Obama and the Future of Labor and Employment Law
November 13th, 2008 | Paul Secunda
With the historic election of Barack Obama as the 44th President of the United States and the substantial gains for Democrats in the House and Senate, there is almost certainty that there will be significant labor and employment law reform in the near future.
Not being a shrinking violet by any means, I would like to add my two cents about what such reform should be about. Although I previously posted a similar analysis of what the next President should do on the Marquette Law School Faculty Blog about three weeks ago, I want to sharpen these past comments and add some new ideas.
President-elect Obama should first focus on the following four broad areas in the labor and employment law context: labor rights, workplace anti-discrimination and civil rights, employee benefit rights, and public employee rights.
Labor Rights: The percentage of American workers covered by union contracts is now below 8%, as opposed to 16% as recently as 1985. Without unions to fight for them, workers fall behind in wages, benefits, and standard of living. Unionized workers earn more and are more likely to have pensions and health insurance than non-unionized workers. Workers should have the freedom to choose whether to join a union without harassment or intimidation.
President-elect Obama should therefore sign the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize and secure initial agreements with their employers. Obama should also act to restore collective bargaining rights to nurses and other workers excluded as “supervisors,” and to ban employers’ practices of permanently replacing striking workers. He should also sign into law the Public Safety Employer-Employee Cooperation Act to assure public safety workers who put their lives on the line every day their right to bargain collectively. Finally, President-elect Obama should work to appoint members of the National Labor Relations Board who will work to protect employee choice by outlawing employer captive audience meetings during election campaigns and overruling Dana Corp. and putting back in place the traditional voluntary recognition bar.
Workplace Anti-Discrimination and Civil Rights: President-elect Obama should work for legislation requiring employers to provide at least seven days of paid sick leave to employees and expanding the Family and Medical Leave Act (FMLA) to cover more workers (to employers with 20 or more employees). He should also protect the wages of working women by signing into law a legislative nullification of the Ledbetter decision, which will promote paycheck equity and help close the pay gap that leaves working women earning only 77 cents for every dollar earned by men.
President-elect Obama should also sign legislation to extend § 1983 civil rights claims to actions against federal officials so that federal employees can vindicate their constitutional rights to speech and privacy. Finally, he should expand Title VII and fully include all LGBT individuals (yes, such legislation must include transgendered individuals) under its protections.
Employee Benefits Rights: With more than 47 million Americans-–including 9 million children–without health insurance, President-elect Obama needs to sign a universal health care plan into law before the end of his first term. This plan structure should include guaranteed eligibility, comprehensive benefits, and affordable premiums and co-payments, with subsidies for families that cannot afford the premiums. Additionally, ERISA should be amended to provide for less preemption of state health care finance laws so that states can experiment in providing all of their citizens adequate health care. Obama should also work to amend ERISA to provide monetary, make-whole remedies to employees who suffer from mismanagement of their employee benefits and work for the legislative nullification of the Russell/Mertens line of Section 502(a)(3) equity cases. In this regard, I have proposed the ERISA Civil Rights Act of 2009, which will act much in the way the Civil Rights Act of 1991 amended Title VII. Among the changes, the right to compensatory and punitive damages in appropriate cases with caps, the right to a jury trial when such damage is sought, and right to make-whole, equitable relief under current Section 502(a)(3).
Public Employee Rights: First and foremost, President-elect Obama should select Justices who will overule the Garcetti case and return to Pickering and the mandate that employer efficiency interests and employee constitutional rights to speech, expression, association, and privacy be balanced under the First and Fourteenth Amendments. As to federal employees, Congress should amend the Civil Service Reform Act of 1978 and provide that federal employees are free to bring their First Amendment claims directly to federal court under a re-structured Section 1983, without having to go through the current inadequate, administrative remedies now available. (This would entail a newly-constituted Supreme Court overruling the Bivens case of Bush v. Lucas). Such legislation would also provide whistleblowers under Sarbanes-Oxley and in other areas the protection they really need to go out on the limb and report danagerous and fraudulent conditions in the workplace.
Believe it or not, the above suggestions would merely start the process of affording American employees the same basic workplace rights as their international counterparts. Note that I have not even broached what must be an essential component of any comprehensive labor and employment law reform in this country – the institution of just cause workplace protection as the default rule for American employees.
All of this will help return the United States to its international stature and allow it again to not only be a beacon of democracy and freedom, but also the envy of the world insofar as how it treats its working men and women.
Cross-posted from the Workplace Prof Blog.
About the Author: Paul Secunda joined the Marquette University Law School as an associate professor of law in the summer of 2008. He teaches employment discrimination, employee benefits, labor law, employment law, civil procedure, and seminars in special education law, global issues in employee benefits, and public employment law. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He is also the author, along with Rick Bales and Jeff Hirsch, of the treatise, Understanding Employment Law, along with Sam Estreicher and Rosalind Connor, of the case book, Global Issues in Employee Benefits Law, and of the Teacher’s Manual to the 14th Edition of the Cox, Bok, Gorman & Finkin Labor Law casebook.Professor Secunda is a frequent commentator on labor and employment law issues in the national media and has written numerous columns and op-eds for the National Law Journal and Legal Times. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country, which is part of the Law Professors Blog Network.
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Tags: Barack Obama, Employee Free Choice Act, ERISA, Family & Medical Leave Act, Paul Secunda
December 2nd, 2008 at 8:42 am
“The percentage of American workers covered by union contracts is now below 8%, as opposed to 16% as recently as 1985.” Thats because companies with unions go overseas or go bankrupt.
December 20th, 2008 at 7:33 pm
Companies without unions are also outsourcing work overseas and companies without unions are going out of business. Maybe the people who are running the companies are mismanaging them?
January 10th, 2009 at 2:11 am
Unions are the backbone of this economy. Prevailing wage is set through a collective bargaining agreement. Both sides, Union and Contractors, determine it. If it was not for the Union we will still be at $4.25 an hour. In my industry I started at $14.00. Mow for my position, starting wage is $27.09, 15 years later. For the last 4 years the rate in the contract has increased $2.00 a year and this year it is going up another $2.50. If it was not for the tough negotiating and representation of the Union, the wages would not be where they are today. Contractors do not pay these wages cause they want to but because they have to, to guarantee a better life for the working class. Medical and Pension is paid by the contractor so the worker and family can take care of themselves now they will have something when they can no longer work or decide to retire. Their are quite of bit of Contractors out their that would like to do away with the Unions to pay whatever wage they want and let the employee worry about their future and health care. We should not be afraid to choose a better life for our families.
March 18th, 2009 at 12:34 pm
Now a days the employees are suffering. They are not getting the required payments. they are only getting the minimum wages. So the minimum wages may pleased be increased to atleast $ 13 per hour plus other benefits. Private company owners are not giving required compensation.
Necessary law may please be passed for return of the laid off employees to their jobs immmediately.
Law may please be passed to stop further lay off and termination.
Submitted for the good governments approval, please.
Thanks & regards,
oommen mathai
May 28th, 2009 at 2:19 pm
Good stuff! ERISA is so unfair that it is uncomprehensable. I am speaking form first hand experience.
June 15th, 2009 at 10:46 am
What Can we common Poeple do about the Bailout? Nothing.. we just have to wait and see if the company comes up and develops new cars and prototypes to please the americal consumer