Yesterday, in a historic development in American politics, Senator Barack Obama was elected President of the United States. President-elect Obama becomes the first African-American president in the country’s history.

The 2008 elections may have historic ramifications for employers as well. The selection of the Obama-Biden ticket, together with heavily pro-union Democratic majorities in both the U.S. House of Representatives and Senate, is expected to lead to a tidal wave of new employment-related legislation.

Likely Changes in Traditional/”Union” Labor Law

The Obama-Biden support for the union agenda is unquestioned. For example, in the current Congress, both President-elect Obama and Vice President-elect Biden co-sponsored, voted for, and throughout the campaign actively endorsed the Employee Free Choice Act (EFCA). Together with a heavily pro-union Democratic Congress, the union agenda will be difficult to stop.

The EFCA would replace most secret ballot union representation elections with a process of union-solicited employee signatures on authorization cards (“card check”). It also would authorize federally-appointed arbitrators to mandate wages, benefits and other terms of employment, binding for two years, if the parties cannot agree on a collective bargaining agreement for a first contract.

Both Obama and Biden also support the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act, which would reverse the current exclusion from unionization for front-line working supervisors under the National Labor Relations Act. This would mean that employers could no longer rely on the loyalty of front-line supervisors to represent them in union organizing campaigns, since such supervisors stand to become union members – in the same collective bargaining unit as the employees they supervise.

Ogletree Deakins has prepared a brief video explaining the EFCA and RESPECT Act, which will be extremely useful in explaining the ramifications of these measures to company leadership. The video is available free of charge to clients and for a nominal fee to other readers. Ogletree Deakins also has scheduled a 90-minute EFCA webinar on November 18, and a one-day intensive EFCA seminar on December 16, to help you prepare for these significant changes. Information on all of these resources can be found at the end of this e-alert.

Likely Changes in Employment Law

In the employment law arena, a pent-up agenda is likely to be unleashed in Congress over:

  • Eliminating the statute of limitations in pay discrimination litigation;
  • Lifting the $300,000 cap on damage awards in employment discrimination litigation;
  • Mandated paid family and medical leave, including paid sick leave;
  • Amendments to make class action litigation easier under the Equal Pay Act (and perhaps “comparable worth” legislation to increase pay for dissimilar jobs dominated by gender, race or ethnicity); and
  • Increased criminal penalties under the Occupational Safety and Health Act – just to name a few.

Employers also should anticipate, and take steps to prepare for, increased enforcement actions by federal government agencies such as the U.S. Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission. In addition, employers should prepare for increased civil litigation and greater jury awards for charges and complaints under various employment laws and regulations.

Note: This article was published in the November 5, 2008 issue of the National eAuthority.

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