Well, this has been a pretty good run for me (he said, dripping with sarcasm). A couple of newsletters ago I was suggesting that we kill all the lawyers, which made a bunch of the partners here really happy (note: sarcasm present again), and now I have to admit that I was . . . well, I was just wrong.
Wrong about what, you ask? Well, let me tell you. I was wrong about what Congress was going to do. You see, we here at WNJ have been doing a series of programs on the new FMLA regulations, the Americans with Disabilities Amendments Act, and a short section on what we thought the first set of labor and employment law changes would be from the new administration and the 111th Congress.
Those of you who have been to these sessions saw me stand up in front of a room full of people, some of you included, on more than one occasion and say in my most authoritative lawyer voice: "THE EMPLOYEE FREE CHOICE ACT WILL BE HR 1, THE FIRST BILL CONSIDERED BY THE NEW CONGRESS AND THE FIRST BILL SIGNED BY THE NEW PRESIDENT." (In case you did not get that, the capital letters are to imitate my most convincing lawyer voice.) Guess what? I WAS WRONG! (Thought I should admit I was wrong in my booming lawyer voice, too.)
Not only was The Employee Free Choice Act not HR 1 in the 111th Congress, it has not even been introduced yet. What is that you say, not introduced? Yes, not introduced. Now I don’t want you to think that this means the new Congress and the new administration have abandoned their commitment to labor and/or employees, because they have not. In fact, the White House Web site, which can be found at http://www.whitehouse.gov/, says the following about the administration’s commitment to civil rights, for example:
Combat Employment Discrimination: President Obama and Vice President Biden will work to overturn the Supreme Court's recent ruling that curtails racial minorities' and women's ability to challenge pay discrimination. They will also pass the Fair Pay Act, to ensure that women receive equal pay for equal work, and the Employment Non-Discrimination Act, to prohibit discrimination based on sexual orientation or gender identity or expression.
Under the agenda items "Poverty," "Family" and "Women," the administration discusses:
Extend Paid Sick Days to All Workers: Half of all private sector workers have no paid sick days and the problem is worse for employees in low-paying jobs, where less than a quarter receive any paid sick days. Barack Obama and Joe Biden will require that employers provide seven paid sick days per year.
And under the agenda item "Family" the administration commits to:
Expand the Family and Medical Leave Act (FMLA): The FMLA covers only certain people who work for employers with 50 or more employees. Barack Obama and Joe Biden will expand the FMLA to cover businesses with 25 or more employees, and to cover more purposes, including allowing: leave for workers who provide elder care; 24 hours of leave each year for parents to participate in their children’s academic activities at school; leave for workers who care for individuals who reside in their home for six months or more; and leave for employees to address domestic violence and sexual assault.
What is most interesting to me is I did not see the word "union" on that Web site . . . anywhere. I could have missed it, but I looked twice. The Supreme Court decision the administration is talking about regarding fair pay is Ledbetter v. Goodyear Tire and Rubber Company. True to their word, Congress and the Obama Administration acted quickly on Ledbettter and introduced HR 11 and S181, the Lilly Ledbetter Fair Pay Act of 2009, which passed on January 29, 2009.
But wait, that is not all Congress has done. As of the last week of January, Congress had introduced the following employment-related bills:
HR 12, the Paycheck Fairness Act. (Designed to strengthen current laws against wage discrimination and help realize the promise of equal pay for equal work.)
HR 137, the Employment Eligibility Verification and Anti Identity Theft Act. (To require an employer to take action after receiving official notice that an individual’s Social Security account number does not match the individual’s name, and for other purposes.)
HR 243, the Labor Relations First Contract Negotiations Act of 2009. (To amend the National Labor Relations Act to require the arbitration of initial contract negotiation disputes, and for other purposes.)
HR 433, the REWARD Act of 2009. (To amend the Internal Revenue Code of 1986 to allow employers a credit against income tax equal to 50 percent of the compensation paid to employees while they are performing active duty service as members of the Ready Reserve or the National Guard and of the compensation paid to temporary replacement employees.)
So, how is that for sneaky? I told you Congress has not yet introduced the Employee Free Choice Act. But they introduced part of it. HR 243 is one-third of the Employee Free Choice Act, and in my opinion the worst part of it. The high profile card check provisions seem to have gotten lost in the bad publicity generated from taking away the right to a secret ballot election and the obvious disdain Congress seems to feel for the UAW in light of its part in the auto company bailout. Trust me on this; we will be keeping an eye on this bill. I don’t know what is going to happen with it, but it has no co-sponsors and that usually means it won’t come out of committee. Then again, I have been wrong before.
Editor's Note: Darn, he was wrong AGAIN! The Employee Free Choice Act was introduced in both houses of Congress on March 10, just as this newsletter was going to print. To read more about it, visit www.wnj.com/publications and click on our e-bulletin, "Congress Considering Employee Free Choice Act."