Employers Want to Know, Who’s Friends With Joe (Biden)?

image_82eIn a prior post, Senator Biden on Work-Life Issues, I wrote on Biden’s stand on work-life issues. What about other matters of interest to Delaware employers? Is his possible ascension to the Vice Presidential role a good or bad thing for Delaware employers?


Friend or Foe?

It should come as no surprise that Biden has taken the “employee”-side on several important pieces of pending employment legislation. Biden supported the Paycheck Fairness Act (S. 766), which is intended to prevent pay discrimination by strengthening penalties should it occur. Biden’s support for the Fair Pay Restoration Act (S. 1843), should also be no surprise. The Fair Pay Restoration Act seeks to address the 2007 U.S. Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber.

In the Ledbetter decision, the Supreme Court held that employees cannot challenge ongoing pay discrimination if the employer’s original discrimination decision occurred more than 180 days before the most recent discrimination (300 days under Delaware’s statute), even when an employee continues to receive paychecks that have been discriminatorily reduced for some time. Under the Fair Pay Restoration Act, an unlawful discriminatory act is committed when a discretionary compensation decision is adopted, when an employee becomes subject to the decision, or when an individual is affected by the application of a decision, including each time compensation is paid. If this Act is passed, employers could be exposed to lawsuits based on decisions made decades ago.

Biden also supported amendments to the Americans with Disabilities Act (ADA) (S. 3406), which has been placed on the Senate’s legislative calendar. The Act promotes changes to the ADA which purport to override several U.S. Supreme Court decisions which apply a strict standard for individuals to meet in order to show that they are disabled or regarded as being disabled under the ADA. The Obama-Biden platform includes goals of appointing judges who respect laws designed to protect people with disabilities, increasing funding for enforcement, and garnering support for the Genetic Information Nondiscrimination Act (S. 358). However, Delaware has long protected against discrimination on the basis of genetic information, so passage of GINA would not mean anything new for Delaware employers.

Finally, Biden is a co-sponsor of the Employee Free Choice Act (S. 1041). If passed, that act would enable workers to form unions when a majority sign union authorization cards, establish mediation and binding arbitration when the employers and workers cannot agree on a first contract, and strengthen penalties for companies the coerce or intimidate workers.

Bank on Biden?

At the same time Biden has taken “pro-employee” stances on employment legislation, he has put his full weight behind, and achieved great success on behalf of, at least two significant segments of Delaware employers: banks and the legal system. He supported the 2005 bankruptcy reform law, which made it harder for consumers to rid themselves of debt, but benefited banks such as MBNA (since acquired by Bank of America).

Also as part of the 2005 law, the U.S. Bankruptcy Court for the District of Delaware got four new judges. Once the new judges were assigned, Delaware regained its top position for bankruptcy filings, with nearly 80% of companies seeking bankruptcy protection filing in Delaware in 2007. Biden has thus endeared himself to Delaware’s legal employers, by ensuring Delaware’s prominence in the bankruptcy field.

Joe – We Hardly Knew Ye

So what will it mean if Biden moves from his leadership position in the U.S. Senate to one in the executive office? As Vice President, Biden would also become the President of the U.S. Senate. As President of the Senate he has the primary duty to cast a vote in the event of a Senate deadlock. However, his constituency has changed from Delaware, to the entire nation.

One would expect Biden to use his vote to support Obama’s platform, not Delaware’s interests. Obama has strongly criticized the bankruptcy reform act, and has taken aim at the same financial services industries Biden has supported. Even if Biden were inclined to support Delaware’s interests, there is a strong convention within the U.S. Senate that the Vice President should not use his position as President of the Senate to influence the passage of legislation or act in a partisan manner, except in the case of breaking tie votes. For these reasons, Biden is unlikely to use his position to advocate for Delaware employers, as in the past.