In the pipeline | Workplace laws eyed for significant changes
Nearly one month after a historic election, the nation is still waiting to see what changes will take place when President-elect Barack Obama and this session's lawmakers take their seats in January. But even before a new crop of bills enters Congress, employers and lobbyists in Maine are gearing up for what are expected to be major changes to several labor and employment laws, changes that have sat dormant in years past but could be pushed to the forefront as the Oval Office goes blue and the U.S. Senate edges closer to a Democratic supermajority.
One such change will take effect on Jan. 1, 2009. President Bush signed the Americans with Disabilities Act Amendments Act of 2008 on Sept. 25, which overturned several U.S. Supreme Court decisions that had limited the scope of the ADA. The new law broadens the definition of a disability and who is covered under the act. These changes to the federal law will actually put it more in line with the Maine Human Rights Act, says Peter Gore, senior governmental affairs specialist at the Maine State Chamber of Commerce in Augusta. "I don't think most Maine employers will find [the federal changes] too overly burdensome," he says.
Other proposals in the works, however, could impact Maine businesses by increasing costs and risk, according to state lobbyists and lawyers. But others say the bottom line shouldn't be the only factor when considering labor law changes. "I don't think that just because something might increase cost it should be considered negative," says Patricia Ryan, executive director of the Maine Human Rights Commission. Here's a roundup of a few noteworthy federal bills, and what they could mean for Maine businesses if they pass:
The Employee Free Choice Act (EFCA)
As written, this bill would change the procedures for establishing a union by eliminating the secret ballot election process. Under current law, unions gather signatures from employees interesting in unionizing, and a secret ballot election is held if 30% or more express interest. This bill instead would allow the National Labor Relations Board to establish a union if a 50%-plus-one majority of employees sign cards in support of unionizing.
The proposal is regarded as the biggest change to the National Labor Relations Act since it was enacted in 1935. It’s touted by labor organizations as a way to streamline the election process and protect employees’ rights to bargain for benefits and wages, but others say eliminating the secret ballot will create tension between employees by making the vote public knowledge. “Even for people on the pro-union side, it strikes people as being just a little extreme,” says Chris Hall, senior vice president of government relations for the Portland Regional Chamber of Commerce.
The bill would essentially allow a union to establish without an employer’s knowledge, and it also includes a provision that allows an outside arbitrator to set the terms of the first contract if employers and their workers can’t reach an agreement within 90 days of unionizing, says Jim Erwin, head of the employment group at Portland law firm Pierce Atwood. “It takes negotiating out of the employer’s hands,” he says.
The House of Representatives passed this bill on March 1, 2007, but it stalled in the Senate without a majority of 60 to end the filibuster. But with 58 Democrats now in the Senate, policy analysts expect some version of the bill to pass. “I’d be surprised if it took more than a year to pass,” says Erwin. If it does, an upswing in labor activity is expected here in Maine, especially in the health care and hospitality industries, he says.
Changes to the Family and Medical Leave Act
A handful of proposals has been languishing in Congress that would expand coverage of the Family and Medical Leave Act, which could mean increased costs and risks for employers. One bill would expand the FMLA to apply to more people, such as domestic partners, and for more scenarios, such as volunteering or domestic abuse. Another bill would lower the number of employees a company must have to be covered by FMLA from 50 to 15. One bill, called the Healthy Families Act, would require employers with 15 or more employees to provide a certain amount of paid sick time to full- and part-time employees.
If these changes go through, Maine business owners could lose thousands or hundreds of thousands of dollars, says Gore. Smaller companies that offer other benefits, such as paid health insurance, instead of paid sick time, will be forced to change their benefits to comply, he says. And the increased costs could dampen business expansion and job growth, says Erwin. “The ultimate effect to all of this is that companies would have to employ fewer people, because it costs more to employ a person,” he says.
Changes to the Civil Rights Act and other discrimination acts
A number of bills waiting in the wings would make changes to various anti-discrimination laws that would increase damages in discrimination cases. One bill, the Lilly Ledbetter Fair Pay Act, would eliminate the statute of limitations on discrimination claims, allowing those who could prove they had been receiving lower pay due to discrimination to recoup those funds no matter how long ago the discrimination occurred. Another bill would eliminate the $300,000 cap on punitive and compensatory damages for discrimination cases under Title VII of the Civil Rights Act of 1964, which prohibits discrimination by employers. Another bill, the Paycheck Fairness Act, attempts to shrink the pay gap between men and women, and would make it more difficult for businesses to defend against a gender discrimination claim.
All of these changes would carry increased risks for business managers, who might be “more cautious to discharge someone for a good reason” for fear of inciting costly litigation, says Erwin. “As the risk of claims goes up, the cost of employing people goes up, and they are less willing to take that risk,” he says.
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