Labor and Employment Law – An Overview of “Interesting Times”

by / Tuesday, 27 October 2009 / Published in Labor and Employment

Although the articles written in this space over the past five years regarding employment law have tended to review distinct developments in the law, these are very “interesting times” and merit a moment to reflect how the legal and political events of the last six months augur a new period in management/employee relations.  When developments and trends in labor and employment law over the last six months are considered, it is quite possible that we are witnessing a change of direction that ought to be reviewed by employers.  These changes will require significant review of existing policies, and, most importantly, usher in a period in which employers of all sizes may be well advised to exercise greater caution than in years past.

Looking broadly at the field, one can point to the great depression as a watershed. It was then that the National Labor Relations Board (NLRB) was created giving the union movement explicit legal protections at a federal level, followed by the Fair Labor Standards Act (FLSA) providing minimum wage protection.  Another era began in 1964 with the passage of anti-discrimination in employment legislation (Title VII ), followed shortly by protections against age discrimination in 1967.  This era was followed by a contraction of the union movement after the termination of over 11,000 air traffic controllers in 1981.  Although laws such as the Family Medical Leave Act (FMLA) were passed after 1981, the pendulum began to swing in favor of management after President Reagan’s break of the air traffic controllers’ strike.  In the following decade, taking this cue, many private sector strikes were met with equally staunch opposition causing the union movement shrink.

Now, by all appearances, this balance may be set to swing the other way.  Prior to the last election, employee rights were expanded in amendments to the Americans with Disabilities Act (ADA), which explicitly broadened the definition of what constitutes a disability.  What is particularly interesting is that this law was passed prior to the new administration and Congress taking office.  The word from Washington insiders is that the business community thought it likely that the next Congress would pass legislation on this topic and that the best possible result would be afforded by passage of amendment prior to January 2009.

It would appear that the prediction of the business community was correct.  President Obama has already signed legislation which expands the rights of employees seeking to challenge unequal pay and the reverses the Supreme Court’s Ledbetter decision.  What follows may be even more interesting.  Despite focusing primarily on the financial situation, another early act of the President was the formation of the White House Task Force on Middle Class Working Families, which among its explicitly stated objectives are improving work and family balance and restoring labor standards, including workplace safety, and helping to protect middle-class and working family incomes.

It is likely that the new administration will continue to place a high priority on implementing these objectives and promoting that agenda. Foremost among that agenda will be actions intended to strengthen the union movement.  The most well known component of this agenda is the Employee Freedom of Choice ( EFC ) legislation that is moving in various forms through Congress, and if passed in one form or another will make it easier for unions to organize workforces.  The union movement hopes to reverse decades of decline with the help of this legislation and to expand beyond the factory and municipal membership that form its core.

However, aside from the EFC , there is much that this new administration can do to reverse the swing of the pendulum from favoring the employer to favoring the employee.  Possible changes could occur with NLRB policies and decisions that currently favor management, with some even affecting non-union employers.  What may also change is a readiness to more strictly and aggressively enforce laws and executive orders that are already in existence.  As President Reagan demonstrated in 1981, changing the tone at the White House can have wide-ranging affects on the landscape of employer/employee relations.  The next few months and years promise to be interesting.

For any questions about human resource and employment law matters, please contact Marc Tarlow or Mike Rowan at 717-848-5134.

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