Labor and Employment Alert November 2008
Benjamin L. Pratt; Anthony T. Bowser
Employee Free Choice Act or “Card Check”
By: Benjamin L. Pratt, Esquire
With the election of Barrack Obama, change will likely come on many fronts, including within the work place arena. Non-union employers must prepare to deal with a number of issues that will most likely be introduced during the early parts of Barrack Obama’s administration. The one issue that has raised many concerns among employers is the “Employee Free Choice Act” (EFCA) or also known as “Card Check”.
EFCA is a proposed federal law that organized labor is pushing that will enable unions to do away with secret ballot elections for workers during organizing campaigns. Under traditional organization, unions have to gather signatures from at least 30% of workers at a facility expressing interest in joining a union. Once they have obtained 30% of the work force signatures, they can petition the Federal National Labor Relations Board to hold a secret ballot election. Workers get to hear from both the union and the employer about the pros and cons of union representation. If the union gets more than 50% of the vote of the federally monitored secret ballot election, the union is certified and collective bargaining must begin.
If the EFCA is passed, unions will be able to short circuit the process. EFCA would give union organizers free reign to pressure workers into signing authorization cards. These authorization cards, would replace or effectively eliminate the private ballot in union elections. A union would be certified if a majority of employees sign the authorization cards, irrespective of whether employees knew what they were signing, or pressured, or promised an election, or have the facts to make an informed decision.
Another aspect of the EFCA is if the authorization cards are signed by the required 50%, the Labor Board is prohibited from ordering the secret ballot election and must certify the union as a collective bargaining representative of the employees. The order of the Labor Board would include a direction that the employer must negotiate a contract with the union. The employer and the union must begin negotiations no later then ten (10) days after the certification order by the Labor Board.
If after ninety (90) days from the date beginning commencement there is no agreement reached by the employer and the union, the Federal Mediation and Consideration Services can be notified and mediation is to begin. If after thirty (30) days from the date of the notice no agreement has been reached even after the result of mediation, the Federal Mediation and Consideration Services shall appoint an arbitration panel. The arbitration panel will determine the terms and conditions of a contract covering the employees. The length of the contract would be two years. This aspect of the law is contrary to the current law which allows both sides to work out a Collective Bargaining Agreement through negotiations between the parties. This binding arbitration would take the rights away from the employees and the employers to negotiate their own Collective Bargaining Agreement.
If EFCA becomes law it would expand penalties for violations of the National Labor Relations Act, including penalties of up to $20,000.00 per offense, back-pay, and increase use of injunctions to remedy alleged violations. If an employer is found by the Labor Board to have discriminated against employees because of union activity during the time of organizing and until the date of the first contract, the employee is to be paid compensatory damages of three times lost pay. If an employer is found to have willfully or repeatedly interfered with union activity or discriminated against employees from engaging in union activity during the time of organizing and until the date of the first contract, the employer may be fined $20,000.00 for each violation. Under current federal law, there are no monetary penalties assessed against an employer that has committed unfair labor practices.
Should the EFCA be passed, workers would lose a vital privacy protection and the ability of voting on secret ballot elections. Paid union organizers would be free to harass workers to sign an authorization card any time and any where. Union organizers would know which workers work “for” them and “against” them. Employers would be powerless to resist unionization once more then half the workers have signed authorization cards. In fact, a union can get certified before the employer even knew what was going on. If the employer refuses to knuckle under to the union demands, the union can force the government mandated arbitration.
What can employers do?
Employers need to begin educating their employees on the damages of being union free. Providing information in regards to union dues, the lack of individual decision making, and the possibility of unions effecting the business. When companies provide information to the employees it will allow them to make a knowledgeable determination as to whether or not to sign a union card. Employers should also educate their employees on union tactics in dealing with card authorization as well as their rights to not be intimidated and harassed by union officials in an attempt to get a union in the business.
Employers must be prepared to address these issues now instead of later, because of the fact that most employers will not know whether or not an organizing campaign is being conducted at their place of work. Organized labor is pouring hundreds of millions of dollars into campaigning for non-union members in anticipation of EFCA being passed. Paying attention to comments made by employees and/or individuals who do not belong at the work place will go a long way in reducing the risks of having organized labor attempt to unionize the work place.
CGA Law Firm can provide assistance to all employers in avoiding union organization. Conducting work place seminars with employees as well as conducting training with supervisors will provide employers with a defense in stopping union organization in the work place. Please call CGA Law Firm for assistance in this area.
Civil Rights Act of 2008
By: Anthony T. Bowser, Esquire
Earlier this year, House and Senate Democrats introduced what could be a landmark piece of employment legislation, named the Civil Rights Act of 2008. The Act could serve as overarching legislation to affect almost all labor and employment laws and regulations.
The Act is currently in congressional subcommittee and there is no clear indication which parts will survive; however, given the recently emboldened Democratic majority, many commentators foresee a large portion passing through subcommittee and being presented for approval by Congress. Some highlights of the Civil Rights Act of 2008 include:
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Elimination of the damage caps currently in place under Title VII and the Americans with Disabilities Act (ADA);
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Adding compensatory and punitive damage availability under the Fair Labor Standards Act (FLSA), including claims brought pursuant to the Equal Pay Act (EPA);
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Limiting the ability of employers, under the Federal Arbitration Act (FAA), to use mandatory arbitration clauses to those instances where the parties agree to arbitration after the dispute arises or as part of a collective bargaining agreement;
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Providing the National Labor Relations Board (NLRB) the opportunity to award backpay to undocumented workers;
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Amending the EPA to severely limit employers’ use of the “bona fide factor other than sex” defense to equal pay claims;
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Conditioning states’ receipts of federal funds on states’ waiver of sovereign immunity against individual claims for monetary damages under the Age Discrimination in Employment Act (ADEA), FLSA, and Uniformed Services Employment and Reemployment Rights Act (USERRA);
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Providing individuals the right to sue federally funded programs under Title VI, Title IX, the Rehabilitation Act, and the ADA; and
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Allowing winning plaintiffs to recover expert fees and expand the definition of prevailing party.
The Civil Rights Act of 2008 could tip the scales heavily in favor of employees bringing claims against their employers. If enacted in its current form, the Act could open a floodgate of litigation by employees seeking large damage claims against their employers and former employers. In the event that the Civil Rights Act of 2008 passes through Congress, all Employers will need to make broad-sweeping changes to their policies in order to ensure compliance and reduce the risk of costly litigation.
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