Elections and the labor law outlook
There are three vacancies on the five-member National Labor Relations Board. The
NLRB administers the nation’s labor laws regulating union activity.
The U.S. Senate has been blocking most appointments to the federal courts in
anticipation that a Democrat in the White House will appoint more liberal,
anti-business judges. These vacancies are delaying important decisions.
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I can guarantee that this election will not be about labor and employment laws,
except to the extent that the winner appoints judges, NLRB members, and
Department of Labor officials inclined to be sympathetic either to business or
labor.
If a Democrat wins the White House, the flood of pro-union and anti-business
legislation coming out of Congress will drown many employers.
Ironically, some of the most progressive labor and employment laws have come out
of Republican administrations. Richard Nixon was president when OSHA was
created, and he was responsible for the current affirmative action requirements
adopted by the federal government.
George Bush the elder changed the civil rights laws by signing amendments
providing for punitive damages, jury trials, and an easier burden of proof for
employees; he also signed the Americans With Disabilities Act.
So, there is no guarantee that John McCain — in an effort to show he can reach deals with the Democrats — will not agree to pro-labor legislation.
In other words, we can expect change in the nation’s labor and employment laws regardless of who becomes president.
Anti-discrimination laws have an emotional appeal to legislators and voters.
After all, do we really want people fired because of their race, sex, age,
pregnancy, national origin, sexual preference, disability, or any other factor
over which they have no control? Of course not, but that’s not how these laws actually work.
What happens in many cases is that employees protected by these laws are, in
fact, terrible employees who deserve to be fired. Yet, employers are reluctant
to take action against such employees out of fear of being sued. Further, no
termination is absolutely perfect, and a good plaintiff’s lawyer can make it look like the employer’s reasons for discharge are less than air tight.
Consequently, these cases are decided by judges and/or agency officials
appointed by the president, and these judges and officials have biases,
regardless of their statements of impartiality.
In another irony, many times the real victims of discrimination — yes, there are still victims — take no action at all. Instead of suing their former employers, they go to work
for their competitors and do a great job. An employer who fires a good employee
for bad reasons never survives long anyway.
Getting back to the importance of presidential appointments, if a judge has a
business background, he or she tends to understand that running a business is
difficult, and he or she tends to see things more from a management
perspective.
If a judge has a government background, or has represented unions and employees,
he or she tends to bring a bias against employers to the job. Every time a
situation needing interpretation is presented to the court, there is a tendency
to favor employees over employers.
The next few years will see a further shift toward pro-employee legislation and
judicial decisions. It will become far more important to perform personnel
actions with skill and documentation. Judges will need to be convinced, more
than ever, that the employee deserved to be fired (or denied the promotion or
wage increase).
The Democrats regained control of Congress in 2006 because of Iraq. The effect,
however, will be a climate even less friendly toward business. Only the
prepared employer has a chance of making it through the next four years.
