In the recently convened Congress, we anticipate the revival of a significant number of labor and employment law bills previously introduced, but not enacted into law. The Democratic electoral successes suggest better prospects for the passage of these laws. In fact, one has already been rushed through the legislative process. However, those that appear to impose substantial cost burdens on business may be less palatable to Congress now that jobs have become such a critical concern.

Labor Law

In addition to the Employee Free Choice Act, discussed in a previous article, federal labor law would also be substantially altered by the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (the RESPECT Act).

This law would redefine “supervisor” for purposes of the National Labor Relations Act. As a result, many workers now deemed to be supervisors would be considered employees. As such, they would be eligible to form and join unions and enjoy other protections afforded to employees under the National Labor Relations Act.

Employment Discrimination Law

The following four efforts to modify existing employment discrimination protections were left on the table by the last Congress:

1. The Ledbetter Fair Pay Act, a response to a Supreme Court case strictly interpreting the time period within which pay discrimination claims may be brought. This Act has now been passed by Congress. It allows such claims to be brought within a specified time after the date of any discriminatory paycheck, rather than after the date the discriminatory pay practice began.
2. The Paycheck Fairness Act, which would amend the Equal Pay Act to make it more difficult for an employer to justify differences in pay between male and female employees. This Act would also protect employees who share salary information with their co-workers in furtherance of a sex discrimination investigation, and it would expand Equal Pay Act remedies to include compensatory and punitive damages. It has passed the House already this year, but may face a battle in the Senate.
3. The Fair Pay Act, which would require equal pay for “equivalent work.” Employers could not pay jobs that are held predominately by women or minority employees less than jobs in the same company held predominately by men or white employees if those jobs are “equivalent in value” to the employer. The Fair Pay Act would make exceptions for different wage rates based on seniority, merit, or quantity or quality of work, and would contain a small business exemption.
4. The Employment Non-Discrimination Act, which would add discrimination based on sexual orientation to Title VII of the Civil Rights Act of 1964.

Other Employment Issues

Other laws recently proposed involve a variety of other employment issues. These include:

• The Working Families Flexibility Act, which would create a statutory right for employees to request a change in the number of hours worked, when work is performed, or where work is performed. This Act would not require that the employer agree to any particular request, but would require it to meet with the employee to consider such requests and to provide a written explanation and satisfy other procedural requirements if it refused them.
• The Patriot Employers Act, which would provide tax credits to employers who increase the proportion of jobs located in the United States.
• The Employee Misclassification Prevention Act, which would require employers to keep records on and notify workers of their employment or independent contractor classification and their right to challenge that classification. It would also impose penalties on employers who misclassify employees as independent contractors.
• The Arbitration Fairness Act, which would ban mandatory arbitration agreements in the employment, consumer, franchise, and civil rights contexts.

In the current Congress, the House passed the Employee Free Choice Act (“EFCA”). Although current economic difficulties suggest that passing this legislation will not be an immediate priority for the President and Congress in early 2009, organized labor support was very important in the 2008 Democratic Party electoral success, and the EFCA has long been at the top of labor’s wish list. It is, therefore, expected to be reintroduced and to enjoy substantial Congressional and Presidential support.

The Two Most Significant and Troublesome EFCA Provisions

The EFCA contains two provisions designed to tilt the balance of power in union organizing and collective bargaining quite dramatically towards labor.

In achieving this objective, the first provision also deprives employees subject to union-organizing efforts of a right of privacy that is fundamental to democratic principles — the right to a secret ballot.

The second provision inserts a third-party decision-maker into some labor-management negotiations, depriving employers, employees, and unions of autonomy in establishing terms and conditions of employment.

1. Majority Sign-Up

The first troublesome EFCA provision involves certification on the basis of majority sign-up. This means that a union may be certified as a bargaining representative if the NLRB finds that a majority of employees in an appropriate unit has signed authorizations designating the union as its bargaining representative. (Once a union has been certified, the employer must bargain with it in a good-faith effort to agree on a collective bargaining contract.)

The key difference from current law is that presently, although an employer may voluntarily recognize a union under such circumstances, it need not do so.

Instead, an employer may insist on a secret-ballot election. This way, an employee may sign a union authorization under pressure from fellow employees or aggressive union representatives, yet still vote against the union in the privacy of the election booth.

Under present law, an employer also has an opportunity to campaign to change the minds of employees between the time they sign cards and the election. The frequent success of such campaigns, and claims of unlawful coercion of employees during them, are the main factors leading unions to support this dramatic change in the law.

Granted, there have been abuses under the present election system — by unions as well as employers. But in our opinion, and that of most of the business community, depriving employees of the right to a secret-ballot vote is no solution.

2. First-Contract Mediation and Arbitration

The second troublesome EFCA provision applies if an employer and a union who are engaged in bargaining a first contract are unable to reach agreement within 90 days after starting to bargain. Under the EFCA, either party may refer the dispute to the Federal Mediation and Conciliation Service (“FMCS”) for mediation.

If mediation then fails to result in an agreement after 30 days, the EFCA provides for the dispute to be referred to arbitration, with the arbitrator decreeing contract terms to be binding for two years.

The concern behind this aspect of the EFCA is that often the bargaining of a first contract proves so difficult that unions and/or the employees they represent get frustrated and give up.

Sometimes this occurs because employers abuse the system and do not bargain in good faith as required. But often unions are at least equally at fault. For example, unions may develop unrealistic expectations among employees when organizing them and/or may place their insistence on certain controversial contract terms above the employees’ interest in rapid approval of an agreement containing basic protections and competitive wages and benefits.

Here again, the proposed cure under the EFCA does not fit the disease. Giving a third-party arbitrator unbridled authority to determine contract terms for two years achieves the objective of rapid production of a contract, but at the expense of the fundamental principles of collective bargaining that have been at the heart of American labor policy for over seventy years.

Other EFCA Provisions

As proposed, the EFCA also includes stronger enforcement and penalties addressing employer unfair labor practices that occur during organizing activity and bargaining, including:

• Investigational priority
• Civil fines of up to $20,000 per violation
• Treble back pay

There are no concomitant enhanced penalties for intimidation and coercion of employees by unions.

Conclusion

The EFCA’s proposed changes to the National Labor Relations Act do not enhance employee free choice. To the contrary, under the EFCA, employees would lose substantial control over their employment — without a secret ballot, they would lose an important aspect of control over whether they belong to a union in the first place; and mandatory binding arbitration would potentially remove their right to decide whether to accept or reject a collective bargaining agreement.

We will continue to update you on the progress of the EFCA legislation. We anticipate that at least some portions of it will be enacted by a Democratic Congress and signed by a Democratic President.

However, there remains considerable, well-organized opposition from business groups. With sufficient pressure, even with Democrats in firm control in Washington, the contours of a final law may be less onerous to business.

For example, some knowledgeable sources suggest a possible compromise would be to preserve the secret ballot, but create an expedited election procedure to reduce employers’ opportunity to influence employee votes.

Your involvement in the political process concerning this matter of great interest to all employers can make a difference by helping to forge a reasonable compromise.

Additionally, since some form of pro-labor change is virtually a given, it is not too early to take a good hard look at your vulnerability to unionization and how to reduce it.

The ADA Amendments Act was passed overwhelmingly by Congress in response to years of court decisions narrowly defining who was sufficiently disabled to have rights under the Americans With Disabilities Act (“ADA”).

There was surprisingly broad Congressional consensus that these decisions had resulted in the dismissal of far too many ADA lawsuits without the courts ever considering the merits of whether there had been discrimination or failure to provide reasonable accommodation.

Changes in the Definition of “Disability”

To address this situation, the ADA Amendments Act retains the ADA’s basic three-fold definition of “disability” as either:

1. An impairment that substantially limits one or more major life activities;
2. A record of such impairment; or
3. Being regarded as having such an impairment.

However, it changes the way these statutory terms will be interpreted.

Most significantly, the ADA Amendments Act emphasizes that the definition of “disability” should be interpreted broadly, and:

• Directs the EEOC to revise its regulations defining the term “substantially limits” to require a lesser degree of limitation.
• Expands the definition of “major life activities” by including two non-exhaustive lists:
  • The first list adds many activities that the EEOC has not previously recognized (e.g., reading, bending, and communicating).
  • The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions”).
• States that mitigating measures, such as medication or prosthetic limbs, shall not be considered in assessing the existence of a disability, with the exception of “ordinary eyeglasses or contact lenses.” This means that in determining whether a person is disabled, their condition will be evaluated as if they were not using the medication or other mitigating measure.
• Clarifies that an impairment that is episodic or in remission is a disability, if it would substantially limit a major life activity when active.

Significance of These Changes

These changes substantially broaden the reach of the ADA, greatly expand the class of individuals who may be considered disabled, and significantly increase both the employer’s responsibility for reasonable accommodation and areas of potential liability.

Previously, in many ADA cases, employers were able to prevail prior to trial on the basis that the employee or applicant could not establish they had a disability for ADA purposes.

Now, many more ADA cases will be decided on the merits — on the basis of how the employer treated the individual, rather than whether the individual has a disability.

Individuals with medical conditions not meeting a common-sense definition of disability may now very well qualify as having a disability under the ADA.

Bottom Line for Employers

These changes to the ADA make it more important than ever to:

• Exercise care in making employment decisions involving persons known or believed to have significant medical conditions, even if not manifested in obvious interference with their activities.
• Take seriously all requests for reasonable accommodation from such persons (whether or not they use the “magic words” “reasonable accommodation”).