The presidential and congressional elections equate to sweeping change in the political balance. What does this bode for labor and employment law?

I’d like to start a dialogue on the topic. Let’s endeavor to identify aspects of labor and employment law that we believe will change. We can track pending legislative and regulatory developments—some will come quickly. I’d like to identify information resources and organize a list of helpful links. Discuss, inform, debate, analyze, etc.

Here are a few issues to start:

1. Employee Free Choice Act. This legislation could radically change the National Labor Relations Act (NLRA) concerning (a) union certification by card check; (b) formation of initial collective bargaining agreements by arbitration; and (c) remedies against employers who commit unfair labor practices during before the first contract is formed. The consensus seems to be that with a Democratic majority in the Senate, and with President elect Obama’s stated support of the legislation, the legislation is likely to pass.

2. Employee Benefits. Will we see an amendment to the FMLA expanding coverage to smaller businesses? How about mandatory sick pay for employees? What about amendments to ERISA expanding employee recourse against employers? Health care mandates for employers/universal health care?

3. Discrimination Law. Will we see Title VII expanded to include additional protected classes, such as “family responsibility discrimination?” How about sexual orientation, through the Employment Non-Discrimination Act? Amendments to the ADA have been passed. What additional changes are on the way? Will the EEOC alter its enforcement policies? A reversal of the Ledbetter v. Goodyear decision through the Equal Remedies Act?

4. Wage and Hour. Will the federal minimum wage increase? Changes in class action law? Addition of punitive damages for violations of the FLSA?

5. Immigration enforcement. Under the Bush administration, there were regulatory efforts to impliment “no match rules” and there were increased employer raids and other enforcement actions. What now?

So off we go! Please add to the list, add your thoughts, and contribute your resources.

Biggest issue (for me) will be whether Congress leaves in place the mandatory interest arbitration provisions of the “free choice” act.  Card checks by themselves won’t be that big a problem—unions that do their groundwork generally win the election anyway if they have a majority of employees who have already signed cards. 

Much bigger issue is the contract that the union gets (or does not get) after recognition.  Can an interest arbitrator include an interest arbitration clause in an imposed agreement?  What about an evergreen clause?  This would be a radical shift in thinking about labor relations in America—when the parties to a collective bargaining relationship can be compelled by the government to comply with a “contract” that the Company never agreed to.  It’s insane in some ways—is it even constitutionally enforceable under the Commerce Clause? 

I don’t even mind mandatory mediation by a Federal Mediator, as long as it’s not binding.  If the unions have the threat of a mandatory interest arbitration after 4 months of bargaining, the unions will have no incentive to be reasonable at the bargaining table.  As “precedent” starts to grow up around interest arbitration awards, I would wager that arbitrators will tend to favor imposed contracts that look like negotiated contracts in the general industry—which means that an employer will get a “contract” that gives a newly organized unit the same rights that other units have won only after years of give-and-take negotiations. (e.g., grievance and arbitration procedures, work jurisdiction, premium pay, holiday premiums, vacation schedules, minimum staffing requirements, etc.)  Why agree to a status quo deal with minimal improvements in a first contract (currently the norm) when an arbitrator is almost certain to give you more?  Companies will then tend to agree to deals they wouldn’t currently dream of, just to avoid the uncertainty of an imposed contract from an arbitrator.  it will shift the balance far, far toward the unions in first contracts.

If I were a union struggling along under a contract I didn’t like, I would probably consider getting my unit to decertify, wait one year, then re-organize and demand new negotiations, resulting in an imposed contract that’s likely to be much better than the contract I had before.  it’s insane.