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

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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Earlier today, President Obama welcomed Lilly Ledbetter to the White House and signed the Lilly Ledbetter Fair Pay Act.  You can find the text of the act here and even leave your comments on it. You can read the President's remarks here. And you can find the White House blog entry on the subject here.

In signing the bill, the President said:

So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it's not just unfair and illegal, it's bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn't about some abstract legal theory, or footnote in a casebook. It's about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.

Ultimately, equal pay isn't just an economic issue for millions of Americans and their families, it's a question of who we are -- and whether we're truly living up to our fundamental ideals; whether we'll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something -- to breathe new life into them with a more enlightened understanding that is appropriate for our time.

I've covered the bill extensively in prior posts, which you can find here, but some final remarks on this new law for now are worth mentioning:

• The final version of this bill does NOT contain provisions relating to the Paycheck Fairness Act. That bill -- which was originally part of the House version -- did not make it into the Senate version. Thus, the Senate will take that measure up separately, perhaps later this year. 
• The bill is retroactive to May 28, 2007, but as the SCOTUS Blog is quick to remind us, it does not "revive" claims that have already been dismissed with a final judgment: 

The new law, because it would apply to cases still pending that were filed the day before the Court’s ruling, or thereafter, it has the specific effect of overturning the Ledbetter decision. It cannot alter any case that has been finally decided, however. Congress had the authority to overturn the Ledbetter ruling because that was based only on the Court’s reading of a statute, and not a constitutional provision.

• The bill's main purpose is to extend statute of limitations on compensation decisions. But the effect of the bill will be to allow for a potential look back on compensation decisions for several years -- and perhaps much, longer.

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With a new administration now firmly in place, the President has wasted no time in appointing new chairs of the National Labor Relations Board and the Equal Employment Opportunity Commission. 

The EEOC has the details on the first appointment of Stuart Ishimaru as Acting Chair:

The U.S. Equal Employment Opportunity Commission (EEOC) today announced that President Barack Obama has appointed Stuart J. Ishimaru as Acting Chairman of the EEOC and Christine M. Griffin as Acting Vice Chair.

Ishimaru, whose term expires on July 1, 2012, has been a Commissioner since November 2003. He was confirmed by the U.S. Senate for a second term at the EEOC in December 2007. During his tenure, Ishimaru has primarily focused on large, systemic cases and in reinvigorating the agency’s work on race discrimination issues. He also played an instrumental role in the EEOC’s adoption of groundbreaking guidance on gender discrimination against workers with caregiving responsibilities.

The President has also tapped Wilma Liebman as the new Chairman of the NLRB. Details can be found in the NLRB's press release here.   Several blogs are suggesting that Ms. Liebman's appointment will signal a shift towards union-friendly decisions.  As one blog recently said:

President Obama has designated Wilma B. Liebman as the Chairman of the National Labor Relations Board (NLRB). As an ardent supporter of unions and a vocal critic of right to work laws and recent NLRB decisions promoting an employee’s ability to reject unionization, Liebman will surely take the NLRB in a new direction – and one that is not necessarily favorable to employers.

First appointed by former President Clinton, Liebman has served on the Board since November 14, 1997. Prior to joining the NLRB, Liebman worked at the Federal Mediation and Conciliation Service as Special Assistant to the Director and then as Deputy Director. In addition, Liebman has worked as a lawyer for the NLRB, the International Brotherhood of Teamsters, and the International Union of Bricklayers and Allied Craftsman. She is also an elected member of the Executive Board of the Industrial Relations Research Association and of the College of Labor and Employment Lawyers, Inc. ....

It is evident by this passage that Liebman views with disdain the “political influence” of the business community. As Chairman of the NLRB, it can be reasonably expected that she will direct the Board’s energies to enforcing labor laws, promoting collective bargaining, and issuing rulings that effectively overturn a number of Bush-era NLRB rulings that organized labor and some Democratic Senators are determined to reverse. Moreover, if the Employee Free Choice Act (EFCA) is ever enacted, the NLRB will have the regulatory opportunity to shape how the new law will operate in practice in a way that is favorable to organized labor. As a proponent of unions, Liebman will surely do just that if given the opportunity.

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With the change in the administration, the official White House website is now up. It's still a little sparse now but has such nifty features as an official White House blog. 

Of more relevance to employers and businesses, however, is the detailed list of the new adminstration's agenda.  While much of it is not terribly "new" (portions were up during the campaign and transition), it still feels more "official now".

You can view the civil rights agenda here, with other areas affecting employers such as disabilities, and paid sick leave and equal pay also detailed.

But what is missing as of early Tuesday afternoon is any reference to the Employee Free Choice Act (EFCA), a sweeping bill that is designed by its proponents to strengthen unions.

Under the Transition site (Change.gov), it was plainly listed under the Economy agenda.  A look at the same page in the official White House site contains a discussion of the Recovery and Reinvestment Plan with no reference to EFCA. 

Even stranger, when you type "EFCA" into the search term, you get no results.  And a search for "Employee Free Choice Act" shows no direct hits either. (Shortly after drafting this post and running the search, the White House site has temporarily gone offline -- presumably due to high traffic). 

It's very early into this new term and perhaps this was merely an oversight, but for those looking for a sign -- any sign -- that the new President will not make EFCA a top priority, perhaps -- just perhaps -- this might be it.

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Dear Mr. President:

Congratulations on your inauguration today!  I hope you enjoy the day because when you wake up tomorrow, I suspect that you'll realize there are a lot of items on your "to-do" list (though taking out the garbage probably isn't on there anymore.)

With two wars and a recession to deal with,  I wanted to bring to your attention an area of law that you might dismiss or overlook as trivial - employment laws.  The truth is that federal employment laws should be a cornerstone of your administration because it is these laws that regulate the employers that you need to hire people and get this country out of the economic funk it seems to be in. 

You might have missed it with your transition plans, but already employment laws in the United States have changed fairly significantly in 2009. Employers are having to now address amendments to the Americans with Disabilities Act, which broaden the scope of who is disabled.  You can read about those changes here.

And just last week, new regulations went into effect changing the way some issues are handled under FMLA. (Don't get me started on the differences in FMLA and CTFMLA).  New rules regarding E-Verify are also effective on February 20, 2009. 

Now there is speculation about a whole host of other employment law bills that Congress is considering.  Your campaign website certainly listed a wide assortment of changes you'd like to see.

Some bills are now a foregone conclusion, such as the Lilly Ledbetter Fair Pay Act, which survived a cloture vote in the Senate last week and is primed for passage.  But others remain under consideration, such as the Employee Free Choice Act.  Your recent comments suggest that you are looking for a compromise on EFCA, perhaps.

This blog has remained a decidedly a-political one, so you won't hear grandstanding from me about how these laws will "hurt" employers or don't go far enough to protect unions or employees.   Rather, let me suggest that you review these proposed bills through a prism that you seem to favor: Is there a problem with our current laws and what is it? Does this particular bill fix the problem? If it does, does it create new problems that didn't exist before?

Whatever you decide, you should understand the impact that even a bill as innocent as the Ledbetter Fair Pay Act has on employers. Passage of the Fair Pay Act will, in essence, require employers to better document their compensation decisions and then retain documentation of such decisions for years, if not decades.  So, while the bill allows workers who may have been discriminated against to sue, it creates more work for human resources professionals.  Is this a good use of resources? Perhaps. But it is a classic example of how a bill that is designed to "fix" one area of the law, will create other issues that may be unintended consequences.  

My only advice (and as lawyers, we get paid to give advice, so when it is free, take it with a grain of salt) is to seek the counsel of those moderates who understand the impact that every new law has on how businesses are able to function.  And be wary of those on both sides who suggest that without passage of certain laws, businesses or unions will not survive. The truth is always somewhere in between.

One of Hartford's most famous residents, Mark Twain, once said "Independence .... is loyalty to one's best self and principles, and this is often disloyalty to the general idols and fetishes."    The crowds in DC today are a testament to the belief in your character and principles.   I look forward to seeing how this all plays out in the months and years ahead.

I wish you and your family well over the next four years.  And should you ever need some counsel on employment laws, of course, I'll be more than willing to assist.

Warmest regards,  Daniel A. Schwartz

P.S. My kids say hi to Malia and Sasha. 

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UPDATED

My earlier post on the Obama Transition Team's pledge not to discriminate on the basis of gender identity has been picking up some press.  As I indicate, it is likely that this pledge will form the basis of an executive order when the new administration starts.

NPR interviewed me earlier this afternoon. You should be able to check it out at the top of every hour or, better still, go online and listen to the news. It should be up after 3 p.m. here.

I'll update this thread with additional press references as I learn about them.

4 p.m. Update: In addition to the radio interview, it is also listed in NPR's "News in Brief" section. 

11/8/08 Update: The ACLU has issued a statement praising the policy.  The Daily Kos picked up on the press release as well. 

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AS UPDATED 11/7 below:

In my earlier post, I highlighted the policy issues that are likely to be on the new administration's radar.

But suppose you want to work in the new administration, there's an "expression of interest" form that you can fill out too on the "Jobs" page.

Buried at the bottom of the page is this pledge:The Obama-Biden Transition Project does not discriminate on the basis of race, color, religion, sex, age, national origin, veteran status, sexual orientation, gender identity, disability, or any other basis of discrimination prohibited by law.

This signals a dramatic shift in the hiring practices of the executive branch because current law does not prohibit employment discrimination on the basis of gender identity.  (For a comparison, look at the current Bush administration's appointments page.) 

UPDATED: To clarify my earlier post, I didn't mean to suggest that the Executive Branch had permitted discrimination on the basis of sexual orientation. Indeed, Executive Order 13087 from 1998 added "sexual orientation" as a protected category for civilian employment in the Executive Branch. Federal law does not prohibit private employers from discrimination based on this category.  But this new statement extends the protection to gender identity and also signifies that the appointed positions (rather than the civil service positions) will be under this new standard for both sexual orientation and gender identity.

It's one thing to raise the issue in a platform.  It's quite another to start implementing a change like this almost overnight. And this has significant ramifications for the entire Executive Branch once the new administration starts.

It'll be interesting to see if any of the national lesbian, gay and transgendered groups pick up on this development. 

No need to wait until Inauguration Day. Things are changing right before our very eyes.

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Looking to make a change? Or curious about what the new Obama administration will have on its agenda?

Then the new administration website, Change.gov, is for you. It's now up (but as of 2 p.m., barely running -- likely due to the massive traffic the site is facing so give it a little time).   Parts of the site are also still under construction, including a fascinating "America Serves" section.

You can sign up for information, get information about seeking a position in the new administration or get detailed information on the agenda that the new administration is setting in a variety of areas. 

Lest you think that Obama will shift course, the agenda is identical to what he had on his campaign site, but it's important to revisit it in light of all the ink that's been spilled on where his priorities will be.  A look at the Economy area lists his "labor" agenda as follows: 

• Obama and Biden will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. Obama and Biden will ensure that his labor appointees support workers' rights and will work to ban the permanent replacement of striking workers. Obama and Biden will also increase the minimum wage and index it to inflation to ensure it rises every year.
• Ensure Freedom to Unionize: Obama and Biden believe that workers should have the freedom to choose whether to join a union without harassment or intimidation from their employers. Obama cosponsored and is strong advocate for the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize. He will continue to fight for EFCA's passage and sign it into law.
• Fight Attacks on Workers' Right to Organize: Obama has fought the Bush National Labor Relations Board (NLRB) efforts to strip workers of their right to organize. He is a cosponsor of legislation to overturn the NLRB's "Kentucky River" decisions classifying hundreds of thousands of nurses, construction, and professional workers as "supervisors" who are not protected by federal labor laws.
• Protect Striking Workers: Obama and Biden support the right of workers to bargain collectively and strike if necessary. They will work to ban the permanent replacement of striking workers, so workers can stand up for themselves without worrying about losing their livelihoods.
• Raise the Minimum Wage: Barack Obama and Joe Biden will raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit to make sure that full-time workers earn a living wage that allows them to raise their families and pay for basic needs.

In the "Work/Family" arena, he lists the following as his top priorities:

• Obama and Biden will double funding for after-school programs, expand the Family Medical Leave Act, provide low-income families with a refundable tax credit to help with their child-care expenses, and encourage flexible work schedules.
• Expand the Family and Medical Leave Act: The FMLA covers only certain employees of employers with 50 or more employees. Obama and Biden will expand it 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.
• Encourage States to Adopt Paid Leave: As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. Obama and Biden will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers. ...
• Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Obama and Biden will enforce the recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
• Expand Flexible Work Arrangements: Obama and Biden will create a program to inform businesses about the benefits of flexible work schedules; help businesses create flexible work opportunities; and increase federal incentives for telecommuting. Obama and Biden will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to request flexible arrangements.

Before employers and employees get too worked up about all of the above, remember that we are in the midst of the worst recession in at least a generation.  The problems weren't created overnight and it's unrealisitc to expect all of the above to be passed in the first 100 days -- and probably not the first 500 days. 

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Last night I started crafting a post weaving in the rejection of the Constitutional Convention question in Connecticut, with state election results and the election of Barack Obama.  And yet, in the clinical analysis of what it meant, something else seemed lost -- a sense of history and perspective.  Last night seemed bigger than just looking at what laws are likely to be enacted next term.

So, let me leave it to another post to break down what the election results mean to employers. That will come with some time.  (And for those who are really interested, I'll have more details on a presentation I'm giving on November 11th discussing that very issue.)

But for now, embrace this thought.  Only 44 years ago, Congress passed one of the most sweeping bills still in effect today -- the Civil Rights Act of 1964.  And every day, courts in the United States are still using that law to make decisions on dozens of court cases.  Its' purpose?

To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

And now, despite the short history between its passage and today, the nation just elected the first African-American President. 

Whatever your politics, it is a remarkable achievement and, as a history major in college, I feel pretty confident in saying that our nation's history books start a new chapter today. 

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Making good hiring decisions is one of the best ways an employer can avoid problems in the future.  In various posts, I've discussed ways of accomplishing this, through the use of reference checks, background screening, offer letters and the like. 

But for most employers, the single biggest "screen" of employees is through a review of a resume. For job applicants, a good resume may not get you hired, but a bad resume is the easiest way to not get hired.

The Ladders has taken a non-partisan approach to putting together "resumes" for each candidate.  (McCain's is available here; Obama's here.) It's an amusing and yet serious approach to looking at the qualifications of each of the candidates for the position they are seeking. 

Update: ABCNews.com just picked up on the story as well.

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With the election just two weeks away, employers can start to draw a sharper focus on the national issues at stake in the upcoming Presidential election. That said, much of what will happen will also depend on what happens with various Congressional races.  In other words, even if Senator McCain is elected President, we're still likely to see various issues raised in the next session of Congress.

Michael Moore has a terrific piece this week outlining the various bills that are likely to get debated after the election.  I'll be discussing some of them in upcoming posts (as well as issues relating to Connecticut's races), but Michael's post provides a good roadmap to the bills.

Among them:

Employee Free Choice Act (H.R. 800 and S. 1041)

Summary:  The EFCA amends the NLRA to change the procedures for union certification and first contract negotiation.

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.

 Ledbetter Fair Pay Act (H.R. 2831/ S. 1843)

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.

Paycheck Fairness Act (H.R. 1338/ S. 766)

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.

RESPECT ACT (H.R. 1644/ S. 969)

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.

The post also discusses the impact that each bill would have on existing law and the candidates' respective positions. 

(For another take, see The Word on Employment Law's collection of posts on the issues here.)

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 You might have missed it in the midst of the discussion of abortion and the Supreme Court but the issue of pay discrimination got a brief airing by Senator Obama during Wednesday's Presidential Debate. (You can view the transcript here). 

Here was the entire portion:

Obama: So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.

I'll just give you one quick example. Sen. McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination.

For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it's taken you too long to bring this lawsuit, even though she didn't know about it until fairly recently.

We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed

I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want.

Schieffer: Time's up.

McCain: Obviously, that law waved the statute of limitations, which you could have gone back 20 or 30 years. It was a trial lawyer's dream.

The subject was the decision in Ledbetter v. Goodyear.  The Manpower blog has a post earlier this week on the case that summarized it pretty succinctly (if overly so).  There's been a lot written on it as well including this good piece from The Word on Employment Law this spring. 

Unfortunately, the case has gotten so whittled down to a soundbite that the central holdings of the case -- regarding statute of limitations -- gets lost.  But you can read the bill that was proposed last year here.

 I summarized the issue in a post this summer: on a related bill, the Paycheck Fairness Act and reviewing it again, I think my comments are fairly on point with what occurred in the debate.

The issue in Ledbetter case was, in many ways, a technical question of how far back an employee should be able to go to challenge past pay practices -- in other words, about deadlines and "statute of limitations".  The Supreme Court said that the 180-day deadline found in the statute should apply. 

Should the statute of limitations remain at 180 days? 1 year? 2 years? 5 years? 20 years?  I don't suggest to know what the right answer is.  Ultimately, the answer to that question will help shape the Paycheck Fairness Act bill's final outcome and it should be the one that the politicians focus on. 

Employers would certainly like shorter statute of limitations and have good arguments that because supervisors leave, short statute of limitations prevent stale claims from being brought. But employees have decent arguments that a longer statute of limitations should apply because discriminatory pay practices are often learned of only after they occur. 

For employers, the debate over the Paycheck Fairness Act is one worth paying attention to because the real-world consequence of the bill's passage (whether now or next year) will be to increase the importance of documenting pay practices and to give employers another reason to preserve such documents for future litigation.   

Hopefully, as the bill progresses, we'll see more debate on the pros and cons on having longer deadlines to file suits.

We didn't hear much in the specifics tonight but we'll see if anything transpires in the closing weeks of the election.

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The Presidential debates and Vice-Presidential debate are coming up later this month.  A lot has been written about what the candidates' respective positions are (and a lot has been written on everything BUT the issues).  For some recent discussions of various issues, check out posts this week from the Delaware Employment Law Blog, Ohio Employer's Law Blog, and The Word on Employment Law.

While these analysis are helpful, we also have an opportunity to bring labor & employment law issues into the presidential forum through discussion and analysis. Indeed, each campaign has focused on some aspects of labor and employment law (like those found here (Obama) and here (McCain). 

So with that in mind, what one question would you like the debate moderators to ask each of the major party candidates?  If you'd like, just focus on one candidate or one issue you'd like each candidate to address. 

Here are my thoughts and I welcome you to post them in the comments below or on your own blog/website and let me know. 

Question for Obama:

You're supported the Employee Free Choice Act.  One provision of the act would allow unions to organize based on a "card check" instead of a secret-ballot election, which some have claimed is undemocratic.  Why do you support such a provision and why should Americans support this bill?

Question for McCain:

On your website, you've indicated that you understand "that today’s changing economy is making it harder for parents to balance the demands of family life and their jobs."  A bill introduced by Senator Kennedy this year  (S. 1085) would give employees paid sick leave to care for their families.   Why haven't you supported or co-sponsored this bill and why should Americans be against paid sick leave?

Question for Biden:

During this session of Congress, you have introduced over 100 bills. Yet none of them relate directly to labor and employment law issues.  Why is that and do you think that this area of the law really needs to change?

Question for Palin:

Your husband is a union member, a fact touted by your running mate earlier this month.  Do you support the Employee Free Choice Act? And if not, do you think that unions have enough support in existing laws?

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