Articles

As published in the December 28, 2009 Connecticut Law Tribune

During the 2008 presidential campaign, Barack Obama promised workers change in the form of pro-employee legislation.  Last year, we predicted that upon entering office, Obama would move quickly to pass the Employee Free Choice Act (EFCA), which he co-sponsored in the Senate. We predicted wrong as we, and many others, underestimated the extent of the economic collapse and the rise of the health care issue, both of which have been the focus of White House and Congress during 2009.  As a result, almost a full year after taking office, many of Obama’s promises to workers remain unfulfilled. However, 2010 could prove to be the year of change.

Following Sen. Al Franken’s victory in Minnesota and Sen. Arlen Specter’s switch to the Democrat party, Obama has a full year ahead of working with a Democratic supermajority in the Senate (assuming the late Sen. Ted Kennedy’s seat is filled by a Democrat).

However, many pundits, looking at the recent Democratic losses in the 2009 gubernatorial elections, predict Senate Democrats will lose their supermajority in the 2010 elections. Accordingly, we predict that if the economy continues to improve, as soon as the health care issue is resolved, Obama will turn his attention back to the EFCA and other promised labor and employment legislation.

Below are highlights of some of the more important proposed legislation we are likely to hear about next year.

Employee Free Choice Act

The EFCA would amend the National Labor Relations Act to dramatically change the labor relations landscape.  Although legislators agreed to drop the “card check” provision (which practically would have eliminated secret ballot union elections), the EFCA could still greatly empower unions and increase unionization.

Among other things, EFCA’s new version may drastically cut the time employers have to campaign once an election petition has been filed. If employers only have five days to campaign (as some lawmakers advocate), employees will likely end up basing their decision on ignorance or, worse, inaccurate information from the union. Also, once employers become unionized, they will be forced into a contract by an arbitrator if they do not reach an agreement with the union within a few months.

Lastly, EFCA enhances penalties for labor violations, but only against employers and not unions! This is clearly an important law for unions, and many union leaders are concerned that 2010 may be the last chance in a long time for its passage. Andy Stern, president of the two-million member Service Employees International Union, recently urged Democrats to seize the opportunity to pass EFCA, stating: “They have 60 votes for the first time and probably the last time they’re gonna have it.”

Although many employers lost sight of the EFCA once card check was eliminated, they must refocus and begin taking preventative steps as it may be too late once this law passes.

Employee Leave Benefits

As we predicted, Obama and Congress have begun expanding the Family and Medical Leave Act (FMLA). In October, the president signed the National Defense Authorization Act for fiscal year 2010, which expanded the leave entitlement to family members of those in the military.

But Democrats have been seeking far greater leave entitlements. The question is: will we see mandated paid leave in 2010 (currently, the FMLA only authorizes unpaid leave)? One bill, the Healthy Families Act, would grant employees one hour of paid leave for every 30 hours worked for up to seven, eight-hour days per year.

There also is a move to expand coverage of the law. The FMLA Enhancement Act seeks to apply the FMLA to employers with only 25 employees, rather than the current 50 employees. That legislation would also extend FMLA benefits to victims of domestic violence and sexual assault. Similar legislation has been proposed several times in the past, but with Democrats controlling Congress, support has greatly increased, e.g., the Healthy Families Act has 120 co-sponsors in the House and 24 in the Senate.

Gay, Transgender Employees

As part of his presidential campaign, Obama promised to “place the weight of my administration behind the enactment a fully inclusive Employment Non-Discrimination Act to outlaw workplace discrimination on the basis of sexual orientation and gender identity.”

Earlier in June, Obama signed an executive order granting same-sex benefits to federal employees. The proposed Employment Non-Discrimination Act would go much farther by protecting public and private employees from discrimination based on sexual orientation and gender identity. This measure has 194 co-sponsors in the House and 43 in the Senate.

Furthermore, we also anticipate more comparable legislation on the state and local levels. Currently, 21 states, including Connecticut, prohibit discrimination based on sexual orientation, and 12 states also protect transgender status. More than 100 cities have also passed such laws. We expect these numbers will increase.

Age Discrimination

Last June, the U.S. Supreme Court decided 5-4 in Gross v. FBL Financial Services Inc. that to make a prima facie case under the Age Discrimination in Employment Act (ADEA), employees must prove that “but for their age,” the discrimination would not have occurred.

This is a much heavier burden than previously existed or the burden on employees for Title VII discrimination claims (e.g. race, sex, national origin). Because of this disparity, Democratic lawmakers proposed the Protecting Older Workers Against Discrimination Act. This measure would overturn the Supreme Court’s decision in Gross and return the employees’ burden of proof in age discrimination cases to the burden in Title VII claims. The bill, introduced on Oct. 6, already has 27 supporters in the House and 21 in the Senate.

Off-Duty Networking

Although this does not appear to be on the president’s agenda, we expect to see legislation, at least proposed, addressing employees’ off -duty Internet postings. This month, Facebook reported reaching 100 million users in the U.S. (350 million worldwide). As more Americans discuss their lives (including their work) online, there is a growing number of lawsuits by employees who were fired for something they posted online while on their own time and their own computer. However, while many states’ laws protect employees’ off -duty conduct, those laws generally focus on activities like the use of tobacco (e.g. Connecticut General Statute § 31-40s) and alcohol. Perhaps states may begin expanding protected off -duty conduct to include social networking.

Next year at this time, we will see if 2010 was more of the same or the year of change that we predict. Good luck to all of us.