Shock and awe! When Congress passed the Lilly Ledbetter Fair Pay Act on January 29, 2009, during the first week of the 111th Congress (without any committee action, little floor debate, and no amendments), and President Barack Obama quickly signed the bill into law (P.L. 111-2), it became shockingly clear to the business community how fast “change” could come to workplace law.

It’s not as if the Ledbetter Fair Pay Act was simply a small change to the federal laws prohibiting pay discrimi-nation. Under the new law, plaintiffs are no longer required to file charges of alleged pay discrimination within the 180/300-day statute of limitations measured from the alleged act of discrimination; instead, plaintiffs now may bring claims years or even decades after the action alleged to be discriminatory so long as the charge is filed within 180/300 days of the last paycheck received or, if the plaintiff is retired, within 180/300 days following the last benefit check. The law applies to actions for pay discrimination because of race, color, religion, sex, national origin, age and disability.

And, because the bill was rushed through Congress without proper debate (no “regular order”) there is no legislative history to define what the new law’s reference to “other (discriminatory) practice” might mean beyond pay discrimination. Business can now expect a litigation “gold rush” of stale claims from plaintiffs and their attorneys at a time when witnesses are unavailable, memories have faded, and records no longer exist to defend against the claims.

Employee Free Choice Act

That change was enacted as the first bill in the new Congress! Since then, the pace of workplace legislation has slowed, as Congress works to find a variation of the Employee Free Choice Act (EFCA), known as the “card check” bill, that can pass the Senate cloture vote. Several Senators and some in organized labor are seeking an alternative to EFCA, which could survive a required 60-vote “cloture” petition to end a filibuster on the motion to take the bill to the Senate floor. Senate negotiations for a variation of EFCA have begun in earnest following the announcement by Senator Arlen Specter (D-PA) that he has switched political parties.

Senator Specter has stated that he would still vote against cloture on EFCA because he opposes both “card check” in place of secret ballot elections to determine union representation and compulsory first contract interest arbitration in place of free collective bargaining. Senator Blanche Lincoln (D-AR) also has announced her opposition – both on cloture and final passage. Several other Democratic Senators have expressed varying degrees of displeasure with EFCA as introduced, but would welcome an alternative bill.

Senate Alternatives
Several Senate alternatives have been discussed, including “ambush” elections held within 10-14 days from the date a union petition is filed with the National Labor Relations Board (NLRB), or “mail ballots” (dubbed by opponents as “card check by mail” or post card check) sent from employees to the NLRB. Other variations include union access to employees at work, where outside professional union organizers would be entitled to campaign employees at work whenever the employer addresses employees at a mandatory meeting on the subject of unionization during an organizing campaign.

Also, “final offer” government arbitration has been discussed for first contracts where the parties cannot agree, similar to “baseball arbitration” where the two parties submit their final proposals to an arbitrator who chooses between them. Of course, one big difference is that baseball arbitration generally involves only issues of salary and duration of the contract, while in the workplace it would include all terms and conditions of employment.

What organized labor really wants is to: (1) prevent employers from campaigning against the union; (2) guarantee first contracts; and (3) impose stiff anti-employer penalties for labor law violations during union organizing campaigns and bargaining for a first contract.

It appears as if unions currently do not have the votes in the Senate to substitute signatures on union authorization cards for secret ballot elections to determine union representation. Although unions claim that EFCA merely gives employees the “choice” between card check and an election, in fact EFCA clearly provides that the unions would be able to gain automatic certification without a secret ballot election where they have secured a majority (50% plus one) of employees’ signatures. Thereafter, EFCA would prohibit the NLRB from scheduling a secret ballot election and require that the union be certified as the employees’ exclusive bargaining representative based on the signed cards.

Lacking the votes for “card check,” unions are exploring various alternatives, such as “card check by mail” and quickie “ambush” elections. Both of these proposals would reduce an em-ployer’s ability to campaign against the union.

Similarly, since government-imposed compulsory first contract interest arbitration has run into a roadblock, unions are now considering “final offer (baseball) arbitration.” Yet it, too, suffers from the same flaw as compulsory arbitration. A government arbitrator can set the terms and conditions of employment without appeal from the employer. This violates the first principal of national labor policy  – the government should not set the terms of a contract, nor guarantee a contract, but should simply serve as the neutral referee to determine that the parties are bargaining in good faith (whether or not they reach agreement). Baseball arbitration, like interest arbitration, would guarantee a contract, albeit one that has been forced on the employer and employees by the federal government.

House of Representatives Alternative
The National Labor Relations Modernization Act was introduced in March to address some of the same issues that EFCA attempts to rectify. Like EFCA, it would increase civil penalties and enforcement, but its other provisions depart from EFCA’s proposals. The compulsory arbitration provisions would only apply to employers with 20 or more employees and would give the parties 120 days to reach an agreement before a party could request the mediation and conciliation services of the Federal Mediation Conciliation Service (FMCS).

If FMCS is unable to mediate or conciliate an agreement after another 120 days, then it would be referred to an arbitration panel, which would have an additional 30 days to issue a decision. The terms issued would be binding for 18 months. Finally, the National Labor Relations Modernization Act would grant a union equal access to the place of employment to conduct a recognition campaign on the same basis upon which an employer campaigns against such recognition.


There is also speculation that a provision eliminating the National Labor Relations Act’s current “supervisory exclusion” for working supervisors, similar to the RESPECT Act, could be part of the EFCA alternative. That provision would eliminate the “assign” work and “responsibly to direct” employees duties from the list of supervisory indicia in the current law, and require that a majority of work time be spent on other supervisory duties listed in the statute (such as hiring, firing and discipline).

Eliminating “working supervisors” would classify such agents of the employer as “employees” subject to: unionization in the same bargaining units as the employees they supervise; payment of union dues; union work rules; union discipline for crossing a picket line or reporting to work during a strike; and so on, while removing the “duty of loyalty” employers currently can lawfully demand of statutory supervisors in labor relations. Such “working supervisors” also could solicit union authorization cards and campaign for the union.

What’s After EFCA? The Rest Of The Agenda!

An alternative to EFCA is expected to be announced before the August Congressional Recess. Once that issue is decided – passed, defeated or delayed until after the 2010 elections – the remainder of the workplace legislative agenda will come rushing like a torrent. Among the main issues which will be considered are:

Paycheck Fairness Act – creates unlimited punitive and compensatory damages under the Equal Pay Act; easier filing of class actions without requiring employees’ consent; limits exception for a wage rate differential based on “any factor other than sex” to include only “bona fide” factors such as education, training or experience; the bona fide factor defense applies only if the employer can show that such factor: (1) is not based on or derived from a sex-based differential in compensation; (2) is job-related with respect to the position in question; and (3) is consistent with business necessity. The bill also prohibits retaliation for inquiring about, discussing or disclosing the wages of the employee or other workers.

Healthy Families Act – would allow victims of domestic violence to use leave provided under the bill for needs related to the violence (such as court appearances and counseling); proposes an accrual system where workers earn one hour of leave for every 30 hours worked, up to a maximum of 56 hours/seven days (as opposed to the versions from last Congress that would have granted full-time workers seven paid sick days and part-time workers a pro-rata share of seven days); appears that it does not contain the “lock-in” provision that would prohibit employers from making modifications to their leave benefits upon enactment that were part of the proposals from the 110th Congress; provides for enforcement of its provisions by the Department of Labor (DOL); would be effective six months after the DOL issues regulations; and states that employees are not entitled to “reimbursement” for unused paid sick leave upon separation from the employer.

Paid Vacation Act  – amends Fair Labor Standards Act to require companies with at least 100 employees to offer at least one week of paid vacation per year; three years after enactment, those same companies would be required to offer at least two weeks paid vacation and companies with at least 50 employees would be required to provide at least one paid week off.

Equal Remedies Act – removes the cap on damages under all federal anti-employment discrimination statutes; unlimited punitive and compensatory damages would be available.

Arbitration Fairness Act – prohibits pre-dispute arbitration agreements for statutory employment laws.

Public Safety Employer-Employee Cooperation Act – creates uniform federal standard authorizing state public sector collective bargaining for police, fire-fighters and EMTs.

Working Families Flexibility Act – requires individual negotiations of requests for changes in work schedules, hours of work, and work location; includes mandatory formal meetings for consideration and reconsideration (with a representative present with the employee), written decisions (including proprietary financial and business information), federal investigations, litigation before an administrative law judge and federal court, and fines and equitable remedies (including an order granting the request).

Protecting America’s Workers Act – increases civil penalties and criminal fines up to $500,000 and individual imprisonment of up to 20 years in jail for workplace safety and heath violations.

In the event this list seems incomplete, do not forget to add comprehensive healthcare reform, immigration reform, and possibly federalization of state workers’ compensation standards.

Don’t Forget The Federal Agencies!

On the regulatory front, expect tougher enforcement of wage and hour laws, affirmative action requirements, occupational safety and health standards (also “ergonomics” through “general duty” enforcement) and pension laws under the leadership of pro-union Secretary of Labor Hilda Solis. Employers should expect more charges being filed, increased investigations and workplace inspections, less compliance assistance, and higher penalties.

At the NLRB, the addition of two union lawyers nominated by President Obama to be new Members – Craig Becker (lawyer for the AFL-CIO and SEIU) and Mark Pearce (union lawyer from Buffalo, New York) – together with Chairman Wilma Liebman, will give the agency a solid pro-union majority for the first time in a number of years. Over the objections of Member Peter Schaumber (and a second Republican Member yet to be named), the new majority will reverse many of the Bush Board cases and engage in rulemaking. As a result, when evaluating unfair labor practice charges before the NLRB employers should consider at the outset the likelihood of taking cases into the federal circuit courts of appeals.

Among the Bush Board decisions likely to be overturned are those placing restrictions on voluntary recognition (Dana Metaldyne; Dana Corporation; Shaw’s Supermarket); restricting supervisory solicitation (Harborside); placing employer restrictions on employees’ use of email at work for union organizing (Register Guard); limiting coverage based on supervisory status (Oakwood Healthcare) and graduate school teaching assistants (Brown University), and restricting the use of “salts” (Oil Capitol; Toering Electric), to name a few.

For a complete and detailed list of legislation, regulations, and priority en-forcement actions on a monthly basis, as well as “insider” information about status and prospects, contact Hal Coxson, Al Robinson, or Melissa Bailey in the Washington, D.C. office of Ogletree Governmental Affairs, Inc./Ogletree Deakins at, or or (202) 887-0855.

Note: This article was published in the May/June 2009 issue of The Employment Law Authority.

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