Wednesday, November 5, 2008

Obama and the Future of Labor and Employment Law

Obama 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.  Althought 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 CRA 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-consituted Supreme Court overruling the Bivens case of  Bush v. Lucas)..  Such legislation would also provide whistleblowers under SOX 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.


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I certainly agree with your agenda, even recognizing that the world of work will not be transformed with these needed changes in the law. But more needs to be done.

First, and foremost, is to refocus enforcement efforts of the federal agencies that deal with workplace issues. Just one example: I think the EEOC should focus its fairly recently announced policy of emphasizing systemic cases on discrimination at or near the bottom of the economic ladder. Private enforcement simply cannot work to address discrimination against the workers who need it most.

Second, beyond law enforcement, is the need to develop coherent social policy to help rebuild the middle class. I fear I am skeptical that unionization rates will change enough with the amendment of the NLRA and its enforcement to make workers stakeholders in their jobs and it would certainly not address the need to develop new kinds of work in new areas of economic activity.

Posted by: Mike Zimmer | Nov 5, 2008 8:19:22 AM

Of course, this also sounds like a good start for pushing unemployment rates up near those of our international counterparts.
Thankfully I'm an employment lawyer, so this agenda means job security for me!

Posted by: JP | Nov 5, 2008 12:18:40 PM

For all the attorneys~unless a case is extremely complicated, a board of independent experts should be made to mediate many of the cases. We don't need to clutter our courts with blatant wrongs and tremendous attorney fees for simple cases. Stop clogging court rooms and paying attorneys ~ others can be trained to hear and decide ~ if that doesn't work, then a person can hire an attorney and pay court costs. Time to revamp the judicial system and let attorneys do real legal work.

Posted by: Donna Miller | Nov 6, 2008 9:18:43 AM

I would urge deliberate caution in amending the remedy sections of ERISA. I do both Title VII and ERISA class work. When Congress amended Title VII in 1991 to add legal remedies, it made taking individual Title VII cases more financially attractive, but blasted a big hole in systemic cases. Courts held that the provision of jury trials, compensatory and punitive damages created individual issues unsuited to class action treatment (not all courts, of course, but a large enough cohort to poison the well).

I agree that there ought to be legal restitution in ERISA cases, and perhaps double or treble recovery for egregious cases. Beyond that, I'd press ahead only with extreme care, or risk damaging the valuable work being performed in the class ERISA cases.

Posted by: Paul Mollica | Nov 8, 2008 7:50:35 AM

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