Fans and critics alike agree on one thing: President Obama means business. And his business is change. Change is practically smacking American employers in the face. For better or worse, the Obama Administration promises to bring dramatic changes to the American workplace and the courtrooms tasked with enforcing labor and employment laws. Employers must brace themselves for the new administration's "tough love" or prepare for the financial consequences.
Before Obama's ascent to presidency, the labor movement had made significant strides. First, they passed the Americans with Disabilities Act Amendments Act of 2008, which made it easier for individuals to qualify as "disabled" under the ADA. Next, they were rewarded with various provisions in the lengthy Family and Medical Leave Act regulations, including two types of leave for family members of military personnel. Even pre-Obama, employers had drawn the short end of the stick.
While employers were desperately attempting to adjust to this new landscape, the new administration launched its employee-friendly campaign. President Obama's first official act was the passage of the Lilly Ledbetter Fair Pay Act, which makes the statute of limitations period for pay discrimination claims under various anti-discrimination laws run anew with each paycheck. President Obama also extended COBRA funding obligations for employers and provided protection for whistleblowers of economic stimulus funds abuse.
These changes are just the tip of the iceberg. The labor movement has expressed its firm commitment to ensuring the successful passage of numerous Obama-backed employee-friendly proposals. Employers would be wise to prepare for their inevitable passage from debatable "proposals" into binding "law." Here are some of the changes headed your way:
- The controversial Employee Free Choice Act will eliminate secret ballot elections, require bargaining for initial contracts to begin within 10 days of certification, provide mandatory binding arbitration, and increase penalties for employers.
- The Working Families Flexibility Act will require all employers to negotiate shift timing and duration as well as jobsite assignment with their employees.
- The Arbitration Fairness Act will invalidate employment-related pre-dispute arbitration agreements.
- The Paycheck Fairness Act will require employers asserting the reason-other-than-sex affirmative defense under the Equal Pay Act to prove that any pay disparity was caused by a job-related reason.
- The Family Friendly Workplace Act will authorize private employers to provide compensatory time-off in lieu of overtime.
- Various proposals (H.R. 824; H.R. 1723; H.R. 2132; H.R. 2161) will dramatically expand the FMLA.
There's more – here are some proposals that are ripe for "revival" by the Obama Administration:
- The RESPECT Act will make it more difficult to exclude "supervisory" employees from union membership.
- The FOREWARN Act will make the WARN Act applicable to smaller employers and smaller layoffs and increase employers' notice requirements.
- The Employment Non-Discrimination Act will prohibit employment discrimination based on sexual orientation.
- In case some of these proposals fail, the "catch-all" provisions of the anticipated Civil Rights Act will ensure that some, if not all, of the intended goals are met.
These employee-friendly proposals are looming on the horizon. Employers must educate themselves and be proactive to ensure that their workplace is Obama-compliant and poised to survive upcoming changes. Change is coming. The question is – do you feel lucky?
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David Ritter is chair and Gray Mateo is a member of the Labor & Employment Practice Group at Neal, Gerber & Eisenberg LLP. David guides management to make solid business decisions when it comes to their employees. He enjoys representing clients in the areas of employment discrimination, noncompete, trade secret and restrictive covenants, employment torts and all other litigation related to the employment relationship. Gray also represents management in a variety of labor and employment matters, including the defense of claims arising under the FLSA, the NLRA, the FMLA, the ADA, Title VII and their state law counterparts (call Gray for a translation of acronyms). Neal, Gerber & Eisenberg LLP is a Chicago-based law firm of nearly 200 attorneys spanning 22 practice areas. Website: www.ngelaw.com.
