More than 50 Delaware employers attended The Union Revival Effort, a panel hosted by the Employment Law Department at Young Conaway Stargatt & Taylor, LLP last week. The panel, which included Sheldon N. Sandler, William W. Bowser, Scott A. Holt, and Teresa A. Cheek, and which was moderated by Section Chair, Barry Willoughby, discussed the various pro-labor legislation that is likely to see some significant activity, even passage, following the swearing in of President-Elect Obama. Below are the laws that were discussed and a quick summary of each.
Employee Free Choice Act (EFCA)
Would amend the NLRA in three ways: (1) card check instead of secret-ballot election; (2) require compulsory, binding arbitration of initial two-year contract if no agreement in 120 days; and (3) increase penalties for violation of NLRA during organizing and before CBA (now cease and desist) (proposed is 2 times back pay as liquidated damages and civil penalty of $20,000 each willful or repeated violation)
Would amend the definition of “supervisor” to delete “assign” and “responsibility to direct” and require a “majority of time” spent supervising others (currently 10-15%). Would be subject to union organizing in the unit that they manage and would be subject to union rules and discipline for crossing picket lines. Issues with loyalty to management and conflicts of interest.
Lilly Ledbetter Fair Pay Act
Would overrule Ledbetter v. Goodyear Tire & Rubber Co., so the time limit to file a charge of discrimination with the EEOC or state agency would begin to run each time an employee receives a paycheck that manifests discrimination. Under the Court’s ruling in Ledbetter, the period begins to run only once—at the time the discriminatory pay-related decision is made.
Employment Non-Discrimination Act
Adds sexual orientation and gender identity as protected classes. Exemption for employer dress codes, small employers, religious organizations, and military.
Civil Rights Act of 2008
Sweeping changes to numerous statutes, including: lowers the burden of proof to get attorney’s fees; prohibits arbitration agreements in employment contracts; allows recovery of expert’s fees; removes caps from Title VII claims; prohibits denial of back pay to illegal immigrants; and expands equal pay claims under FLSA.
Working Families Flexibility Act
“Union-of-one” legislation that would requires good-faith negotiations with any employee who wants to change days worked, hours of work, or location of work. Five-step procedure for meetings and documentation of negotiations. If not granted, employer must provide reasons in writing and specify the costs in agreeing to change; effect of change on customer demand; and the overall financial resources of the company. Employee may have a representative of his choice at the negotiation meetings.
Would amend the WARN Act to (1) lower coverage to employers with 50 or more employees (from 100 or more); (2) require 90 days’ advance notice of mass layoff or closing (instead of 60); and (3) double the amount of back pay owed if required notice is not given.
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