The historic Democratic Party election sweep is apt to have a major effect on America’s employment and labor policy. The policies promulgated by the Obama White House will receive a favorable reception from both houses of Congress. Here are some of those policies.
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Labor union recognition without unit elections. For the past 60 years, labor union representation was recognized only after both a union petition and a subsequent election. The theory was that the union could get petition signatures unilaterally but the employer’s voice would be heard through the preelection campaign.
The pending Employee Free Choice Act would change that and require union recognition on the basis of petitions alone, without any opportunity for campaigns or elections. The Obama/Biden ticket publicly supported that change, and the Democratic Congress will almost certainly pass it as an early payback for strong union support.
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Pay-or-play medical coverage. Medical insurance coverage provided a stark difference between Senator John McCain and Senator Barack Obama. McCain proffered an idea that scared everybody: making health insurance premiums taxable and offering a tax credit to offset that expense. Nobody was able to do that math. President-Elect Obama favors employment as the backbone of the health coverage system, requiring employers to either provide health coverage or pay into a national health care system. Sixteen years after Hillary Clinton first promoted it, universal health care is getting closer to reality. Any employer that doesn’t currently offer health care coverage better start creating a good health care plan or accept the alternative of participation in the federal plan.
Federal sexual orientation discrimination laws. Though same-sex marriage bans passed all over the country and neither presidential ticket supported same-sex marriage, all four national candidates gave strong lip service against sexual orientation discrimination. Representative Barney Frank’s bill, called the Employment Non-Discrimination Act (ENDA) which would add sexual orientation discrimination to the list of federally protected classes, is poised for passage. The only question now is whether the strengthened Democratic congressional majorities will allow Frank to return “transgender discrimination” to the text of the bill.
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Increasing the federal minimum wage. With the public support of the new administration and under the leadership of House Speaker Nancy Pelosi (whose home district has a local minimum wage of $9.14), an increase in the federal minimum wage is a certainty. More important than the actual dollar increase, the new wage floor will be indexed to inflation so that it will rise automatically without the need for repeated congressional authorization.
Increased family medical protections. Obama’s campaign platform urged bold new family and medical leave protections, and he will have congressional allies to enact them. Expect the “covered employer” definition to drop from 50 to 25 employees and the permitted leave purposes to expand to cover elder parents, children’s academic activities, and domestic violence victims. New laws and regulations will prohibit “caregiver discrimination,” and Obama — who describes himself as a former civil rights lawyer — will beef up employment discrimination enforcement across the board.
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Don’t get too worried yet
I add two doses of reality to these predictions. First, while greater job flexibility and the abandonment of the eight-hour day/40-hour week are logical components to Obama’s “family-friendly” employment policy, the union movement is about collective power and is traditionally uninterested in individual flexibility. Unions are key players in Democratic coalition politics, which might derail “family-flexible work arrangements.”
Finally, with our nation worried about financial collapse, employment policy may take a back seat to economic reality. Businesses might not have the cash to support universal health care, and the federal government might not have the money to increase enforcement efforts by the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor (DOL). It will be interesting to see how Washington’s new ideals will mesh with its old realities.
More than anything else, it was heartening to see the leadership of both campaigns urging national unity at the end of the race. Fifty-five million Americans voted against the winning candidate, but our nation awoke the next day with the campaign behind it, ready to embrace the first President of color in our history. That seems like a critical step toward the global leadership that our ideals of freedom, equality, and democracy deserve.
Mark I Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at (415) 541-0200 .