Commentator sees a more labour-friendly administration
Since President Barack Obama took office in January, American labour law has come under greater scrutiny in both the Senate and the House of Representatives. Although only one significant new piece of labour legislation has actually been passed into law, there have been significant developments south of the border. In an article entitled An Overview of Labor and Employment Law Developments in the First 100 Days of the Obama Administration, labour lawyer Andrew J. Rolfes summarizes what has happened so far.
On January 29, 2009, Obama signed the Lily Ledbetter Fair Pay Act, which overturned a 2007 American Supreme Court decision which said the statute of limitations for a lawsuit concerning pay equity began at the date the pay was agreed upon. With the new law, the statue of limitations resets with each new discriminatory pay cheque. Now, employees who feel they have been discriminated against in their pay have 300 days from the last pay cheque in order to sue.
Even more controversial, the Employee Free Choice Act would fundamentally change the way union negotiations are carried out. The act, passed by the House of Representatives, but still being debated in the Senate, would eliminate secret ballot elections in union certification drives and replace them with a card check procedure. After 120 days of negotiations for a first contract, interest arbitration would be mandatory. The new law would also increase penalties for unfair labour practices during union organizing drives or first contract negotiations.
The Obama administration also intends to make changes at the National Labour Relations Board by nominating two labour side lawyers to fill two of the three vacancies on the board. Rolfes notes the board has been operating without a quorum because of the vacancies, which date back to January 2008. He estimates about 400 decisions made by the two-member board over the last 16 months are being challenged.
Rolfe observes that President Obama has also issued a number of labour-friendly executive orders. Federal agencies may no longer reimburse government contractors for their costs in trying to persuade their employees not to unionize. Also, federal contractors must now post a notice informing employees of their rights under various labour laws. This regulation repealed the previous administration’s requirement that contractors post notices about how to avoid unionization. A third regulation concerns successor rights: federal contracts must include a provision requiring a successor employer to continue to employ the predecessor contractor’s workers. Finally, federal projects costing $25 million or more must use a “labour project agreement.”
As well, the administration intends to improve workplace safety by increasing workplace scrutiny and by hiking penalties for repeated violations of the Occupational Health and Safety Act.
Rolfes observes that, although the first 100 days did not bring much in the way of concrete legislative or regulatory changes, Obama is progressing down “a very different path from his predecessor.”
