The election of Scott  Brown to fill the late Ted Kennedy’s vacated seat has sent the employment law universe into a tizzy.

What does it all mean?

In a nutshell, Democrats no longer have the 60-seat filibuster-proof super-majority in the Senate. That means getting Democrat-backed (but Republican-despised) legislation passed just got a whole lot harder.

The impact of Brown’s election on health care reform has been talked to death. But what about the rest of the Administration’s legislative agenda?

Prior to Brown’s victory, the Employee Free Choice Act (EFCA) and other union-backed measures seemed pretty likely to pass in some form. Some projected that EFCA’s “quickie” election process and mandatory arbitration provision would become law prior to the 2010 mid-term elections.

Now, Democrats are left wondering whether they have the juice to sustain attacks by pro-business groups in a time of 10% unemployment. Other Administration-backed measures like immigration reform, paid sick leave and expanded discrimination laws suddenly look far less likely to ever come to fruition.

Those are just my initial thoughts. Obviously, the dust is still settling. Stay tuned to see how this all plays out.

This week, I’m in fabulous Orlando, Florida, attending the American Staffing Association’s annual Staffing World Convention and Expo.

A huge focus of ASA’s work is staying on top of all the developments in the wonderful world of workplace law. Here’s the latest on where some key things stand:

General Forecast

The focus on the legislative front right now is pretty simple: health care, health care, health care. Virtually everything else is on the back burner.

It’s anticipated that the health care debate will take up most of the rest of this congressional session. That means that many of the initiatives favored by the Administration may be pushed off to 2010. With 2010 being an election year, the next twelve months will undoubtedly be action-packed. Whether the Administration’s initiatives make it through will depend in large part on how much political capital the President and his fellow Democrats have remaining after the health care issue is settled.

Health Care

Five proposals are now floating around — three in the House and two in the Senate. The one generating the most buzz is the Senate Finance Committee bill.

As it stands, that bill contains an “employer mandate” that would require employers who have more than 50 full-time employees and don’t provide health insurance to pay a fee for each full-time employee. The amount of the fee and what exactly constitutes a “full-time employee” (currently defined in the bill as all employees who work more than 30 hours per week on average) will undoubtedly be the subject of much debate in coming weeks.

Most experts agree that there is a better than 50% chance that some form of health care legislation will eventually be passed. However, almost no one agrees on when it will pass and what exactly it will contain.

EFCA

The Employee Free Choice Act (EFCA) is still very much alive. It’s just on hold while everyone focuses on health care.

EFCA’s backers appear to have given up on the “card check” provision, but it still contains the “quickie” election and mandatory fast-track arbitration provisions that make the business community very nervous.

There’s some concern that Democrats could try to move on a compromise bill some time before the close of the session. As such, the U.S. Chamber and other business groups — all of which remain staunchly opposed to any form of compromise — are warning against apathy and overconfidence.

Immigration Reform

The President has publicly stated that he will introduce immigration reform legislation this year. Again, given the health care focus, that may not be achievable. Most experts agree that even if immigration legislation is introduced, it’s a long shot that there will be any significant action on it this year.

Paid Sick Leave

Paid sick leave is basically in the same spot as immigration reform.

NLRB

Another area that makes the employer community nervous is the power of the National Labor Relations Board (NLRB) to reverse key Bush-era decisions. Click here for everything you could possibly want to know on that subject.

Stay tuned to see how this all plays out . . .

The New York Times is reporting that the Employee Free Choice Act’s controversial “card check” provision appears to be dead. However, that doesn’t mean that EFCA itself is gone.

EFCA’s backers are trying to muster the super-majority 60 votes in the Senate required to block a filibuster. Dropping card check — which many key Democrats felt was undemocratic — just might take them over the top.

The repackaged EFCA still would include several provisions likely to dramatically shift power to unions:

• “quickie” elections (5-10 days versus the average 40 days currently);
• union access to company property;
• prohibiting employers from requiring employees to attend informational meetings about the union; and
• binding fast-track arbitration.

Union groups no doubt will support the new EFCA. Business advocates remain staunchly opposed to any such “compromise.” They argue that “quickie” elections give unions far too much of a head start and deprive employees of their opportunity to hear both sides of the story. They also contend that allowing union access and prohibiting employers from holding meetings would be unnecessary and disruptive. As for fast-track binding arbitration, business groups believe it will result in unworkable, unrealistic and uncompetitive contracts.

Stay tuned.

Last week here on the Blawg, we discussed a Washington Post article that called the Employee Free Choice Act (EFCA) “flawed” and ”imperfect” but criticized business groups for refusing to engage in compromise talks.

Business’ Response

Click here for a response to the Post article from the Coalition for a Democratic Workforce (CDW).

CDW points to recent data showing that unions win more than two thirds of elections under the existing process and says: “Only in Washington can special interests winning two-thirds of the time see a crisis requiring a legislative fix that would place unreasonable burdens on small businesses and dismantle worker privacy rights.”

CDW also asserts that The Post ”disregarded the impact” that various compromises, including “quickie” elections, would have on small businesses. According to CDW: ”Most small-business owners do not have legal or human resources departments to assist them in following complicated NLRB election procedures. They are focused on running their businesses. Professional union organizers are experts at the process and at manipulating it.”

Compromise Imminent?

According to the Congressional Quarterly, it appears that support among Democrats for the various EFCA compromises is anything but solid.

Describing Senator Tom Harkin’s (D-IA) efforts thus far, Mark Pryor (D-AR) said: “Senator Harkin may be further along the path than I realize, but purely from my perspective I wouldn’t say we’re even in a ‘working group’ stage yet.” Pryor predicted the earliest EFCA could be addressed would be “the next work period, but I don’t know if that’s realistic.”

Other prominent democrats, including Blanche Lincoln (D-AR) and Mary Landrieu (D-LA) say they haven’t been included in the discussions. “I don’t support the card check bill as it is written,” Lincoln said. “If it’s another bill, if there’s something else they’re trying to accomplish, if somebody wants to bring labor and management together to come up with a compromise that they can both agree on, I’m certainly willing to look at that. But I don’t think that’s what’s happening.”

Stay tuned.

Click here for an The Washington Post‘s take on the Employee Free Choice Act (EFCA).

The Post calls EFCA “imperfect” and a “flawed solution” to a “real problem: unfair barriers in the way of union organizing.” The Post argues that the current election process is unfairly pro-employer but ignores recent data showing that unions won more than two-thirds of elections last year.

The Post criticizes unions for their “reluctance to consider alternatives that could level the playing field between labor and management.” But it reserves its harshest words for the Coalition for a Democratic Workforce (CDW) — a business coalition consisting of the U.S. Chamber, National Association of Manufacturers and others — for “deny[ing] that there is a problem” and refusing to engage in compromise talks.

The Post’s proposed solution? Without citing any real evidence or analysis, it calls the “quickie elections” compromise being floated by some Democrats an “attractive solution.” The CDW is staunchly opposed to that proposal and any other form of compromise.

Stay tuned.

According to the National Labor Relations Board, unions won 66.8% of representation elections held in 2008. That number represents a more than 10% improvement over 2007 and is the highest win rate since such data started being tracked in 1984.

According to the Bureau of Labor Statistics’ latest data, the number of union members in the U.S. increased by 428,000 in 2008 to 16.1 million, or 12.4% of employed workers.

Business advocates have been quick to jump on the above data as evidence that there is no compelling need for the Employee Free Choice Act (EFCA).

Today’s New York Times has an article detailing the latest political wranglings around the Employee Free Choice Act (EFCA).

As discussed yesterday, Democrats appear to be giving up on the “card-check” piece of EFCA and are searching for potential compromises. But business advocates are staunchly opposed to EFCA’s other primary provisions: “quickie” elections and mandatory arbitration.

As for quicker elections, Randel Johnson of the U.S. Chamber of Commerce says: “Employers need a decent amount of time to tell their side of the story. That’s probably about 45 days.” As for mandatory arbitration, business advocates question the wisdom of having government arbitrators mandate a company’s wages and working conditions.

“America deserves better than some senators trying to cobble together a deal to please the unions in a rush to get something done,” said Johnson.

Stay tuned for more.

Reports are circulating that the Employee Free Choice Act’s most dreaded aspect – “card-check” — could be dead.

“Compromises are going to be made,” Senator Tom Harkin (D-IA), EFCA’s main sponsor, said in an interview yesterday. “It probably won’t be card-check, because too many people are opposed to it now.”

Harkin reportedly is in talks with Democrats who oppose card-check to discuss potential compromises. It won’t be easy, though.

Union groups have repeatedly expressed a refusal to compromise. “Card-check is not negotiable for workers in the private sector,” said Jill Cashen of the United Food and Commercial Workers Union.

Business groups also staunchly oppose any compromise. “There are some other very toxic provisions in that bill, such as binding arbitration,” said Glenn Spencer of the U.S. Chamber of Commerce.

Stay tuned.

Arlen Specter (R-PA) has switched from Republican to Democrat. Here’s his statement.

Specter’s switch gives the Democrats a 60-seat “supermajority” in the Senate (assuming Al Franken’s “win” of the Minnesota seat holds). That means that Democrats would be able to block Republican filibusters on bills such as the Employee Free Choice Act (EFCA).

However, Specter has repeated his public stance that he still will not vote to block an EFCA filibuster. The exact quote: “my position on Employees [sic] Free Choice (Card Check) will not change.”

Stay tuned.

It’s looking less and less likely that the Employee Free Choice Act (EFCA) will pass in its current form.

Democratic Senator Blanche Lincoln (D-AR) announced that she can’t support EFCA. “I am stating today that I cannot support [the] Employee Free Choice Act in its current form and I can’t support efforts to bring it to Senate consideration in its current form,” she said.

Combined with Arlen Specter’s recent switcheroo — detailed here – Lincoln’s position will make it even harder for Democrats to get the 60 votes needed to block a bill-killing Republican filibuster.

Stay tuned.