Potential Labor/Employment Law Changes in the New Political Environment
2008-11/19 Ronald J. Rutlin

At both the state and federal level, the recent election resulted in both the executive and legislative branches being controlled by the Democrats.  As a result, many are predicting a major change in the nations’ labor and employment laws.  As a result, several pieces of legislation that were unable to gain traction in the past are likely to receive renewed attention.  In addition, at the federal level, unions will be pressing for a more “employee-friendly” National Labor Relations Board.  The following is a summary of some of the changes that employers can anticipate may occur in this changed political environment.

The Employee Free Choice Act

Passed the House in March 2007 and a top priority in the Obama administration.  Dramatically changes the process through which unions become certified as a collective bargaining representative of employees as well as the negotiation of initial collective bargaining agreements.  Would eliminate secret ballot elections, require employers to commence bargaining within ten days after receiving written request to bargain following a union certification.  Would also mandate binding arbitration of an initial two (2) year contract if the parties cannot reach agreement on a contract within 120 days.

FLSA Amendments

A proposed amendment would result in increased penalties for employers that misclassify workers as independent contractors.

National Labor Relations Board Appointments

The new President and Congress will be able to fill currently vacant National Labor Relations Board positions.  Expect a new Board to address topics such as employee use of e-mail systems to conduct union activities, right of non-union employees to have representation during disciplinary interviews and further limitations on the ability of employees to file decertification petitions.

Re-Empowerment of Skilled and Professional Employee and Construction Tradeworkers Act

(the RESPECT Act)

Would narrow the definition of a “supervisor” under the National Labor Relations Act which would allow many more employees to organize under the National Labor Relations Act.

The Ledbetter Fair Pay Act

Aimed at reversing a Supreme Court ruling making it easier for employees to sue for pay discrimination.  Each time an employee receives a paycheck or pension payment, the time period for filing a claim would be restarted.

The Arbitration Fairness Act

This legislation would prohibit companies from using predispute arbitration agreements that require arbitration of employment, consumer, or franchise disputes.  Would also invalidate predispute arbitration agreements for conflicts “arising under any statute intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power.”  Would not affect arbitration provisions in collective bargaining agreements.

Paycheck Fairness Act

Passed the House in 2008 and requires employers to justify unequal pay and requires employers to prove that pay decisions are job-related and consistent with business necessity.  Also prohibits employers from retaliating against employees who share salary information with co-workers.

The Healthy Families Act

The bill would require employers with at least fifteen (15) employees to provide seven (7) paid sick days per year.  Failed to gain traction during previous session of Congress, but was co-sponsored by Obama.

The Patriot Employers’ Act

In an effort to curb outsourcing, Senator Obama co-sponsored The Patriot Employers’ Act which would provide a tax credit to employers who increased the number of full-time employees in the United States relative to the number of full-time employees working outside the United States.

Trade and Globalization Adjustment Assistance Act

Legislative proposals which passed the House of Representatives in the 110th Congress include requirements that business provide workers with advance notice of pending layoffs and penalizing employers that fail to do so, extending health care and COBRA coverage to certain layoff situations.

SB 165/AB 310 – Cause of Action in Court and Punitive Damages in Wisconsin Fair Employment Act Cases

Creates compensatory and punitive damages, along with jury trials, for Wisconsin Fair Employment Act claims.  Further, the bill calls on the Wisconsin Department of Workforce Development to undertake a “pay equity” study.

SB 195/AB 395 – School Conference and Activities Leave

Expands the existing Wisconsin Family and Medical Leave Act to permit employees to take 16 hours of leave per year to participate in school activities and conferences.

For further information, please contact Attorney Ron Rutlin, who prepared this article, or any of the attorneys within the Employment, Labor & Benefits Practice Group of Ruder Ware:  Jeffrey Jones, Dean Dietrich, Mary Ellen Schill, Christopher Toner, and Sara Ackermann.  

© 2008 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.
This document provides information of a general nature regarding legislative or other legal developments. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed.