United States: Transition To A New (Work)Day: An Initial Look At Workplace Change In The Obama Era

Important Notice

We hope that you will find the information in this Littler Report useful in understanding the issues raised by legislative changes that are likely to occur when President-elect Obama and his administration take office in January. This Report is not a substitute for the advice of legal counsel and does not provide legal advice or attempt to address the numerous factual and legal issues that may arise in any labor and employment law matter.

Contents

I. Introduction

The decisive election of Barack Obama as the 44th President of the United States supported by strong Democratic majorities in the House and Senate has set the stage for unprecedented legislative and regulatory change in employment and labor laws. A unique combination of forces promises to make the magnitude of these changes a once-in-a-generation occurrence. The single thread potentially moderating the coming tsunami is the composition of the U.S. Senate. The closer the Democratic majority is to the magic number of 60 (a filibuster-proof Senate majority), the greater is the ability to deliver on a perceived mandate for employment and labor law change.

This is a time entirely different from 1993 when then newly elected President Clinton had a two-year window with a similar legislative majority. The following forces have combined to form a near perfect storm. First, organized labor has for more than four years planned for a federal government under Democratic control. Rather than dividing their efforts with a long list of proposed changes as occurred under President Clinton, they have focused on one universal goal, the Employee Free Choice Act. This bill when first introduced in 2003 had more individual sponsors than any prior legislative proposal. The litmus test for organized labor's total support of the Obama presidency was his full support for this legislation, which would grow union membership without traditional secret ballot elections. Presidentelect Obama responded by pledging unqualified support with an enthusiasm rarely seen in American politics. Organized labor contributed over $200 million dollars to Obama's campaign and provided thousands of union workers to help the campaign with its "get out the vote" effort. Organized labor, recognizing that their membership in the private sector has dropped to 7.5% (a 100- year low), mortgaged its future on the promise of this legislation and this President. It is difficult to conceive that President-elect Obama will backtrack on his promises or diminish his support. Changes to the National Labor Relations Act are coming and the only question is whether the opposition can find sufficient support in the Senate to stop the pro-labor agenda or negotiate compromises.

With the political power of organized labor reaching a new height, a second force is showing its resolve. The civil rights movement that led to Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act has reached a new threshold and momentum with the election of the first African American president. Proudly, we as a country see President-elect Obama confidently assuming the role of the most powerful leader in the world, while we are simultaneously experiencing the destruction of a glass ceiling from the 18 million cracks made by Sen. Hillary Clinton. A new generation of Americans has arrived with role models and an expectation that all of opportunity's doors are open regardless of gender, race, or other protected category.

This powerful force promises to translate into a legislative agenda on civil rights that first addresses battles lost in the Supreme Court (such as the statute of limitations restriction of the Equal Pay Act) and then targets perceived limitations to the enforcement of these cherished values. The effort in the 110th Congress to remove the caps on Title VII damages will find new life in the Age of Obama. But this national civil rights movement touches much more than statute of limitations restrictions and damage caps. Increasingly, gay rights have been identified as civil rights as applied to employment and conditions in the workplace. A meaningful number of states have long provided protections. Now, it seems certain that strong forces will work through Congress and the new president to bring national change. While it is highly unlikely that Congress will recognize gay marriage in the near term, the classic compromise would be a full set of workplace rights including changes in the tax code to recognize domestic partnerships.

Contributing to the perfect storm bringing change, organized labor and the expanded civil rights movement have found common support in the new government. Under normal conditions, this combined force would mandate immigration reform. Two-thirds of the Hispanic vote was for President-elect Obama, and "rights" for undocumented workers is being cast in the language of "civil rights." Organized labor has been highly supportive of recognizing that economically the nation cannot function without the estimated 14 million undocumented workers and that they are prime targets for unionization. But these are not normal times. Immigration reform may be delayed, given the current economic conditions, by the concern about the loss of jobs and the growing numbers of unemployed. Nonetheless, the forces for change are strong, and it is very likely that the demand for national security will find it intolerable to have 14 million unidentified people within the country's borders. Any second terrorist event would command an immediate registration process and open the door to a work registration program. With any form of legalized worker status, organized labor is poised to unleash a nationwide membership drive.

While the above forces are formidable and empowered, the strongest contributing force for employment and labor law change comes from the meltdown of the economy. This has been a lifetime event resulting not just in economic contraction but true fear and anger reaching Main Street America. This concern and rage is not confined by national borders. It is a global earthquake being felt by employers worldwide. One's first reaction might be to assume that government will be so focused on economic stimulus packages and fiscal policy that employment and labor law reform would take a backseat. Any such assumption fails to recognize that, right or wrong, there has been a monumental loss of trust in established institutions including corporate America. Needed bailouts, perceived corporate excesses, bankruptcies, conflicts of interest, and even criminal prosecutions are associated with the crisis. To put a face on this "monster" one of the popular cable news programs has been identifying "Culprits of the Collapse." Clearly, such a myopic view is wrong and, overwhelmingly, employers have acted as responsible citizens, but this is not the popular perception. Trust has been lost and it will take time for it to be regained. During the interim, regulation and government oversight are almost certain to follow. This means serious review of a long agenda of possible new employment and labor laws and regulations. Dozens of bills introduced to die in the 110th Congress have the promise of life in the 11th Congress, even with the current economic conditions. Job protection bills, privacy rights, medical care, paid leave proposals, anti-arbitration measures, green energy initiatives, workplace flexibility protections and OSHA reform are just some of the topics covered in this report.

Aside from the legislative agenda, the Obama transition team has had in place for weeks a group looking at changes that can be made soon after taking office through the use of Executive Orders and the regulatory process. This group is focusing on resurrecting Clinton-era policies and reversing many of the initiatives of the Bush Administration. Businesses are likely to see change through new regulations and Executive Orders before feeling any impact from any new legislation enacted by Congress and President Obama.

Employers should be careful not to focus solely on legislation when trying to determine what changes they may face in the coming weeks, months, and years. Every indication is that Presidentelect Obama intends to staff his administration with individuals intent on restoring the regulatory oversight of American business that declined substantially under the Bush Administration. Aside from providing increased funding for the Department of Labor (DOL) and its various branches including the Wage and Hour Division and the Office of Federal Contract Compliance Programs, as well as the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), and Immigrations and Customs Enforcement (ICE), employers should expect to see an increase in new and revised regulations to protect workers and provide greater oversight and enforcement of employee rights. Who the new administration appoints to run the DOL and other agencies will provide great insight as to what to expect over at least the next four years.

Despite his support for the Democratic workplace agenda and the actions of his transition team to date, much remains to be seen as to how President-elect Obama intends to govern once sworn into office. Certainly, the state of the economy and the final composition of Congress will factor greatly into both his legislative and regulatory agenda and into what becomes a priority both in the first 100 days and during his first year in office. It is certain the laws and regulations governing the workplace will change under the Obama Administration. What is less certain is whether those changes will be dramatic or more subtle; and whether the changes will come quickly or over time.

The authors of this Report believe that strong forces for employment and labor law change will be active over at least the next two years. No judgment is made about the merits of individual proposals or regulations except to recognize that making the national laws of the United States more like Europe or even California will impact jobs and the worldwide competitive marketplace. With technology making distance nearly meaningless, workplaces throughout the world are more connected than ever before. Global supply chains, outsourcing, virtual work environments, a growing skill and education shortage, and the constant flow of information at the speed of light challenge the United States to be competitive. Even well-intended legislation and regulation will make competition more difficult.

In order to begin to educate employers as to what may be coming, this Report examines in detail the legislative agenda President-elect Obama promised to pursue once in office along with potential nonlegislative changes as a starting point for understanding what the Obama era will mean for employers. To continue the educational process, Littler will maintain a federal Legislative and Regulatory Blog to keep employers apprised of the Obama Administration's key appointments and its ability to implement his agenda for the workplace; as well as that agenda's evolution as it winds its way through the legislative and regulatory processes in Washington, D.C.

While Littler is committed to providing employers with the earliest possible notice of pending legislative and regulatory changes, this is the least of our mission. When appointments are made to key government agencies such as the EEOC and the NLRB, as well as the passage of new legislation, our goal is compliance innovation allowing employers to succeed. In this Report, we outline the Obama agenda and the coming potential changes. We provide employers with ten practical steps that can be taken now to be in a positive competitive position when, and if these changes are experienced. Littler can play an important role as subject matter experts testifying before Congress and regulatory agencies on proposed changes; however, it is not our role to merely complain about the coming changes. We seek to anticipate and prepare employers to maintain a work environment of mutual respect, while continuing to achieve business objectives. For example, in 2008 Littler launched its Total Wage and Hour Compliance Initiative responding to the epidemic of wage and hour class actions. Innovative assessments, policy and practice corrections, affirmative defenses, and state of the art live and e-training solutions were suggested. It is in this spirit that we hope to partner with business to find employment and labor law solutions both nationally and worldwide.

II. Who's Who In The 111th Congress And The New Administration

Congressional Leadership

Although this presidential election has unquestionably brought about "change," the leadership of key congressional committees with authority over labor, employee, and immigration matters in Congress will likely remain the same when the 11th Congress convenes in January 2009. As discussed in the introduction, the Democratic Party gained at least seven seats in the Senate and at least 23 seats in the House, meaning that they may pick up seats on these key committees. This is important because while the moderates will control the fate and ultimate shape of any labor and employment-related legislation that is reported out of committee, it is the committees that will determine the congressional labor and employment agenda.

In the Senate, Sen. Ted Kennedy (D-MA), who was not up for reelection, will retain control of the Health, Education, Labor, and Pensions (HELP) Committee. Senator Kennedy has proven a strong supporter of organized labor over his career and a champion of laws that favor the worker. He has a strong influence over his committee and the shape of the legislation that emerges from it. All major labor and employment law legislation will pass through this committee, meaning that it will be critical to watch what happens in the HELP Committee as the battle over some fundamental labor and employment law changes unfold. Sen. Max Baucus (D-MT) will continue to control the Senate Finance Committee, which has jurisdiction over health care, tax, and pension issues. The third committee to watch closely is the Judiciary Committee, which will be led by Sen. Patrick Leahy (D-VT) as chair. The Judiciary Committee oversees confirmation of Supreme Court justices as well as immigration reform legislation.

In the House, Rep. George Miller (D-CA) will return to chair the House Education and Labor Committee. Like Sen. Kennedy, Rep. Miller is a long-time Capitol Hill veteran and a strong supporter of organized labor and the American worker. He retains strong control over his committee and introduced in the House most of the major labor and employment legislation in the 110th Congress. He will again take the lead on pushing labor and employment reforms through the House. Rep. Dale Kildee (D-MI) will chair the very important Health, Education, Labor and Pensions Subcommittee where the majority of labor and employment legislation initiates. Rep. Charlie Rangel (DNY) will return to chair the House Ways and Means Committee, which is responsible for tax policy, employee benefits, and health care reform. Chairing the Judiciary Committee, responsible for oversight of the federal judiciary and immigration reform legislation, will be Rep. John Conyers (D-MI).

Depending on the direction received from the new administration, the fact that the players on the key labor and employment-related committees will remain the same means that most, if not all, of the agenda items reviewed below will likely be reintroduced in the same or similar form and considered at the committee level. With the enhanced Democratic control of the committees in both houses, congressional Democrats will have no problem moving through committee and to the floor of both houses any piece of their labor and employment agenda. If any of the items discussed in this Report are to be modified from their current form, that will most likely occur after the legislation is out of committee and up for vote in either the House or Senate. There, given the composition of both Houses, moderate and "Blue Dog" (fiscally conservative) Democrats along with moderate Republicans will have a great deal of leverage that can be used to help shape compromise legislation on many of these issues or block passage in the Senate if an acceptable compromise cannot be reached. It is also at this level that the new administration will have its voice heard on what parts of the labor and employment agenda are enacted into law, and in what form.

So, as the new administration and Congress commence work on shaping the future of labor and employment law in the United States, interested observers must keep a close eye on what the key players at the Committee level focus on as they set their priorities for the coming year.

Agency Changes

The Obama transition team already has named the Agency Review Team Leads who are tasked with heading up teams that will review how key government agencies are operating, determine the direction the new administration will want that agency to take, and identify the appropriate individuals capable of carrying out the Obama agenda at the agency level to receive presidential appointments. The key teams to watch will be the Education and Labor team and the Justice and Civil Rights team. The leads for both of these teams are filled with former Clinton Administration officials, signaling that it is very likely that from an agency and regulatory perspective, the new administration may pursue many of the same objectives that were last seen during the Clinton Administration.

Most observers will focus on the key vacancies that Presidentelect Obama will have an opportunity to fill immediately:

• Two vacant commissioner openings on the Equal Employment Opportunity Commission
• Three vacant seats, including the Chair, on the National Labor Relations Board
• Secretary of the Department of Labor
• Leaders of the following divisions of the Department of Labor:

However, just as critical as the leadership in these agencies is who is selected at the next level of presidential appointment tasked with the job of implementing the new administration's labor and employment agenda. While the shape of that agenda is not completely known as of yet, and will depend to a large degree on who is selected to work in those agencies, it is a certainty that the Obama Administration will work to reverse the sharp decline in regulation and oversight of businesses under the Bush Administration. Companies can expect increased funding for the key agencies tasked with addressing employment issues and protecting employees. With increased funding will come the ability for those agencies to proactively police employers for compliance with employment laws and regulations, as well as the ability to enhance the myriad of regulations with which companies are forced to comply. Therefore, who will be selected to lead and work in these agencies is a crucial issue that bears close observation.

III. THE The Legislative Workplace Agenda

Labor-Management Relations

Organized labor's fervent support of President-elect Obama during his run for the White House is well documented. During his campaign, President-elect Obama emphasized his desire to strengthen the labor movement, primarily through legislation aimed at enhancing labor's ability to organize workers. With the current state of the economy causing the incoming administration and Congress to assess their immediate legislative priorities, the new administration's labor agenda may not receive the attention organized labor believes it deserves. However, it is a near-certainty that the 11th Congress and President Obama will focus on labor law reform in 2009.

During the campaign, the Obama-Biden campaign characterized the new administration's labor agenda as follows: Obama and Biden will strengthen the ability of workers to organize unions. [Obama] will fight for passage of the Employee Free Choice Act. Obama and Biden will ensure that [Obama's] labor appointees support workers' rights and will work to ban the permanent replacement of striking workers. Obama and Biden will also increase the minimum wage and index it to inflation to ensure it rises every year.¹

To that end, President-elect Obama supported the labor legislation below during the most recent congressional year.

Organizing Workers

In February, 2007, the Employee Free Choice Act (EFCA) (H.R. 800, S. 1041) was introduced in the 110th Congress by Rep. George Miller (D-CA) and Sen. Ted Kennedy (D-MA), after several versions failed to emerge from committee in prior Congresses. The EFCA was passed in the House of Representatives in March 2007, but stalled in the Senate after its supporters lost a cloture vote 51-49, thereby failing to end a filibuster of the legislation by the opposition. President-elect Obama, while in the Senate, was one of the co-sponsors of the EFCA. The EFCA, if enacted in its current format in the 11th Congress, would result in sweeping changes to the National Labor Relations Act (NLRA), rivaling those created by the original Wagner Act that was passed in 1935. Specifically, it would amend the NLRA to:

1. Require the NLRB to certify a labor union as the exclusive bargaining representative of employees through submission by the union of authorization cards signed by a majority of employees ("card check"), without the benefit of a government-supervised, secret ballot election, if requested by the organizing union;

2. Permit binding interest arbitration if an employer and a newly certified union are unable to reach a first contract within a specified number of days (90 days in the version of the EFCA passed by the House in 2008); and

3. Expand the NLRB's remedial power for employer unfair labor practices during union organizing campaigns and during bargaining for first labor contracts, including the authority to award civil penalties.

The EFCA is organized labor's top priority for 2009. In fact, organized labor plans to strongly advocate consideration . 2. 3. and passage of the EFCA in the first 100 days of the new administration. President-elect Obama included the EFCA in his campaign platform, and has repeatedly stated that he will sign the law if passed after he becomes president. However, it is unclear what the EFCA will look like at that point. It is likely that it will be reintroduced in the same form as in 2007, but the ultimate composition of the Senate will determine whether it passes and in what form. Depending on how close the EFCA's supporters are to being able to invoke cloture, thereby preventing a filibuster by opponents of the EFCA, the proposal may meet the same fate it did in the 110th Congress and die in the Senate; or it may be substantially altered by a bipartisan coalition in a manner that enhances labor's ability to organize but possibly without aspects of the controversial card check and arbitration provisions.

Legislation Prohibiting Right to Work Laws

In many collective bargaining agreements between employers and unions, it is common for the parties to agree to a "union security" clause, which requires workers to pay union dues or their equivalent in order to work for the company. However, Section 14(b) of the Taft-Hartley Act permits states to enact legislation that prohibit that type of agreement. Twenty-two states² have enacted this type of legislation – known as "Right to Work" laws – which prohibit unions and employers (as part of a collective bargaining agreement) from agreeing to make an employee's membership in the union a condition of employment. Historically, due in large part to these Right to Work laws, businesses in these states are not as heavily unionized as companies in states where union membership can be compelled for all of a company's employees. Accordingly, one measure being pushed by organized labor, supported by President-elect Obama, is a proposal to repeal Section 14(b) that would overturn the Right to Work laws throughout the country. The bill was introduced on July 10, 2008, by Rep. Brad Sherman (D-CA) as H.R. 6477 and remained at the committee level. The result of a repeal would be a substantial increase in dues from Right to Work states, as unions begin to insist that all unionized employees pay union dues or their equivalent, instead of payment being voluntary in those states as it stands today. In recent years, numerous bills have been introduced that would repeal Section 14(b), but none have had any success in making it to a vote. With the support of President Obama, the repeal of Section 14(b) could get a more serious hearing in the 11th Congress.

Notably, the last time a serious attempt was made to repeal Section 14(b) was in the Johnson Administration, which was also the last time a Democratic candidate for President won election with as large a percentage of the popular vote as did Presidentelect Obama in 2008. A bill to repeal Section 14(b) passed the U.S. House in July 1965, and despite the support of a majority of senators, failed to overcome a filibuster. However, the issue created the country's first nationwide debate over compulsory unionism, and resulted in re-election problems for some supporters of the repeal. Thirty-nine House members who had voted to repeal Section 14(b) were defeated in primaries or the general election the following year, and not one supporter of Section 14(b) was defeated by a supporter of the repeal.

Reclassification of Supervisors

The Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers (RESPECT) Act was introduced into the Senate and House of Representatives on March 22, 2007, by Sen. Christopher Dodd (D-CT) and Reps. Robert Andrews (D-NJ) and Don Young (R-AK) (S. 969; H.R. 1644). The bills were referred to committee and never made it to the floor for a vote. The purpose of the proposed legislation was to reclassify, under the NLRA, tens or thousands (or more) of supervisors as rank and file employees, who would then be subject to union organizing. The RESPECT Act would do this by changing the 60-year old definition of supervisor contained in Section 2(11) of the NLRA to one that would include many of the employees who are currently considered supervisors.

Prior to 2006, the NLRB had a long history of inconsistently applying its definition of a supervisor. That inconsistency led several courts of appeals to question the deference to which the NLRB's decisions on this issue were entitled, and caused the Supreme Court twice to reject NLRB interpretations of the definition of a supervisor. Under current law, in order to be considered a supervisor, an individual must spend a majority of his or her time performing any one of a list of supervisory functions defined in the NLRA:

The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Most supervisors fall into that category by qualifying under the terms "assign," "responsibly to direct" and/or "independent judgment." Late in 2007, the NLRB issued three decisions concerning supervisory status in which the NLRB clarified the meaning of those three key terms, known as the "Oakwood" line of decisions. These cases expanded the scope of those terms and, accordingly, the number of individuals classified as supervisors for the purpose of the NLRA.

The RESPECT Act is a direct response to the Oakwood decisions. It would eliminate "assign" and "responsibly to direct" from the list, which would move tens of thousands of front line and low-level supervisors within the protection of the NLRA. As a consequence, these supervisors could be forcibly included in, or "accreted" into, bargaining units. In reality, the essential role of a supervisor is managing and directing other employees' work. Very few supervisors actually spend a majority of their time hiring, firing, rewarding, or disciplining employees. They spend part of their time managing the employment status of their workers, but the majority of their time is spent directing those employees' work.

In short, the RESPECT Act goes beyond a simple reversal of the Oakwood line of cases and represents a fundamental change to who can be organized by labor. Along with the EFCA, this bill is a top priority of organized labor. With some level of bipartisan support, the bill will get a fair hearing and may eventually be enacted in some form, perhaps as part of a larger attempt to modify the NLRA in order to fix what some critics see as flaws within the law.

Patriot Employers Act

The Patriot Employers Act was introduced in the Senate in August 2007 by Sen. Richard Durbin (D-IL) (S. 1945) and co-sponsored by President-elect Obama. A companion bill was introduced by Republicans in the House entitled the Eagle Employers Act. Both bills are designed to use the tax code as a carrot to encourage U.S. companies to create jobs within the U.S. that meet specified standards. A company that elects to be designated as a "Patriot Employer" would receive a 1% tax credit if it:

1. Maintains its he . adquarters in the United States;

2. Pays at least 60% of the health care premiums of its employees;

3. Observes a policy requiring neutrality in employee organizing drives;

4. Maintains or increases the number of its full-time workers in the United States relative to its full-time workers outside of the United States;

5. Provides full differential salary and insurance benefits for all National Guard and Reserve employees called to active duty; and

6. Provides its employees with a certain higher levels of compensation and retirement benefits.

Employers would not be required to become Patriot Employers – the program is completely optional. To finance the loss of tax revenue from Patriot Employers, the legislation provides that American companies with subsidiaries abroad would have to pay the U.S. corporate tax on profits earned abroad, rather than the corporate tax of the host country where the profits are earned. Since the U.S. corporate tax rate is currently 35%, and many of the countries around the world have lower tax rates for businesses, this would result in a significant tax increase on earnings earned abroad for companies with foreign subsidiaries. House Republicans have introduced a similar bill, the Eagle Employers Act, which has identical provisions, except that the Eagle Employers Act does not include the policy requiring neutrality in employee organizing drives.

During the recent campaign, President-elect Obama spoke often about job creation in the United States and stopping the outsourcing of jobs to other countries. With apparent bipartisan support, it is likely the Patriot Employers Act will be re-introduced and considered early in 2009. Because being a Patriot Employer would be voluntary, the bill has appeal to many in Congress; although the tax increases on earnings abroad may prove to be a roadblock to enactment.

Banning of Permanent Replacement Workers

While no significant legislation has been considered recently, the prohibition on the use of permanent replacement workers by employers being struck is something high on organized labor's agenda and championed by President-elect Obama. Currently, when a union engages in an economic strike, a company can hire "permanent replacement" workers to take the place of striking employees. When the strike is over, the permanent replacements can lawfully remain in their positions. The employees they replaced are not terminated, but cannot immediately return to work absent openings for which they are qualified. Otherwise, they go on a re-hire list and in some cases do not return for some length of time, if ever. The use of permanent replacements is a significant tool for employers to blunt the effectiveness of a strike and gives the employer substantial leverage in labor negotiations.

For obvious reasons, organized labor would like to see this tool taken away from employers. Accordingly, the banning of permanent replacements is part of the labor agenda just as it was in the 1980's when labor pushed for overall change in labor law.

National Labor Relations Board

Currently, three of the five seats on the NLRB remain vacant, including the important position of Chair. Traditionally, the party that controls the White House has three seats on the NLRB and the other party gets one or two seats (independents also can be seated). Under the Bush Administration, the Republicancontrolled NLRB issued several key rulings that organized labor and some Democrats in Congress are determined to reverse. President-elect Obama was supportive of these reversals during his campaign and while in the Senate. As discussed in this Report, some of these rulings are already the subject of legislation such as the RESPECT Act. Others may be overturned either through legislation or through new NLRB rulings. These key cases were:

• IBM Corp.³ which limited Weingarten rights to unionized employees (Weingarten rights are an employee's right to be accompanied by another employee/representative at a meeting which the employee reasonably believes could lead to discipline);
• Register Guard,⁴ holding that employers can prohibit employees from using the Company's email system to send union-related email);
• Dana/Metaldyne,⁵ which provided for a secret ballot election when a union wins a voluntary card check election, provided 30 percent of the bargaining unit requests it within 45 days of the card check election;
• BE&K Construction,⁶ which made it easier for companies to sue unions for disruptive litigation;
• The 'Salting' Cases,⁷ which (1) required that an employee have a genuine interest in doing the job (and not in organizing the employees) in refusal-to-hire cases; and (2) reduced back-pay remedies for terminating a union "salt"; and
• Brown University,⁸ which held that graduate assistants are not employees and therefore not protected by the NLRA, including the right to join a union.
• H.S. Care L.L.C.,⁹ which held that temporary employees, who are jointly employed by a personnel staffing agency and the employer, are not members of the bargaining unit unless both employers consent.

Aside from these changes, look for a new Obama-appointed NLRB to be active in enforcing the NLRA and in seeking opportunities to enhance employee and union rights at the expense of management. If the EFCA passes in any form, the Obama NLRB will have the regulatory opportunity to shape how the new law will operate in practice in a way favorable to organized labor.

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