Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

The New York Times this morning is reporting that a group of moderate Democratic Senators have been discussing a bill that would eliminate the "card check" provision from the Employee Free Choice Act legislation but would keep other aspects such as a speedy election.

According to the article:

Though some details remain to be worked out, under the expected revisions, union elections would have to be held within five or 10 days after 30 percent of workers signed cards favoring having a union. Currently, the campaigns often run two months.

To further address labor’s concerns that the election process is tilted in favor of employers, key senators are considering several measures. One would require employers to give union organizers access to company property. Another would bar employers from requiring workers to attend anti-union sessions that labor supporters deride as “captive audience meetings.”

Not surprisingly, the National Association of Manufacturers has derided this "compromise" because it still contains a binding arbitration provision.

Meanwhile, binding arbitration — a process that denies both employers and employees a voice — remains in the bill. Any labor bill that contains binding arbitration is unacceptable to employers, who need to actually run their companies in order to create products and pay employees.

This bill, if passed, would affect employers across the country, including those in Connecticut. 

This remains a fluid situation but with the votes as close as they are in the Senate, expect to hear more about it in the weeks to come. 

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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.

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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?

• HB 5521 would prohibit the use of credit reports as a basis for making employment decisions absent an exception.   Employers may use such reports when required by law, when it is "substantially related to the employee's current or potential job" or the employer has "reasonable cause to believe that the employee has engaged in a specific activity that constitutes a violation of law. One strange provision? The proposal doesn't use existing employer/employee definitions, which makes little sense.
• HB 6821 would institute civil penalties of up to $300 for failure to comply with various personnel files laws (such as providing employees with access to the law).  While the law presently requires access to personnel files, this bill would give additional power to the Department of Labor to enforce these provisions.
• HB 6187 is this year's Paid Sick Leave bill that would mandate employers provide their employees with days off for illness. I've previously discussed this bill extensively here. 
• HB 6188 is an attempt to introduce the concept of "workplace bullying" into the workforce; the present bill would not legislate away such conduct but would instead require a state agency to report on the level of "abusive conduct" in the workplace.
• HB 6189 would require every employer to include in its quarterly wage report the wages, gender, and job classification of each employee during the reporting period. Currently, employers must submit wage reports that include (1) employee names, (2) Social Security numbers, and (3) wages earned in the quarter.
• There are also several bills relating to labor matters, including SB 365 (which would prohibit captive audience meetings),  and HB 6534 (which would create a "card check" mechanism under the State Board of Labor Relations, similar to that being proposed at a federal level). 
• SB 710 would amend the state's FMLA laws to bring it more in line with the federal FMLA, regulations as well as add provisions for military servicemember care leave.

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.

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After 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.”

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There's been some speculation this week that with the Republicans picking up an important 41st seat in the Senate in 2009 (thus having enough votes to filibuster theorhetically), the prospects for passage of the Employee Free Choice Act have gone down, at least in the short term.  I'd add to that notion that proponents will have a tough time passing a bill in this economic climate that its opponents will say will hurt U.S. jobs. 

Two other considerations: Today's unemployment numbers -- while not that unexpected if you've been reading the headlines -- still sound and look bad.  In additiion, there has been negative publicity for unions arising out of the U.S. car makers rescue plan (though an interesting counter to this is suggested by this article.) 

But employers are fooling themselves if they think that this bill (or some form of it) will disappear. It may end up being delayed, but it is certainly not dead. Indeed, it may be modified significantly, to make it more palatable to the Senate.

What this means for employers is that they may have some more time to prepare for EFCA's passage.  And employers who have not traditionally been targets of union organizing campaigns may find themselves unprepared.  Here are a few ideas to think about:

1.  Get HR Involved

• Bad economic times and uncertainty in the workplaces create situations that unions may seek to take advantage of.  Laying off staff -- particularly your front-line human resources employees -- may only make matters worse.  Thus, educating your HR staff now about the bill should be among the top priorities.  
• In doing so, review your current policies and practices to figure out where your vulnerabilities lay -- and your strengths as well.  Perhaps you have a weak anti-solicitiation provision or a policy that allow for unfettered e-mail distributions.  And perhaps, your company would welcome a union.  Either way, take a broad look at your situation to determine whether your company is positioned to handle a union organizing campaign. 

2. Emphasize Compliance and Fairness

• Make sure your HR staff AND your supervisors understand the importance of complying fully with applicable laws by treating employees fairly and in a non-discriminatory fashion.  Having prompt and effective communication is crucial in this process. In the absence of clear communications, employees will naturally insert rumor and speculation into it.   And don't forget to educate your supervisors about the do's and don'ts regarding unions.    Most importantly, make sure you aren't creating legal issues where they shouldn't exist; get outside counsel now to advise you on these types of issues and avoid potential pitfalls.

3. Develop a Strategy

• Once you've taken stock of your policies and procedures and worked with your HR staff to emphasize compliance, consider developing a business plan as to how you will respond to potential organizing campaign by the union.  Educating your employees about EFCA and the potential card check provision should obviously be part of that strategy.  And develop and use an open-door policy that gives employees a place to go to answer questions they might have (or even an internal webpage that might address FAQs). 
• Identify the people within the company who will be responsible for developing a quick-action response, if needed. Often times, employers learn about union organizing campaigns very late in the process.  Thus, develop a plan of action beforehand and work with outside counsel to be ready to go on a moment's notice one you learn of a campaign.

There are plenty of other sources on the topic this week, including the Labor and Employment Law Blog and EFCA Updates, (And for more on the provisions of EFCA itself, Walter Olson has added his thoughts).  Obviously, there is much more to this topic than can be summarized briefly in a post. But for employes who don't have unions, the time is now to start thinking about the effect that the bill's passage may have on their businesses. 

(H/T for some links, Ohio Employer's Law Blog)

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