The Coming Storm: Will November Elections Dramatically Alter The Workplace?

July 10, 2008

For eight years, employers have operated in a relatively business friendly climate under the Bush administration – particularly before the various federal agencies that oversee labor and employment issues. Labor unions, in particular, have cast the Bush administration as “anti-union” and “anti-worker”. The upcoming November elections already promise to be interesting given candidates’ differences with respect to the Iraq war, the economy and sky-high oil prices. However, employers need to be aware that the November elections may also have a dramatic impact on labor and employment laws governing their day-to-day operations.

Recent Legislative Action

President Bush recently signed the Genetic Information Non-Discrimination Act, intended to prohibit the improper use of genetic information. The Act prohibits group health plans and health insurers from denying coverage to healthy individuals or charging such persons higher premiums based solely on a genetic pre-disposition to developing a disease in the future. The Act also bars employers from using an applicant or employee’s genetic information when making job decisions.

In addition, there are currently over a dozen labor and employment bills pending before the U.S. House or Senate. Most of these have stalled in committee or have little traction given a threatened presidential veto. However, a change in administration or further Democratic gains in the House and/or Senate could see the passage of many of these proposed bills, which would dramatically alter the landscape for employers.

Pending Bills

For example, Barack Obama has voiced his support for the Orwellian-named “Employee Free Choice Act” (EFCA) that, among other things, would replace secret ballot union elections currently conducted by the National Labor Relations Board with a “card check” procedure, pursuant to which an employer would be legally obligated to recognize and bargain with a union if a simple majority of employees sign union authorization cards.

The table below lists some of the pending bills and their implications:

Bill Title Proposed Changes in the Law
ADA Restoration Fairness Act
(proposed July 2007)
Intended to reverse several Supreme Court decisions that the Act’s supporters claim have significantly narrowed the reach of the Americans with Disabilities Act (ADA). For example, the proposed Act would determine whether an employee is disabled without regard to whether the employee is using any mitigating measures (such as hearing aids, glasses or medication). Presently, courts take into account mitigating measures to determine if an applicant or employee is a “qualified individual with a disability” and protected under the ADA.
Arbitration Fairness Act
(proposed July 2007)
Would make pre-dispute arbitration agreements in employment contracts unenforceable if made between parties of unequal bargaining power.
Employee Free Choice Act
(proposed February 2007)
As noted above, the Act’s provisions are intended to make it significantly easier for unions to organize employers. The EFCA also provides for binding arbitration during negotiations for a first contract after 120 days, and increases remedies available for unfair labor practice charges.
Employment Non-
Discrimination Act of 2007
(proposed September 2007)
Would prohibit discrimination based on sexual orientation and gender identity.
Equal Remedies Act
(proposed August 2007)
Would eliminate punitive and compensatory damages caps that presently exist under Title VII (which governs discrimination claims based on race, color, sex, national origin and religion).
FMLA Expansion Act
(proposed June 2007)
Among a number of proposed changes, the Act would extend FMLA coverage to smaller employers (25 or more employees) and authorize additional types of leave, including leaves for parent-teacher conferences and other school related functions.
Healthy Families Act
(proposed March 2007)
Would require employers with over fifteen employees to provide 7 days of paid sick leave for employees working 30 or more hours each week, with pro-rated sick leave for employees working less than 30 hours per week.
Ledbetter Fair Pay Act
(proposed June 2007)
Intended to reverse a Supreme Court ruling with respect to alleged discriminatory pay practices, to provide that a cause of action accrues each time an employee receives a paycheck affected by the alleged discriminatory practice. The Supreme Court’s Ledbetter decision held that the cause of action for a discriminatory pay practice accrues at the time the practice was made or adopted, such that successive payments do not trigger a new cause of action or extend the statute of limitations.
(proposed March 2007)
Intended to reverse a National Labor Relations Board decision that purportedly expanded the definition of “supervisor” under the National Labor Relations Act – important because only “employees” (not supervisors) are entitled to unionize or otherwise engage in protected activity under federal labor law.

Obviously, strong Democratic majorities in the House and Senate, along with a Democratic White House, would greatly enhance the chances of these proposed laws being enacted. Thus, employers will need to closely monitor these bills and the November elections as politics and events proceed.

For assistance in analyzing your company’s exposure under these proposed bills or monitoring or lobbying the Hill with respect to the same, please contact any member of the McGuireWoods Labor & Employment or Employee Benefits Teams.