal’s Legal Rebels project stopped by for a visit yesterday. We talked about the blog and how attorneys and clients can really take advantage of technology

(We also talked about bar association activities; my public thanks to all the people on the various task forces and committees as well as the CBA staff for their tireless work on the projects referred to. Profiles like this tend to understate the accomplishments of others so I’d like to publicly acknowledge those folks too.)

But with all else going on, there’s just enough time for another edition of "Quick Hits" where I touch on stories you might have missed recently:

 

The conventional wisdom lately is that the Employee Free Choice Act (EFCA or "Card Check" to others) will not pass in its current form.  (You can find my prior coverage of the EFCA here.) 

Over the last few days, however, various "compromises" have been floated. (H/T Shopfloor.) Of course, the very word "compromise" suggests some reasonable attempt to strike a middle ground, which is a debate in and of itself.

A Washington Post editorial over the weekend suggested that it is employer "intransigence" that is making such a compromise difficult.

WE HAVE SAID before that the Employee Free Choice Act is a flawed solution to a real problem: unfair barriers in the way of union organizing. We have been critical of the labor movement for its reluctance to consider alternatives that could level the playing field between labor and management. So we have, we hope, some standing to criticize a leading management group for its absolutist stance against not only the Employee Free Choice Act as written but also against compromise proposals. Instead of engaging in a good-faith effort to fix the problem, the group, the Coalition for a Democratic Workforce, chooses to deny that there is a problem.

Others, however, have a different view. Former NLRB Member Peter Kirasnow said the idea was "nonsense", going on to say that the idea that unions are in trouble because of the law was not supported by the evidence.

[T]he idea that the EFCA amendments presently being floated constitute a "compromise" is a peculiar usage of the term. As the editorial itself notes, EFCA opponents remain monolithically opposed to any form of the bill. The "compromise" is merely a recognition among Democrats that they can’t muster the needed support for EFCA from within even their own ranks.

Recent government data shows that unions are far from the underdogs in all elections (winning 66.8 percent of all elections in 2008 — the highest rate in over 50 years).  In fact, in 2008, the percentage of employees in unions went up

The White House has shown no desire to push this bill — in any form — right now with barely a mention of it on its website.  Whether some sort of bill is ultimately crafted that can garner enough votes for passage remains the question that everyone is still waiting on for an answer.

Employers should continue to track developments in this area but I wouldn’t be expecting a bill anytime in the immediate future.

Over the last few weeks or so, plenty of commentators have been hyperventilating over the Employee Free Choice Act — a bill pending in Congress. I’ve resisted the urge to do so in the belief that we were still a long way from passage and that the concepts in the bill were going to go through a lot more refining. 

 

This belief was also grounded in the fact that the White House had barely bothered to mention it on the website. Even today, type in "Employee Free Choice Act" or "EFCA" to the White House site and you get virtually no entries, other than a passing reference in a videotaped speech to the AFL-CIO. 

So, for anyone that’s been tracking votes, it came as little surprise to hear yesterday that Senator Arlen Specter of Pennsylvania signaled his opposition to the bill in its current form. 

In doing so, he proposed a number of alternatives for consideration to reform the National Labor Relations Act.  Among them:

  • Speeding up elections;
  • Broadening the scope of what an "unfair labor practice" is;
  • Increasing the penalties for violations of labor laws.

The EFCA Report has a full list of the alternatives and you can read the Senator’s prepared remarks on his website here.   You can also view his entire speech in the clip above.

By issuing a proposal (not exactly an "alternative" per se to the EFCA, but additional reforms), Senator Specter has indicated his willingness to pass SOME reforms of the nation’s labor laws.  But it is now unlikely that the EFCA will pass in its current form.

For employers, the best path may simply be to ignore the hyperbole and continue to focus on ways to improve your relationship with your workforce.  A responsive management that listens to its workforce and treats its employees fairly has always been among the best tools that an employer to keep its workforce from organizing, if that’s its desire.  

With the budget issues looming large over this session of the General Assembly, it’s tough to get a handle on what labor & employment law bills are still a possibility for this session. One way to do that is to check to see what bills have been reported out of the Labor & Public Employees committee because if the bill can’t make out of committee, it’s not likely to go anywhere.

So what’s still alive in this session?

There’s still a long way to go in the session, but the next few months promise to be busy with lots of employment law issues likely to be debated and pondered. For a full list of bills reported out of the Labor & Public Employees committee, you can click here.

Copyright 2009, Daniel A. SchwartzAfter months of nonstop speculation, the Employee Free Choice Act bill, which was introduced last year in Congress, is expected to be introduced later today by Rep. George Miller of California

But its passage this year is far from certain.  As the EFCA Report blog and others have stated, several senators, including Sen. Arlen Specter’s (R-PA), Sen. Lincoln (D-AR) and Sen. Landrieu (D-LA) are in the publicly undecided camp, leaving the filibuster in the Senate firmly in play for now. 

For employers, one thing is certain: You can use this time when the bill is being debated to hone up on the EFCA and prepare your workplace, if necessary, for its possible passage. Even if the EFCA is not passed this year, it is likely to come up for debate again and again. 

Frank Roche, of the KnowHR blog, has an interesting take on this as well with the publicity videos that have been rolling out both in favor of and against the passage of the bill as well. As Frank preaches, there’s no time like the present to get going on educating employees about the EFCA:

When is the best time to plant a tree? 10 years ago. And when is the best time to start communicating about EFCA? 10 months ago. If you didn’t already start, there’s no time like the present to get communicating about EFCA and its implications for your organization.

Update: 8:30 a.m.  Mike Allen’s Politico column has some other interesting nuggets about the EFCA’s introduction today:

  • Intensifying its campaign to defeat the measure, the U.S. Chamber of Commerce launches print and radio ads today in Pennsylvania, Virginia, Louisiana and Nebraska (all with key senators.) This coincides with nearly 200 small business leaders and Chamber members descending on the Hill to lobby against the measure. Afterward, some will tape interviews that will later be used in TV spots.
  • LINGO: The measure would allow unions to organize based on signed cards instead of secret ballots. Business calls it “card check.” Democrats, who hate the term “card check” as much as “the Democrat Party,” call it the “Employee Free Choice Act” or “EFCA.”