What to Expect in 2009

The number one priority of the labor movement is the Employee No charge Choice Behave (”EFCA“).  EFCA would dramatically change the rules with respect to union organizing of employees by allowing a union to bypass the NLRB’s secret ballot election procedure.  If EFCA is enacted, an employer would be required to recognize a union as the representative of its employees after the NLRB has verified that a majority of the employees have signed union authorization cards.  After recognition, the employer and the union would have 90 days to negotiate their first collective bargaining agreement.  If they are unsuccessful, a mediator from the Federal Mediation & Conciliation Service (”FMCS“) would then become involved in the talks.  If a contract is not agreed to in the following 30 days,  the issues will be submitted to an arbitrator, who will have the power to make a final and binding decision on all open issues.   President-elect Obama was a sponsor of the EFCA bill when  he was a Senator and Representative Hilda Solis (nominee for Secretary of Labor) voted for it when it passed the House in 2007.  It is very likely that EFCA will be enacted, but not necessarily in the first One hundred days of the new administration and there may be some modifications made to the proposed collective bargaining procedures and/or to a proposed statutory worthwhile process for unfair labor practices.

President-elect Obama will be able to appoint 3 new Board Members to the 5 member National Labor Relations Board (”NLRB“) and to designate a new Chairman and General Counsel of the Board.  These appointees are likely to be more favorable to unions and workers than those appointed during the Bush administration.   Also pending in Congress is the “RESPECT” bill, which is intended to reverse a prior NLRB decision that broadly defined which employees were supervisors and thus exempt from union organizing efforts.

The U.S. Department of Labor (”DOL“) is expected to get increased funding and enlarge its staff, so that it will become more active in investigating and enforcing the numerous laws within its purview.  There are serious efforts to increase the minimum wage (”FLSA“) and to enact new safety rules (”OSHA“).  There is also talk of revising the 2004 DOL regulations pertaining to overtime exemptions, so that more employees will be entitled to overtime.

Several organizations that advocate for a more family friendly workplace  are expected to make an effort to have the Family & Medical Leave Act (”FMLA“) require paid leave.  There are several states that have recently passed such legislation.  The recently promulgated FMLA regulations are not expected to be changed in the near future.

President-elect Obama  also has the opportunity to appoint the Chairman, General Counsel and  Commissioners to the Equal Employment Opportunity Commission (”EEOC“) and that agency is expected to increase its enforcement efforts during the new administration.  Pending in Congress is the “Lilly Ledbetter Fair Pay Act”, intended to reverse the holding of a U.S. Supreme Court case, by allowing an individual to file an employment discrimination charge based on the last date that they were adversely affected by the alleged discrimination.

There are numerous other labor and employment bills pending in Congress which may be enacted as a result in the change in Congress and the administration, so stay tuned for an exciting 4 years.

Paul Cherner is a labor and employment attorney in Chicago, IL. Visit his blog at http://hrcounselblog.com.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
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