President Obama's Ambitious Labor Agenda Has Taken A Back Seat... For Now

by Stephen M. Darden, Esq.

The election of Barack Obama created a considerable amount of anxiety among the nation’s employers. As a Senator, the nation’s 44th President had been a co-sponsor of the Employee Free Choice Act (EFCA) as well as several other pieces of not-so-employer-friendly legislation. It seemed reasonable on inauguration day to assume that EFCA would be law by spring and that the trade union movement would cash in on having played an instrumental role in the President’s successful election effort. What’s more, EFCA was not the only item on Organized Labor's wish list - - - just the most important.

Now, nearly one year after the fall 2008 election, few would have predicted the events that have occurred. The near-collapse of the U.S. financial system demanded the Administration’s attention early on, and then the general economy — and the New Deal-inspired stimulus package designed to revive it — continued to dominate the Washington scene. Meanwhile, prominent Democratic Senators elected to fresh 6 year terms (such as Arkansas’ Mark Pryor) began to question whether the “timing was right” for comprehensive labor law reform. It has indeed been quite a year! And EFCA is clearly a lower priority for the President than his current focus on healthcare reform . . . or even the City of Chicago’s effort to land the 2016 Olympic games!

But, despite all of the items that seem to have jumped ahead of comprehensive labor law reform, employers would be foolish to think there will not soon be considerable legislative activity in the employment law area. Indeed, it is noteworthy to recall that the first law President Obama proudly signed was the Lilly Ledbetter Fair Pay Act, which overturned a 2007 decision of the U.S. Supreme Court and in effect makes each paycheck received by an employee a separate event that commences the running of a new time period in which to make a discriminatory pay claim.

Below is a summary of legislation that could affect employers, much of which has been proposed during recent terms of Congress:

Employee Free Choice Act (HR 800 / S1041) — The main feature of this Act is the alteration of the election process under the National Labor Relations Act through which employees become represented by a union in their workplaces. The current process, concluding with a secret ballot election in which elections are decided on the basis of a simple majority of the votes cast, would be replaced by a “card check” in which the union question would be decided by signatures of a majority of the affected employees. Lately, advocates of EFCA have argued that card check is already part of prevailing law, while failing to point out that employers are not required to honor this inherently unreliable method at the present time. EFCA has an excellent chance of becoming law, particularly if the secret ballot election is restored. Coupled with a “campaign period” that is reduced from its current 42-day timeframe, EFCA could be the key to Big Labor having the resurgence that President Obama has said he wants to see. President Obama's influence in this area was demonstrated recently when the employees of a Virginia company recently organized a union. During the pre-election campaign, part of the Union’s strategy was to convince employees that President Obama wanted them to unionize. The following quote from the President appeared on a campaign flyer that urged the employees to recognize that “Dignity, Justice & Respect comes with a Union Contract”:

We need to level the playing field for workers and the unions that represent their interests, because we know that you cannot have a strong middle class without a strong labor movement. We know that strong, vibrant, growing unions can exist side by side with strong, vibrant and growing businesses.

In reality, there are worse aspects of EFCA than the elimination of the secret ballot vote, specifically the arbitration of initial collective bargaining agreements. Look for a push for this law in the 4th quarter of 2009 / 1st quarter of 2010. It came close to making its way to President Bush’s desk in 2007.

RESPECT Act (S969 / HR 1644) — The “Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers” would amend the National Labor Relations Act by enlarging the number of employees eligible to unionize by redefining the term “supervisor.” The RESPECT Act was co-sponsored by then-Senator Obama in 2007 and would no doubt gain his signature if passed by the Senate and House of Representatives.

Independent Contractor Proper Classification Act of 2007 (“IPCA”) (S. 2044) and Employee Misclassification Prevention Act (EMPA”)(S. 3648) were both co-sponsored by President Obama when he was in the Senate in 2007 and 2008, respectively. Both proposed bills would regulate the classification of workers as independent contractors and impose penalties against unwary employers who violate their provisions.

Employment Non-Discrimination Act (HR 3685) — This bill proposes to alter the Civil Rights Act of 1964 to make sexual orientation a protected class. The ENDA easily passed the House of Representatives in 2007 but is yet to be considered in the Senate. President Obama is on record as stating he would sign such a bill into law if given the opportunity.

Public Safety Employer-Employee Cooperation Act (HR980).  This Act passed in the House of Representatives by an approximate margin of 4-1, and has not gone away.  If passed, the law would require the states to pass their own legislation to make it legal for police officers, firefighters and emergency rescue personnel to organize unions and negotiate pay, benefits and working conditions with the governmental units that employ them.  The Act would feed further growth of unions in the public sector, where they have flourished in recent years, and would also usurp the right of states to govern their own affairs.  Would President Obama sign such legislation into law?  As another candidate for national office was previously heard to say, "You Betcha!"

Employers clearly have reason to expect new challenges to be added to their efforts to maintain positive employer-employee relations. And the time to prepare for those challenges is now — before proposed laws like EFCA are actually passed.

Stephen Darden practices labor and employment law with Hunter, Smith & Davis, LLP. Certification as a labor and employment law specialist is not currently available in Tennessee.