How will the election results affect the nation’s labor and employment laws?  Here’s my take . . .

Who Won What?

Democrats now have the presidency and solid majorities in both the House and Senate.  But it appears that Democrats failed to win the magic number of 60 Senate seats, which would have allowed them to avoid potential bill-killing filibusters by Republicans.

Both CNN and MSNBC project 56 Democrats and 40 Republicans in the Senate with 4 races — Alaska, Georgia, Minnesota, and Oregon — still too close to call.

The 4 Toss-ups

In Alaska, incumbent Republican Ted Stevens is locked in a tight race with Democrat Mark Begich.  Democrats were hoping that Stevens’ recent conviction on federal corruption charges would tilt the race in their favor.  The latest results show Stevens up 48% to 47% with 99% of the precincts reporting.

In Georgia, incumbent Republican Saxy Chambliss is up 50% to 47% over Democrat Jim Martin, with 99% of the results in.  If Chambliss doesn’t wind up with at least 50%, he and Martin will face a runoff election in December.

In Minnesota, incumbent Republican Norm Coleman “won” by a mere 570 votes over comedian-turned-Democrat Al Franken.  The candidates now face a mandatory recount that could stretch into December.

In Oregon, incumbent Republican Gordon Smith is up 48% to 46% over Jeff Merkley, with 76% of the votes in.

So, if all the above results hold, the tally would be 56 Democrats to 44 Republicans, 4 short of the magic number.

Wild Cards

Even if all 4 of the toss-ups go to the Democrats, there’s still the question of what will happen with Joe Lieberman, the independent Senator who caucused with the Democrats last term but more recently was an avid McCain supporter.  If Lieberman stays with the Democrats and the Democrats win all 4 of the toss-ups, the tally would be 60-40.  If he switches to the Republicans, the tally would shift back to Filibusterland at 59-41.

One other wild card:  Last night’s Obama win means that both he and Biden will lose their Senate seats.  However, it’s virtually certain that the Democratic governors of both states will appoint Democrats to fill their vacancies.

So, What Does All This Mean?

Because it appears that Democrats failed to win complete control of the Senate, employers concerned about the Employee Free Choice Act (EFCA) and other pro-union legislation are now breathing a bit more easily.  It’s less likely that EFCA will pass in its current form but there’s still cause for concern.

EFCA

EFCA as currently proposed would (1) wipe out 70+ years of labor law, (2) ban NLRB-supervised secret-ballot elections, (3) substitute a process that would require only that unions get a majority of employees to sign authorization cards and (4) impose mandatory arbitration if the parties are unable to reach an agreement within 120 days.  According to projections from the Service Employees International Union (SEIU), EFCA would result in a ten-fold increase in its organizing — from its current 100,000 employees a year to one million.

In short, EFCA was designed to make union organizing and contract negotiation easier.  While it may be less likely to pass as proposed, unions undoubtedly will push for significant changes.

The Union Agenda

In addition to EFCA, unions are likely push for any and all of the following:

• RESPECT?  After EFCA, the Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act is likely to be the unions’ #2 priority.  It would re-classify thousands of supervisory construction workers, nurses, professionals and others who are not currently protected by federal labor laws.
• End of Right-to-Work?  Unions are also seeking changes to federal labor law that would repeal state right-to-work laws that prohibit unions from forcing employees to join the union or be fired.
• Equal Pay Act Expansion?  The unions also back legislation that would make it easier to file Equal Pay Act claims by increasing the statute of limitations, among other things.
• Paid Sick Leave?  7 days of paid FMLA sick leave is likely to be on the agenda as well.
• Civil Rights Act of 2009?  Last term, a bill entitled the Civil Rights Act of 2008 was introduced.  In a nutshell, it would have reversed decades of Supreme Court decisions that were perceived by some to be too pro-employer.  Similar legislation is likely to be proposed in the next term.

Conclusion

Given the enormous economic problems the country is facing, President Obama is likely to have bigger things on his plate than labor and employment issues.  However, unions are likely to continue to push for any and all of the above.  Expect to see lots of negotiation and trade-offs.

Stay tuned to see how this develops.

This entry was posted on Wednesday, November 5th, 2008 at 10:04 am and is filed under Employment Law News, Politics, Trends. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.