A New Day for Employers

Human Resources departments of Delaware employers will soon face a new and more challenging day once the initial excitement dies down and the new administrations in Washington and Dover turn to official business. 

The State of Unions

In Washington, one of the first items on the agenda will surely be the Employee Free Choice Act, which is designed to revitalize the union movement. It will substitute card checks for secret ballot elections, establish strict bargaining deadlines, and introduce interest arbitration to impose a first contract if the parties are unable to reach agreement in 90 days. Interest arbitration is a concept already familiar to Delaware public employers.

Of note, Delaware public employers have won every interest arbitration case decided to date, but the concept itself changes the bargaining landscape. It requires employers to, in essence, bid against each other by proving they are keeping pace with comparable employers. The Act would also increase the power of the NLRB to obtain injunctive relief and impose increased back-pay damages for unfair labor practices committed by employers during bargaining campaigns.

Another law designed to assist unions is the RESPECT Act, which would overturn an NLRB decision (Kentucky River) that labeled many employees as supervisors and removed them from the coverage of the National Labor Relations Act. Passage of that Act would add many exempt supervisors to the rank and file.

On the Agenda

President-Elect Obama has also supported a proposed law that would ban the permanent replacement of strikers.  And he will be appointing at least 3 new members of the NLRB, and it is virtually guaranteed that the majority will be sympathetic to unions. Passage of this cornucopia of union-favoring legislation would put a heavy thumb on the union side of the organizing scale.

Another change that seems certain is the reversal of the Supreme Court’s Ledbetter decision. The plaintiff in that case, Lilly Ledbetter, was featured in an Obama ad, so he certainly owes her. That case held that the time for filing a charge of discrimination based on unequal pay begins to run from the time the initial unequal wage was established. The new law would permit a charge to be filed every time a new paycheck is received.

President-Elect Obama also has expressed support for expanding FMLA coverage from companies with 50 or more employees to those with 25 or more employees, and to require at least 7 days of mandatory paid sick-leave per year.

Delaware’s Political Landscape

In Delaware, it is harder to predict what might come to pass. Governor-Elect Markell, though a Democrat, is a former businessman and will, likely, approach game-changing labor and employment legislation cautiously. But the General Assembly, with many union members and advocates, could pass several bills that have been proposed previously but have never seen the light of day.  Among these are the expansion of the state discrimination statute to include sexual orientation, and the elimination of the employment at-will doctrine. Depending on what happens in Washington, there might also be efforts to add a Delaware FMLA law and a Delaware analogue to the WARN Act.

Fasten your seat belts, it is going to be a bumpy ride.