EFCA - The Aftermath of a Compromise

Although last week's NYT story announcing a compromise had been reached to drop the card check portion of EFCA has turned out to be either a trial balloon, a non-event or premature, depending on who you listen to, it has been interesting to see the reaction by advocates on both sides.

The business community has been quick to point out that a killer provision, binding arbitration, remains, which means there can be no compromise. Many union activists are seeing the loss of card check as the end of the line.

Adam Turl, writing in the Dissident Voice is in that camp, but has a somewhat more nuanced view. He acknowledges that EFCA, even without card check could be a significant victory for labor, but doesn't see it in the cards:

However, since Democrats already gave away card check without a fight, there is little reason to believe they will mount a vigorous defense of the compromised EFCA when the Republicans move in to destroy what remains.

Who killed EFCA?

From my perspective it is far too early for anyone to be performing autopsies on the failed EFCA, but Mr. Turl has some very insights into what has been going on behind the scenes by those who would like to see it passed.

As Proud as GE Is of Jack Welch ....

My guess is that lawyers there are happy that he didn't make this speech while he was still CEO, Jack Welch: Women Take Time Off for Kids at Their Peril. Or at least how his speech to the national SHRM conference in New Orleans is being reported.

Among the quotes from the speech as provided by the ABA Journal on line publication, "“There's no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences." Also that women who take "take time off for family could be passed over for promotions if they are 'not there in the clutch.'"

And just in case the point was not made:

Welch said women who take time off can still "have a nice career," but their chances of reaching the top are smaller, according to the Wall Street Journal account. "We'd love to have more women moving up faster," he said. "But they've got to make the tough choices and know the consequences of each one."

It may be that some of his comments were pulled out of context that would have made them seem a little less damning, and it also may be that he is speaking the mind of what many in the workplace (women and men) actually think. In other words saying what is real, not what would be ideal.

But if you were having to defend a discriminatory failure to promote because of gender case brought by a female executive who has taken one or more parental leaves, you would not feel grand about having these words standing as fairly large hurdles to overcome.

EFCA --- Compromise a Done Deal?

The New York Times, Democrats Cut Labor Provision Unions Sought, is reporting that a compromise that drops card check in return for 5 day quickie elections now has the support of 60 senators, enough to ensure passage. Although all details are not being released, the hint is that binding arbitration is still included and there may also be equal access provisions to allow unions to campaign on an employer's premises.

If this pans out, it will be by far the most dramatic change in labor law since I took Professor Jerre Williams labor law course at the University of Texas Law School in the fall of 1973. And if it does include binding arbitration for first contracts, it will be a total revamping of the underlying principles of American labor law. Unfortunately, the last part has received relatively little attention.

One of the most interesting aspects is the immediate reaction of some from organized labor. Jonathan Tasini, who is a passionate advocate for employees at his Working Life blog is disgusted:

"Card check" was the the thing that the bill was about--or so we heard for lo these many months. Now, it's left to the labor movement to explain why what will be left is good enough. That will be an interesting exercise.

We could also admit two things. One, when it comes right down to it, the kind of people labor supports in the Democratic Party are not reliable when it comes down to a fight-or-die moment for workers. Second, the strategy to pass the bill was an insiders game that never engaged the public, partly because we left the campaign in the hands of some people who are entirely clueless about talking to anyone but themselves.

Another option is for some people in the labor movement to decide that maybe it's worth saying, "to hell with you all" and come up with a better organizing and political strategy that does not rest on relying on people who will sell us out in a heart beat.

So Much for the 'Card Check Bill.'

More interesting to me was a 'tweet' from SEIU President Andy Stern, "we expect a vote in the bill or by amendment on majority sign-up in both houses of Congress." EFCA Compromise? at TPM, which follows that "clearly this compromise won't go down without several spoons full of sugar. "

The fact that Stern, who clearly knows the political reality, is making such a comment brings out the cynical fear that what is happening is what many in the business community feared all along. Card check was a stalking horse all along. The rejection of card check is going to be pitched as standing up to organized labor, and to aid in that perception many in organized labor (who secretly are ecstatic with what now seems within their grasp) berate the Democrats for selling them out.

Feeling victory based on the outcry of their opponents, many in the business community whose opposition was focused primarily on the card check provision will think that their mission has been accomplished and turn to other matters.

And almost under the radar, American labor law will be fundamentally changed.

The other thing that adds fuel to that thought is organized labor's desire to have a vote this month. Senate leaders are apparently of the opinion that it can't be done until September. (I am not quite sure why the Senate would want to undergo two more months of battering on this issue, because if they think its been hot up till now, they have not seen anything yet.) If no vote is scheduled until September then it might all come unraveled even if on this particular day in July the votes are there.

Because this is literally about how the American workplace functions, all with an interest, should stay very much engaged.

Seven Years of Jottings. Why?

If on July 17, 2002 when I made my first post, I had a goal to blog until retirement, today would have marked the 1/2 way point, if not to retirement at least to the time when I reach my full social security retirement age. However, I had no goal and no real plan, just trying out a new and interesting technology. I chose to write about a topic I that I knew something about.

The "why" question is one I have asked on numerous occasions, and one I am sure my law partners over the years have asked as well, although I must say never directly of me.

In good blogging fashion, I will refer you to an excellent article by Cliff Tuttle at Pittsburgh Legal Back-Talk, Why Blog? 10.5 Good Reasons, which is what I would have hoped to have been wise enough to write, if I answered the question in full.

Two points, I would particularly emphasize, self-education and reinforcement of learning. A third that is implied if not explicit, is having my own research repository, which has proved to be helpful both to me and to my colleagues over the years.

I would also agree with Cliff that marketing by itself is not a sufficient reason.

As I noted in last year's posting on the 6th anniversary, the number of blogs focusing on labor and employment law is far more than the three I can think of that existed at the end of my first year. (The two others - George Lenard and Michael Fitzgibbon continue as well.) After my list of 49, by April of this year, the folks at Delaware Employment Law Blog, were able to come up with their Top 100 Employment Law Blogs, and I would guess that there have been new ones since that post.

For the future, I intend to continue blogging, maybe writing more about traditional labor law as I think that is going to be more relevant in the near future and returning to stories of MDV's which for some reason seems to have lagged of late. (My posting, not the verdicts themselves.)

For those who have stopped in at some point during the last seven years, thanks.

Not Much Posting, But Still Talking

Posting has been light of late, but speaking events continue no matter what.

For the rest of the month you can catch me at the Texas Association of Business and SHRM State Council 2009 Employment Relations Symposium. More political talk, The Obama Labor & Employment Agenda. Biggest news, so far labor & employment issues have not really been very high on President Obama's agenda. Not to say that there isn't a lot to talk about though.

And next week, I move to internet as a participant on an ABA panel, Understanding the Legal Issues Surrounding the Social Networking Websites that Teenagers and Employees Love.

Two HR Giants Merge

There are not many (if any) HR consulting firms larger than Towers Perrin and Watson Wyatt so their merger as reported at the SHRM website, Consulting Giants Watson Wyatt and Towers Perrin Merge, is pretty big news for those who use or would consider using either of these groups.

The combined firm, to be known as Towers Watson & Co., would have approximately 14,000 employees and revenues of nearly $3 billion.

For those who wonder about who is taking who, while Towers get's the first name, the new CEO will be John Haley, the current CEO of Watson Wyatt.

Supreme Court Gives Victory to New Have Firefighters

Appropriately enough given the venue, Daniel Schwartz at the Connecticut Employment Law Blog has one of the first substantive analyses of this morning's Supreme Court decision in Ricci v. DeStefano (S.Ct. 6/29/09) [pdf].

He also gives good counsel about not rushing to conclusions about the outcome until the 93 pages of the various opinions can be more than just skimmed.

Still, some basics are clear. The 5-4 opinion with Kennedy in the majority and writing the opinion is not a shocker. The 4-4 split is along the well known divide of Scalia, Thomas, Roberts and Alito vs. Stevens, Ginsburg, Souter and Breyer. And given the headline, it is clear that it was the conservative quartet that came out on top this time.

Justice Ginsburg took her role in providing the dissent (38 pages itself).

Among the points:

• it is based on Title VII, not constitutional principles, so it is equally important to private sector employers as well as government employers.
• Justice Kennedy saw the role of the majority to provide guidance to lower courts and parties when an employer is faced with a possible disparate impact case on one hand and a disparate treatment on the other;
• The test is fairly easy to describe -- an employer can not rely on the threat of a disparate impact case as a defense to a disparate treatment case unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. "
• Applying that test is not likely to be all that easy.
• Sure to be much discussed is what Justice Ginsburg meant when she said, "The Court's order and opinion, I anticipate will not have staying power." Another veiled suggestion for legislative override?

Probably the biggest surprise is that given that New Haven had prevailed on summary judgment, the Supreme Court could easily have sent the case back to the trial court for it to apply its newly established standard. However, rather than doing so, it seems to have jumped a step and handed victory to the firefighters:

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

I think that's Supreme Court talk for "this one is over," although I am not sure that will actually turn out to be the case.

This decision is going to get tons of scrutiny and comment, largely because Judge Sotomayor was on the panel of the 2nd Circuit which had a different outcome. To the extent that the commentary focuses on the case itself that's good, when it goes off on how it impacts on her abilities/views etc. I am less interested.

My first instinct is that it is an important case, but applies to a situation that does not come up all that often.

However, the reason that has not come up all that often in recent years is that the OFCCP has changed its direction, with much less emphasis on affirmative action via AAP's and much more attention to discrimination. To the extent that under the Obama administration, that emphasis switches back to what employers subject to EO 11246 faced in much earlier times, the case could be even more important.

Although there's that Ginsburg tease, 'not much staying power.'