December 3, 2008

Employers stand at the threshold of the most dramatic change in U.S. labor law in over 60 years. President-Elect Obama has promised to sign the “Employee Free Choice Act” (EFCA). A majority in both houses of Congress is committed to passage of the EFCA. The EFCA may already be filibuster-proof since Senator Joseph Lieberman (I) and Senator Arlen Specter (R) previously voted to stop a filibuster of the EFCA. Employers need to be ready for the EFCA to become a reality.

How will the EFCA affect employers desiring to stay union-free? The EFCA seeks to increase union membership and power by:

• Replacing secret ballot elections with a “card check” to establish union representation;
• Having wages and other terms of a first union contract dictated by an “interest arbitrator” if the company fails to quickly reach an agreement with the union;
• Requiring employers to reinstate employees terminated during a union organizing drive pending a hearing on whether the law was violated;
• Replacing “make whole” remedies during union organizing with punishing liquidated damages and fines against the employer.

For a detailed description of how the EFCA would change current law on employee choice about union representation, please click here. For an analysis of how employers can best prepare for the EFCA, please click here. For a description of how recent union organizing techniques have led to the EFCA, please click here.