Justice WatchLabor relations get new look under Obama
Miami Daily Business Review
December 01, 2008
By: John Pacenti
Kevin Hyde
Labor attorney Kevin Hyde asked a room of attorneys and human resource specialists a simple question: Who is the current U.S. labor secretary? After a deafening silence, one lawyer finally piped up with the right answer: Elaine Chao. She has served longer than any other labor secretary, but her lack of name recognition may be telling on the mark she has left. U.S. Rep. George Miller, D-Calif., whose name popped up as an early candidate for the position in the Obama administration, has called Chao one of the worst labor secretaries in history, saying she “repeatedly torpedoed rules designed to help workers.” Expect that to change. President-elect Barack Obama made it clear on the campaign trail he wants a new landscape in the workplace. “It’s time we had a president who didn’t choke when saying the word union,” he said. “We need a president who knows it’s the Department of Labor and not the Department of Management.” That’s why Hyde, a partner and head of the labor and employment practice at Foley & Lardner in Jacksonville, which represents employers, was at the InterContinental Miami last week to talk about expectations under an Obama administration. Obama promises to overhaul the National Labor Relations Board, which investigates unfair labor practices. He could set the tone with his pick for labor secretary. Miller has said he is not interested, but other names that have surfaced are former Missouri Congressman and presidential candidate Dick Gephardt, former Michigan Congressman David Bonoir, and Andy Stern, president of the Service Employees International Union. Obama also has said he will fight to enforce wage and hour laws, workplace safety, flexible work schedules and telecommuting. He also may redefine which workers are exempt from overtime compensation and push for expansion of the Family Medical Leave Act to smaller companies. How businesses outsource work to foreign countries also could be affected by Obama tax reform. And possibly, Obama’s health care policies will greatly affect employers, worker and retirees. Hyde said it’s not a matter of if changes will occur but when, considering the economic crisis. First 100 days? First term? Second term, if there is one? “Six months ago I think I could have told you what exactly was going to happen. The economic situation is going to trump everything else,” he said. Bob Turk, a partner with Stearns Weaver Miller Weissler Alhadeff & Sitterson in Miami, which represents employers, agreed, saying: “This is strange new world. I think everybody right now is holding their breath. No one really knows what the workplace will look like. It’s going to be different. The question is how different.” Other employment attorneys think Obama will take a different tack on labor than expected. “We have entirely new dynamics at work, and he has take a look at it from a different 30,000-foot perspective,” said Terrence G. Connor, co-chair of the labor and employment practice in the Miami office of Hunton & Williams. But make no mistake, organized labor, which pumped $400 million into 2008 campaigns, expects Obama to live up to his promise to pass the Employee Free Choice Act. “We need a president who strengthens our unions by letting them do what they do best — organize our workers,” Obama said on the campaign trial. “If a majority of workers want to unionize, then should get a union. It’s as simple as that.” The labor-backed bill would significantly change the way unions organize. It would allow workers to organize without the NLRB directing an election if a majority of bargaining unit employees sign cards. It also calls for federal mediation if a union and employer can’t agree on contract within 90 days. If no agreement is reached in one month, the mediator would have the power to draft a contract. Monica Russo, president of the new SEIU’s Florida Healthcare Union, said organized labor has been locked out the process of government for too long and wants a seat at the table in the Obama administration. She said the Employee Free Choice Act is at the head of the table. SEIU expects Obama to sign the legislation in his first 100 days. “We are not looking for a handout or a bailout. We want to be part of the solution,” Russo said. Turk, co-chair of Stearns Weaver’s labor and employment department, said the steep economic dive is not conducive to labor interests, and he foresees Obama moving slower than expected in this area. There is already sentiment blaming labor rather than management for putting the U.S. auto industry on the brink of bankruptcy. Turk said Obama shouldn’t support the bill as written, adding, “You can’t steamroll business right now.” A compromise might be possible on the time for organizing votes. The NLRB also could make changes that would make it easier for unions to organize without the Employee Free Choice Act. He said employers are most afraid of the mediation aspect. “It’s hard to imagine somebody walking into a business and saying, ‘I’m going to decide how much everyone is going to get paid and what benefits they are going to get,’ ” Turk said. “It might not be what the union or the employer would want.” Russo said the threat of mediation would force employers to the table. Other labor issues also are percolating. The Lilly Ledbetter Fair Pay Act is almost sure to pass. She was a middle manager at a Goodyear plant in Alabama who learned two decades after her hiring that she was paid less than male counterparts. The U.S. Supreme Court ruled she missed the 180-day deadline for suing even though she didn’t learn about the discrimination for years. The National Women’s Law Center called the high court decision “a major setback for equal rights.” Employers have other concerns. Mark Zelek, managing partner of the Miami office of Morgan & Lewis, said his corporate clients fear a return to protectionism in efforts to curb outsourcing and maybe even retool the North American Free Trade Act. “The reality is that globalization is here to stay, and many of the economic advances recently are due to globalization,” he said. “I see no turning back on that.” John Pacenti can be reached at john.pacenti@incisivemedia.com or at (305) 347-6638.
