Labor laws change with every administration, and as an employer, keeping up to date is a necessary burden. G. Mark Jodon of Littler Mendelson discusses what has happened and what can be expected during President Obama's administration in terms of labor and employment legislative and executive initiatives. He explores the administration's priorities from both a regulatory and a legislative perspective.

1. A New Day In The American Workplace:
Labor Law Changes in the Obama Era

2. G. Mark Jodon, Esq.
• Shareholder in the Houston office of Littler
Mendelson, the nation’s largest labor and
employment law firm.
• Mr. Jodon's practice focuses on employment related
litigation before state and federal courts, as well as
governmental agencies such as the Equal Employment
Opportunity Commission, Texas Workforce Commission,
Occupational Safety and Health Administration, National
Labor Relations Board, and the Wage and Hour Division of
the United States Department of Labor.
• Mr. Jodon is a frequent lecturer at labor and employment
seminars and he conducts HR training workshops

3. Today’s Agenda
• Understand how the shape of the Obama
Administration and the New Congress will
impact employers
• Peek at what is on the legislative and
regulatory horizon from a labor and
employment perspective
• Discuss the potential impact
of these changes in the workplace

4. What We are Going to Discuss...
• The New Administration
• Legislative Front
• Labor Law Agenda
• Employment Discrimination Legislation
• Work-Family Balance Initiatives
• Other Coming Workplace Change

5. Disclaimer
• The presentation is not intended to be
partisan
• The information presented is factual,
based on actual legislation and
positions taken by President Obama,
members of his administration, and
Congressional leadership

6. The Lay of the Land in DC:
The New Administration

7. The Atmosphere in Washington
• Organized Labor, employee
advocacy groups, and their
allies are very frustrated
• Belief that Bush
Administration has ignored
workers in
favor of companies
• Reduced enforcement and
rule-making in key agencies
during Bush Administration
• Make up for lost time

8. The New Secretary of Labor
Hilda Solis Hilda Solis

9. The New Secretary of Labor
• Staunch Union Supporter
– 97% lifetime rating by AFL-CIO for
pro-union voting record
– Member of the American Rights at
Work Board of Directors
• Strong proponents of EFCA
• Workplace Safety
• Led by former Representative David Bonier
(D-MI)
– Vocal EFCA proponent

10. The New Secretary of Labor
• First Public Appearance:
– AFL-CIO Executive Council meeting
– Quote:
“There’s a new sheriff in town”
– Promised to:
• Provide protection to workers in the workplace
• Help workers get “family-supporting” jobs
• Enforce EFCA

11. Possible Changes at the DOL
• $2 Billion in additional
funding this year
• Solis has spoken
in favor of increased
OSHA and MSHA
funding
• Expect renewed focus on
overtime violations and
employee
misclassification

12. New Chair of the NLRB:
Wilma Liebman

13. Possible Changes?
• National Labor
Relations Board
(NLRB)
– Increased rulemaking
activity
– Employee Free Choice
Act (EFCA)

14. NLRB Changes
• Three vacant seats on NLRB
• Obama’s Democratic nominees:
– Craig Becker (Associate General Counsel, SEIU)
– Mark Pearce (Union-Side Labor Lawyer)
• Move to overturn controversial Bush-era rulings:
– Temporary Workers
– Weingarten Rights for non-union employees
– Use of employer e-mail system for union solicitation
– Anti-salting cases
– Secret-ballot election to reverse card check

15. Executive Orders Affecting
Federal Contractors
• 4 have already been issued:
– Notification of Employee Rights
Under Federal Labor Laws
– Non-displacement of Qualified
Workers Under Service Contracts
– Economy in Government Contracting
– Use of Project Labor Agreements
in Federal Construction Projects

16. EEOC
• Stuart Ishimaru (Acting Chair) and
Christine Griffin (Acting Vice Chair)
• Both have lamented the lack of
enforcement at the agency

17. EEOC – What to Expect?
• Genetic Information Non-Discrimination
Act (GINA) proposed regulations were
introduced
• Final regulations governing genetic
discrimination in employment will be
issued soon (i.e. prior to November 21,
2009)

18. EEOC – What to Expect?
• More funding
• More enforcement
• More regulations / rule-making

19. The Lay of the Land in DC:
The Legislative Front

20. Setting the Stage in Congress
• Democrats regained control of Congress in
2006 after 10 years of Republican rule
• Senator Arlen Specter has changed to
Democratic Party
• Strong belief that “Main Street” was
ignored in favor of “Wall Street”
• Perception that workers have fallen behind
economically and that protections have
weakened

21. President Obama &
the 111th Congress
• Past is prelude . . .
– 110th Congress “road-tested” many
of the initiatives we’ll discuss today
– Obama vocally advocated for significant
change in labor and employment laws
– Many significant initiatives have already
been introduced – and one has passed
(Ledbetter Act)
• First 100 Days set the tone
• Current economic environment may build
popular support for employee
“protections”
• Are employers in store for a sea of
change?

22. What Does History Tell Us?
• Franklin D. Roosevelt’s First 100 Days & Beyond
• Political and Economic Situation
– Economic situation and shift in party power very
similar to today
– Organized labor’s role instrumental in election
of both FDR and Obama
– Congress granted President extraordinary powers
to combat Great Depression
– Groundbreaking changes intended to reverse the
economic devastation in America – job creation
and infrastructure initiatives
– Labor agreed to set-aside its agenda for the good
of the economy and the country

23. What Does History Tell Us?
• Eventual Impact on Employers
– Fundamental change in employment laws
designed to protect workers and build the
middle class:
• National Labor Relations Act
(right to organize, engage in collective
bargaining, and take
part in strikes)
• Fair Labor Standards Act
(established a minimum wage
rate, a 40-hour work week, and
the requirement to pay overtime)

24. What is Next?
• 5-Way Battle shaping up between:
– Organized labor, advocacy groups,
and their Congressional supporters
– Moderate (DLC/Blue Dog) Democrats
and Republicans in Congress
– Moderate influences in the Administration
– Pro-labor Administration members
– Business groups
• Let’s look at what they will be battling over . . .

25. The Labor Law Agenda:
A Second New Deal?

26. Employee Free Choice Act
(EFCA)
• INTRODUCED ON MARCH 10, 2009
• Changes the National Labor Relations Act
(“NLRA”) to:
– Permit card check authorization in lieu of secret ballot
elections if a simple majority of employees in a selected
group signs union authorization cards
– Strict time limits on negotiations for initial collective
bargaining agreements
– Requires mandatory mediation and binding
arbitration if time limits are not met
– Enhanced penalties for certain violations of the NLRA

27. What This Means for Employers
(if enacted)
• Dramatic rise in union organizing
• Employees may unwittingly
unionize
• Ability to negotiate a union
contract favorable to the
company greatly diminished
• Potential legal exposure under
the NLRA will expand
dramatically

28. Will EFCA Become Law?
• No crystal ball
• 10 current Senators failed to
co-sponsor EFCA this time
• Senators who may not vote
for cloture:
– Lincoln (D-AR)
– Pryor (D-AR)
– Feinstein (D-CA)
– Bennet (D-COL)
– Udall (D-COL)
– Carper (D-DEL)
– Landrieu (D-LA)
– Nelson (D-NE)
– Johnson (D-SD)
– Specter (D-PA)
– Warner (D-VA)
• Not enough votes to end a filibuster as of
today!

29. Possible Compromise?
• Sen. Arlen Specter (D-PA) under
pressure from both sides – has explored
compromise in the past
• Sen. Specter announced on March 24,
2009 that he will not vote for cloture on
EFCA in its present form
– Set forth numerous compromise
provisions that he would be willing to
consider
– After switching parties, reaffirmed
opposition to current version of EFCA
?
• Feinstein/Specter compromise: mail-in
ballots instead of card check

30. Freedom From Union Violence
Act of 2009
(H.R. 2537)
• Would impose a fine up to $100,000
and/or prison sentence up to 20 years
for anyone who commits an act of
violence or extortion during a labor
dispute
• Amends the Hobbs Act
• Anti-racketeering measure

31. RESPECT Act
• The Re-Empowerment of Skilled
and Professional Employees
and Construction Trade Workers
("RESPECT") Act”
– Dramatically reduces the number of
employees an employer can designate
as supervisors
– All of the new “non-supervisors” would
be eligible to organize
and join unions
– Potentially large source of new
members for unions

32. Patriot Employers Act
• To qualify as a “Patriot Employer”
a company would need to:
– Be headquartered in the United
States
– Provide heath care benefits
– Adopt a neutral stance toward
unionization
– Maintain its domestic workforce
levels
– Subsidize salaries/benefits of
employees on active duty in the
military
– Provide retirement benefits

33. Other Labor Law Initiatives
• Repeal of Right
to Work laws
– Law in 22 states
– Prohibits compulsory
payments to unions
“Obama and Biden will ensure that his labor
appointees support workers’ rights and will
work to ban the permanent replacement of
striking workers.”
-From President Obama’s Campaign Website

34. The Employment Law Agenda

35. Employment Law Agenda
(from the Obama Campaign Website)
• Combat
Employment
Discrimination
• Create a Better
Work / Family
Balance

36. Lilly Ledbetter Fair Pay Act
• Signed into law on January 29, 2009
• Reaction to Supreme Court Ruling
• Amends the Civil Rights Act of 1964 (applies
to ADA, and ADEA as well)
• Codifies “Paycheck Rule”
• Significant expansion of potential liability
for discriminatory pay practices
• Could significantly increase employers’ record-
keeping burdens

37. Paycheck Fairness Act
(H.R. 12, S. 182)
• Passed the House on January 9; pending on the Senate’s
calendar
• Amends Fair Labor Standards Act (FLSA) to allow victims
of pay discrimination to potentially recover unlimited
punitive and compensatory damages
• Prevents employers from relying solely on the “factor
other than sex” affirmative defense; Instead, employers
must additionally prove that such factor is “job related”
and serves a “legitimate business purpose”
• Employees could rebut this claim by showing that an
alternative employment practice exists that could achieve
the same business purpose
• Eliminates the requirement that employees work in the
same establishment for wage comparison purposes

38. Employment Nondiscrimination
Act of 2007
• Prohibits discrimination
based upon actual
or perceived sexual
orientation
• Based on state and local
laws already in place in
several jurisdictions
• No affirmative action
requirement
• Would not require
provision of benefits
to unmarried couples

39. Minimum Wage
“Raise the Minimum Wage to $9.50 an Hour by 2011:
Barack Obama and Joe Biden believe that people who
work full time should not live in poverty. Before the
Democrats took back Congress, the minimum wage had
not changed in 10 years. As President, Obama will further
raise the minimum wage, index it to inflation.”
– From President Obama’s Campaign Website
Seen as the most direct way to put money in the pockets of the
middle class
Reflection of what is happening in many states

40. WAGES ACT
(H.R. 2570)
• Working for Adequate Gains for
Employment in Services Act
• Would initially increase tipped
employees’ hourly wage from $3.75 to
$5.00
• Wages would then increase the
following year to be 70% of minimum
wage or $5.50/hr (whichever is greater)

41. Other Civil Rights Initiatives
• Major Changes:
– Elimination of caps on jury awards
for discrimination
– Greater awards under the FLSA
– Allows undocumented workers to
recover damages
– Limits mandatory arbitration in
employment agreements
– avoids a post hoc justification for an
employment practice that adversely
impacts the wages of women
– disparate impact cases under Title
VII and ADEA are treated the same

42. Arbitration Fairness Act of 2009
(H.R. 1020)
• Introduced on February 12, 2009
• Would invalidate most employment-
related pre-dispute arbitration
agreements
• Passage unlikely, although it had
several (39) co-sponsors
• Similar provisions could make their
way into civil rights legislation

43. Servicemembers Access to
Justice Act of 2009 (H.R. 1474)
• Introduced on March 12, 2009
• Strengthen enforcement of the
Uniformed Services Employment and
Reemployment Rights Act (USERRA)
– Ban pre-dispute arbitration agreements
– Increased employer penalties for violations,
including compensatory and punitive
damage awards, and attorneys’ fees
– Clarifies that USERRA prohibits wage
discrimination against members of the
armed forces
– Defines “successor in interest”

44. Status of the ADAAA
Took effect January 1, 2009
• First: Expands the definition of “major life
activities”
• Second: Prohibits consideration of most
mitigating factors in assessing whether an
individual is disabled
• Third: Allows employees who are “regarded as”
disabled to pursue discrimination claims
regardless of whether the perceived impairment
limits a “major life activities” (unless the
impairment is transitory and minor)
– Effective Date: January 1, 2009

45. Work/Family Balance

46. Work/Family Balance
“Obama and Biden will double funding for after-
school programs, expand the Family Medical Leave Act,
provide low-income families with a refundable
tax credit to help with their child-care expenses,
and encourage flexible work schedules.”
– From the Obama Campaign Website
• Expand the Family and Medical Leave Act
• Encourage States to Adopt Paid Leave
• Protect Against Caregiver Discrimination
• Expand Flexible Work Arrangements
• Expand Paid Sick Days

47. National Defense
Authorization Act
• Signed into law on January
28, 2008
• Includes amendments
to FMLA re: Military
Family Leave
– Military
Caregiver Leave
– Qualifying
Exigency Leave
• Regs answer open
questions

48. Expansion/Enhancement of
FMLA
Expand the Family and Medical Leave Act: The FMLA
covers only certain employees of employers with 50
or more employees. Obama and Biden will expand it
to cover businesses with 25 or more employees.
They will expand the FMLA to cover more purposes
as well, including allowing workers to take leave for
elder care needs; allowing parents up to 24 hours of
leave each year to participate in their children's
academic activities; and expanding FMLA to cover
leave for employees to address domestic violence.
– From President-elect Obama’s Transition Website

49. Working Families Flexibility Act
• Working Families
Flexibility Act (H.R. 1274)
(introduced March 3,
2009)
– Request flexible work options
– Interactive process
– Denial requires explanation
– Employee can file complaint
with the DOL
– Penalties and federal court
review

50. Family Fairness Act of 2009
(H.R. 389)
• Introduced January 9, 2009
• Would eliminate the hours of
service requirement under the
FMLA
• An employee would still be required
to have worked for the employer for
at least 12 months
to be eligible for FMLA leave
• Practical effect is that more
employees – especially part-time
employees – would be eligible
to take FMLA leave

51. Family and Medical Leave
Enhancement Act of 2009 (H.R. 824)
• Introduced on February 3, 2009
• Would amend the FMLA to allow employees to
take parental involvement or family wellness
leave
– Up to 4 hours of leave in a 30-day period, not to
exceed 24 hours in a 12-month period for:
• Child’s or grandchild’s school or community organization
activities (play, parent/teacher conference, sports event,
cub scouts)
• Routine dental/medical appointment
• Attend to needs of an elderly relative (visits to nursing
home)
– Applies to employers with 25 or more employees
within prescribed radius, not 50 under current law

52. Family-Friendly Workplace Act
(H.R. 933)
• Introduced on February 10,
2009
• Would amend the Fair
Labor Standards Act to
permit private-sector
employees to choose comp
time in lieu of cash wages
• Already in place and
popular in the public sector

53. The Family Leave Insurance Act
of 2009 (H.R. 1723)
• Introduced on March 25, 2009
• Paid FMLA leave for employees
• Administered through a federal
insurance fund
• Paid for through employer and
employee payroll taxes
• Applies to any employer who
employs 2 or more individuals for
more than 20 workweeks
• Employees eligible for paid leave
after six months
• Similar law already in effect in
California

54. Expansion/Enhancement
of FMLA
• The Family and Medical
Leave Expansion Act
– Incentive for states to adopt
paid leave laws
– Smaller employers would
have to provide FMLA leave
– Adds domestic violence as a
cause for taking FMLA leave
– Permits a total of 24 hrs of
leave during any 12-month
period for a parent to
“participate in an academic
activity of son or daughter...”

55. Healthy Families Act
Expand Paid Sick Days:
Half of all private sector
workers have no paid sick
days and the problem is worse
for employees in low-paying
jobs, where less than a
quarter receive any paid sick
days. Obama and Biden will
require that employers provide
seven paid sick days per year.
– From Obama’s Presidential
Transition Website

56. Healthy Families Act
• Healthy Families Act (2007)
– Employers with 15
or more employees
– Mandatory paid sick leave
– Private right of action
for employees
– Carryover from year
to year
– Posting requirement

57. Domestic Violence Leave Act
(H.R. 2515)
• Would amend the FMLA by extending
coverage to domestic partners
• Would permit leave to address acts of
domestic violence, sexual assault and
stalking

58. FMLA Final Rules
Effective January 16, 2009
• Change to rules for employees who “age into”
eligibility standards
• Provides rules for Military Family Leave and defines
“exigencies” for National Guard and Reserve Troops
• More specific requirements for Serious Health
Condition
• Employer notice requirements increased
• Employee notice obligations slightly more rigorous
• Substitution of paid leave: employer may require
employee to follow policies and procedures of the
applicable leave

59. Highlights of the Regulatory
Changes to the Final Rules
• Certification requirements and process – greater
clarification and employer permitted to use non-health
care provider, other than supervisor, to contact
employee’s health care provider for authorization and
clarification
• Perfect attendance awards now permissible
• Fitness-for-duty certification rules permit employer to
require certification for employee returning from
intermittent leave if there is a risk of harm
• Can settle FMLA claims without DOL or court approval

60. ARRA of 2009:
COBRA Revisions
• American Recovery and Reinvestment
Act of 2009 (“ARRA”) significantly
revises group health plan coverage
continuation provisions of COBRA
• ARRA became effective February 17,
2009, but applies to employees who
are “involuntarily terminated” on/after
September 1, 2008 and on/before
December 31, 2009

61. Possible Compromise?
• Sen. Arlen Specter (D-PA) under pressure from both
sides – has explored compromise in the past
• Sen. Specter announced on March 24, 2009 that he
will not vote for cloture on EFCA in its present form
– Set forth numerous compromise provisions that he
would be willing to consider
– After switching parties, reaffirmed opposition to
current version of EFCA
• Feinstein/Specter compromise: mail-in ballots instead
of card check

62. ARRA of 2009:
COBRA Subsidy
• Involuntarily terminated employee may be eligible
for a 9-month, 65% reduction in COBRA premiums,
provided:
– Employee pays 35% of the applicable COBRA premium
– Employee otherwise meets the requirements for COBRA
coverage (e.g., not eligible if terminated for “gross
misconduct” nor if eligible for other group coverage or
Medicare)
– Premium reduction must be repaid by “high income
individuals” (phase-in begins at modified AGI of $125,000
and full repayment obligation kicks in if earn $145,000;
higher threshold amounts for joint-filers)

63. ARRA of 2009:
COBRA Subsidy
• Once an employee elects COBRA
coverage and pays 35% of the premium,
the employer must “front” the remaining
65% of the premium
• Employer is reimbursed from the
employer’s quarterly federal payroll tax
transmittals

64. ARRA of 2009:
What Employers Must Do
• Identify employees involuntarily terminated
on/after September 1, 2008
• Employer must notify individuals who have
a qualifying event about the COBRA
subsidy
• The deadline has passed for notification
for those affected prior to February 17th

65. Other Legislative Changes

66. FOREWARN Act
• FOREWARN Act of 2007
• Changes to WARN:
– Covers smaller employers
– Lowers the number of
employees affected to
trigger WARN

67. FOREWARN Act
• Requires an employer to:
– Give more notice
to employee and
the government
– Notify the Secretary
of Labor
– Doubles the penalties for non-compliance

68. “Blacklisting” of
Federal Contractors
• Has potential to disqualify many
businesses as federal contractors
• Potential ways contractors can be
“blacklisted”
– Unsatisfactory Contractor
– Need justification to award contracts
to businesses with 2 or more offenses on
record
– Database to track offenses, including
settlements
• May be accomplished through Regulations
instead

69. “Blacklisting” of
Federal Contractors
• Typical current “non-
issues” that could cause
problems under the
blacklisting legislation:
– NLRB charges
– DOL investigations
– OSHA inspections
– OFCCP Audits
– EEOC charges

70. RAISE ACT
(H.R. 2731 and S. 1184)
• Rewarding Achievement and
Incentivizing Successful Employees Act
• Would amend the NLRA to permit
financial incentives beyond the pay or
compensation level set in a collective
bargaining agreement

71. The Most Recent Proposals
• Breastfeeding Promotion Act of 2009
(H.R. 2819; S.1244)
• Wounded Veteran Job Security Act
(H.R. 466)
• Truth in Employment Act (H.R. 2808;
S.1227)

72. What You Can Do!
• Be informed . . .
– www.littler.com
– Littler’s DC Employment Law
Update Blog:
www.dcemploymentlawupdate.com
– Transition to a New (Work) Day
• Take the time to prepare
• Plan for change

73. Question & Answer
For More Information:
Mark Jodon
(713) 652- 4739
mjodon@littler.com
or
Anthony Grijalva
G&A Partners
4801 Woodway, Suite 210
Houston, Texas 77056
(713) 235-8280
www.gnapartners.com
agrijalva@gnapartners.com