With the historic victory by Barack Obama in last week’s Presidential Election, there is sure to be an impact on the labor and employment law landscape.
Obama has made labor and employment issues important parts of his campaign platform, and with his party controlling both Congress and the White House he should have every opportunity to implement at least some of his plan. Following is a look at just a few of the major labor and employment issues we can expect to see addressed in the coming years.
According to the Obama-Biden campaign website, an Obama Administration will work to expand employee rights under various anti-discrimination statutes. According to the website, “Obama and Biden will work to overturn the Supreme Court’s recent ruling that curtails women’s and racial minorities’ ability to challenge pay discrimination.” Although the site does not mention any case by name, it is likely that Obama is referring to the Court’s May, 2007, decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
In Ledbetter, the Court ruled 5 to 4 that an equal pay claim must be brought within 180 days (the applicable statute of limitations period) of the events that initially caused the discriminatory pay. As a result, Ledbetter, who had worked for Goodyear since 1979, was unable to pursue her claim based on the inequality of raises given throughout her employment. Ledbetter had argued unsuccessfully that each paycheck she received was evidence of a continuing violation of the Equal Pay Act.
According to Obama, then, his administration will work to overturn this decision and, in turn, greatly expand the ability of an employee to reach back to violations that occurred years and even decades ago.
Additionally, the Obama campaign site says, “[Obama and Biden] 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.”
While current federal law already requires that women be paid equal pay for equal work, the proposed Employment Non-Discrimination Act would expand the scope of the current collection of federal anti-discrimination laws to add additional protections. While some state anti-discrimination laws protect employees from discrimination on the basis of sexual orientation or gender expression, no federal law includes those protected classes.
Although the campaign website does not seem to include any reference to it, Obama was a co-sponsor of, and has promised that as President he would sign, the ironically named Employee Free Choice Act. I have previously written about this proposed law that would – despite the clever name – eliminate employees’ free choice and the right to a secret ballot election in some union organizing campaigns.
The law, which would make it easier for unions to organize various workplaces, would be huge win for labor unions, whose membership has been declining for decades. It’s no wonder the AFL-CIO spent so much money on their Anti-McCain effort. Despite the fact that there is little information on the official Obama-Biden campaign site, the AFL-CIO also has put together a summary of Obama’s position with respect to the bill. It appears that Obama either does not understand the current law or is intentionally misleading in an attempt to build support the bill, but that is probably another topic for another day.
In short, the passage of this new law would make it much easier for unions to organize, which would mean many new unionized workplaces. Sources tell me that there may not be enough political support to allow the passage of this bill, but it appears to remain at least a goal of the new administration.
Clearly, there will be other changes in a new administration. These few examples show pretty clearly, though, that President-elect Obama intends to expand employee rights both through new legislation and through the broader and more vigilant enforcement of current law.
EDIT: View Part 2 of this story