The Obama Board - EFCA Is By No Means the Whole Deal

The Employee Free Choice Act has certainly garnered the majority of ink and/or pixels in discussions about the possible changes in the law of labor relations, but it is by no means the only change on the horizon. In fact, as has now become abundantly clear, EFCA is subject to the vagaries of the legislative process which is biased in favor of doing nothing. What form of legislation, if any, can pass remains a very open question.

One other question however was decided on the night of November 4, 2008. When President Obama was elected it was certain that within some period of time there would be an Obama National Labor Relations Board. Currently the Board is operating with two members, but three others have been nominated and when they are confirmed, there will be a 3-2 Democratic majority.

For a look into what that may mean, two of my Ogletree Deakins colleagues, the father/son duo of Hal and Chris Coxson, have prepared a monograph for the U.S. Chamber of Commerce, The National Labor Relations Board in The Obama Administration: What Changes to Expect.

According to the Chamber's press release announcing the report:

The purpose of this publication is to provide an overview of how the law administered by the NLRB is likely to change during the Obama Administration. The vast majority of this analysis is focused on cases decided by the Board in recent years that Democratic Members of the Board dissented to and that organized labor has criticized. While some of these cases are high profile, such as the Board’s decision in Dana/Metaldyne that effectively gives employees notice before a union and an employer can circumvent the law’s secret ballot process for union recognition, others are much less well known. However, reversal of these technical rules, such as whether permanent strike replacement workers may be hired on an at-will basis, as discussed in Jones Plastics and Engineering Co., collectively will increase union leverage in every aspect of labor-management relations.

In addition to the changes to existing precedent, it is also possible that for the first time since the 1974 rules relating to health care institutions, the Board may engage in substantive rule making.

You can download the full report from Chamber's website [pdf]. Happy reading.

Did Kennedy's Illness Prevent EFCA Passage?

That seems to be what Senator Harkin was saying in yesterday's report in The Hill,Harkin: Kennedy’s illness stopped card-check vote back in July. According to the story, Harkin had an agreement supported by organized labor and with Kennedy would have had the 60 votes, but Kennedy was too ill to come to capital hill to vote.

The details of that agreement according to Harkin: "I will not say because it was closely held, it never leaked out and it still hasn’t." No kidding.

That EFCA was ever that close to actual passage would be a shocker. While I obviously don't know, something about it just does not ring true. And I am not the only one who wonders, Card Check: Harkin Then, Harkin Now.

Helmets

I do not cover my professional activities on these pages and have thus far avoided the question of helmets. However I have a letter in this week's Cycling Weekly responding to a call from another cyclist to 'wear your helmet'. It is one thing to hear this from a non cycling Judge (as to which I have vented my views in the New Law Journal and elsewhere, see http://www.newlawjournal.co.uk/nlj/content/personal-injury-blame-victim); I do worry though when cyclists themselves look to secondary and uncertain hope of injury reduction rather than the avoidance of accidents. I would like to see increased criminal penalties for those who speed, use mobile phones or drive carelessly/inconsiderately in the vicinity of a vulnerable road user. I say this as a cyclist rather than a lawyer but am all too aware of the lack of zeal often exhibited by prosecuting authorities in motoring cases.

Thames Velo Hillingdon Crit Saturday 5th September

My club's turn at Hillingdon today so after a very inactive August I raced again. This week's crash was in the simultaneously run E/1/2/3 race and they were just picking themselves up as the 4th cat race came through. Had a few digs off the front but nothing lasted and the inevitable bunch sprint at the end is not for me. I finished in time to gawk in admiration at the two man leading break in the senior race containing my recent team mate, Harry Bulstrode, who chose our race to get the necessary points for Elite status. Tragically he punctured with 3 laps to go but still kept ahead of the chasing break of 5 to come in 2nd. One day I hope to emulate that with a break that works.

Employees in Limbo Land - EEOC Challenges the Solution

One of the great dilemma's for employers are employees who go on long term leaves of absence. Absent some sort of policy that puts a deadline on how long that leave can be, I have seen employers with untold numbers of individuals who may or may not still be employees. My term for them: "lost in limbo land."

In Texas, where workers compensation retaliation has always been a major cause of action, the law has evolved so that a leave policy which results in termination after a fixed period of time, applied uniformly without regard to whether the leave of absence was based on a work related or non-work related injury, is a valid defense to those claims. For a long time, we have cautioned that the EEOC took the position, at least theoretically, that such policies could be a violation of the ADA. However, during the Bush administration, as far as I know, they did not pursue litigation to that effect.

But as we all know it's now a new day and Employment Law 360 ($) has the story of a recent lawsuit filed in the the Northern District of Illinois, that raises that specific issue, UPS Medical Leave Policy Violates ADA .

The key paragraph from the Complaint:

Since at least 2002, UPS has maintained an inflexible 12-month leave policy which does not provide for reasonable accommodation of employees with disabilities and which instead provides for termination of their employment, in violation of Sections 102(a)and 102(b)(3)(A) and (b)(5)(A) of Title I of the ADA, 42 U.S.C. §§ 12112(a) and 12112(b)(3)(A)and (b)(5)(A).

Accompanied by this message from Stuart J. Ishimaru, the acting Chairman of the EEOC:

This case should send a wake-up call to corporate America that violating the Americans with Disabilities Act will result in vigorous enforcement by the EEOC. The ADA has been the law of the land for nearly two decades now, and employers simply have no excuse for failing to abide by its provisions.

With all due respect to acting Chairman Ishimaru, its not all that clear. And in fact, in the story, UPS denies that it has an automatic policy, instead saying it has granted exceptions to its policy for employees who seek accommodation under the ADA, and the 12 month deadline is "not automatic or absolute."

Although there is a long way from a complaint to an appellate decision that would provide a definitive answer, this one at least initially appears to be set up to do so.

Hopefully, as this case wends it way through the judicial process, the courts will understand that this is an issue that has significant practical impact and one in which a ruling that does not take into account the need for employers to have control over who and who is not an employee in situations involving long term absences, could wreak considerable havoc.

Update 9.14.09: This is obviously not a one time idea by the EEOC, or at least the Chicago Region, as Employment Law 360 ($) is reporting a second employer has been sued for having a one year leave policy. See, EEOC Targets Supervalu In New ADA Class Action.This suit is also filed in the Northern District of Illinois but it also merited its own press release from the Commission.

The Perks of a (Lifestyle) Blogger

When I started this venture more than seven years ago, maybe I should have chosen my topic more carefully. Although who could have predicted what blogging would become:

Blogger Test Drives An automaker is interested in providing vehicles for bloggers to test drive for a few days and to write about the experience. They’re not looking for auto bloggers, they’re looking for lifestyle bloggers who cover topics like travel, fine dining, and culture. They will arrange the drop-off and pick up of the vehicle. If you’re interested, please contact ......... with your blog name, content overview, URL, Technorati authority, and contact information. (From form email I received today.]

The first reader with a convincing argument connecting labor and employment law to, let's say luxury convertibles, get's the first ride!

The Latest On EFCA

The folks at EFCA Report who have been chronicling developments on this proposed legislation have their latest update, with some fairly definitive words from Senate Majority Leader Reid (D-NV) on EFCA: "Too Many Other Things on Our Plate". Of course, since the statement was made to the Las Vegas Chamber of Commerce, not a place where a pro-EFCA comment would likely be well received, it might be one of those statements that is subject to change.

Still, the other developments mentioned in their post, including the death of Senator Kennedy and the current state of Massachusetts law which, unless changed, means the earliest his replacement could be seated is the end of January, 2010, seems to me to make it more and more unlikely that EFCA will happen this year.

That of course does not mean that the battle for EFCA is over. One interesting question is whether other employment related legislation, ENDA or the Arbitration Fairness Act just to pick a couple, which most have felt were bottled up till EFCA was resolved stay there, or perhaps move closer to the front burner.

The big question of course is what happens in the longer term, the 2nd session of this Congress, or after the 2010 elections. I think more in organized labor may be resigning themselves that given how things have developed, they may need to keep their powder dry and see what the 2010 Senate looks like.

Depending on how that turns out, it is not impossible that EFCA proponents may someday count their blessings that this year's more effective than they had anticipated political opposition, the pitched battle over health care, the lack of a hard push by the Obama administration for their cherished goal and even the death of one of the bills' true champions, Senator Kennedy, might result in ultimately obtaining a bill that is closer to their desires than anything they could have obtained now.

Certainly not impossible, but likely?