Are you, as an employer, prepared
to do business with Barack Obama
as president and the Congress firmly
controlled by Democrats? You should
prepare, dramatic changes may be
in store.
The most significant potential
change is the Employee Free Choice
Act (EFCA). If it becomes law,
it will make it much easier for
unions to unionize workers. This
could substantially alter the American
business landscape and convert
American labor-management relations
into Canadian/European-style labor-management
relations. Here is why.
The EFCA declares that a company’s
employees will be unionized, and
the company will recognize and
bargain with the union, if the
union convinces a majority of the
employees to sign union authorization
cards. No election will be held.
No one will ask if the employees
understood what they were signing
or how it would impact their work
life. The result is the employer
will be prohibited from dealing
with those employees individually.
For many decades, signing authorization
cards merely entitled employees
to a secret-ballot election conducted
by the National Labor Relations
Board. If the union coerced an
employee to sign the card but the
employee, in his heart and mind,
was against being represented by
a union, the employee had the right
and privacy of going into a voting
booth and voting against unionization.
No one would know which way the
employee voted. If the union failed
to get more than 50 percent of
the votes, the employer did not
have to recognize or bargain with
the union. This sacred right of
the employee to vote his or her
conscience will be lost if this
legislation passes.
Republicans almost unanimously
oppose this act, and even some
Democrats oppose it. For example,
liberal icon and pro-union former
Democratic presidential nominee
George McGovern opposes it. Writing
in The Wall Street Journal (Aug.
8, 2008), McGovern observed:
“The key provision of EFCA is a
change in the mechanism by which
unions are formed and recognized.
Instead of a private election with
a secret ballot overseen by an
impartial federal board, union
organizers would simply need to
gather signatures from more than
50 percent of the employees in
a workplace or bargaining unit,
a system known as ‘card-check.’
There are many documented cases
where workers have been pressured,
harassed, tricked and intimidated
into signing cards that have led
to mandatory payment of dues. Under
EFCA, workers could lose the freedom
to express their will in private,
the right to make a decision without
anyone peering over their shoulder,
free from fear of reprisal.”
Notwithstanding the opposition
of McGovern and many other Americans
who desire good labor-management
relations, the Employee Free Choice
Act, or some version of it, is
almost certain to become law during
the first days of the Obama Administration.
The U.S. House of Representatives
voted in favor of the act in 2007,
but the Senate rejected it and
President Bush vowed to veto it.
Now, Obama supports the act. And
Democrats will now outnumber Republicans
in the Senate by a sizeable 59-41
majority rather than the current,
razor-thin 51- 49.
The EFCA would also provide for
mediation and binding arbitration
if, after the employees form a
union, the union and the company
fail to reach a first contract
in a limited time period. No longer
will the employer have the final
word on wages, hours and working
conditions. An arbitrator will
dictate all this. Lastly, the Act
would set tougher penalties for
unfair labor practices committed
during a unionizing drive or bargaining
on a first contract.
Employers should prepare now for
the possible passage of the EFCA.
Supervisors should be trained on
how to maintain a union-free environment.
Management should consult with
counsel to determine who is excluded
from the union’s grip based on
supervisory status, who (which
group of employees) is most likely
to face a unionizing effort, and
whether management can change the
composition of this group in an
effort to remain union-free. If
employers delay, it may be too
late.
The EFCA is just one of many changes
that may be in store for employers.
Another likely change (although
this will not change things much
for Connecticut and New York employers,
because a similar law already exists
under Connecticut and New York
state law) is the so-called Employment
Non-Discrimination Act (ENDA).
ENDA is a proposed federal law
that would prohibit discrimination
based on sexual orientation. The
exact parameters of ENDA are difficult
to predict, but it is quite possible
that ENDA will require, for example,
an employer to allow a male employee
to wear a skirt or dress to work,
in the case of a transgendered
individual. There already exist
some state and local laws (e.g.,
in California, Connecticut, Massachusetts,
New Jersey, and New York) prohibiting
sexual orientation discrimination
but this act would make it a national
restriction.
Another likely proposal is the
Paycheck Fairness Act, which increases
the amount of damages, and includes
the possibility of punitive damages,
an employee can collect if he or
she is paid less than a similarly
situated employee of the other
gender. The act would also mandate
training and other outreach efforts
by the Equal Employment Opportunity
Commission and the Labor Department's
Office of Federal Contract Compliance
Programs. It is unclear how much,
if at all, this will affect employers
in those states (for example, Massachusetts
and Connecticut) that already have
state laws providing compensatory
and/or punitive damages in such
cases, but the spotlight on this
issue does not bode well for employers
who discriminate, or who are accused
of discriminating, based on gender.
Employers should be aware of these
potential changes in the legal
landscape, and should plan accordingly.
Robert G. Brody and David
A. Robinson are attorneys with Brody
and Associates L.L.C., a Westport law firm that
represents employers in labor and
employment matters and that also
has offices in Stamford and New
York City.
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