California Labor &
Employment Law Blog
Nov 7, 2008

Impact of the Election on the Employee Free Choice Act

Topics: New Laws & Legislation

This is a follow up to my blog posting last week on the Employee Free Choice Act. Since Tuesday, I have received a number of questions about the election and the Employee Free Choice Act. I wanted to provide you with my latest thoughts.

We know a number of things we did not know last week:

1. Obama is our President Elect and he was a sponsor of the Employee Free Choice Act.
2. The Senate looks like it will be made up of about 56-57 Democrats, plus two independents (plus Senator Spectorwho previously supported the legislation).
3. The House of Representatives is so overwhelmingly Democratic that it would be very surprising if they did not continue to vigorously support the Employee Free Choice Act and its current provisions. The real questions center around the Senate and our new President.

Here are a number of the key remaining questions/issues:

1. Will the newly elected Senators from traditional Republican states (some who were elected by the slimmest of margains) be willing to alienate the Republicans and business owners who supported them in the election by supporting the Act?
2. What do the Democrats plan to do about Independent Senator Joe Lieberman, who has supported the Act and other Democrat sponsored legislation but aligned himself directly with McCain in the election? If they punish him and kick him out of the Democratic caucus, will he still support the Act?
3. The economy is much worse than it was earlier this year. Will Senator Spector and perhaps some Democratic Senators decide to withdraw support for the Act at this time, given the economic conditions? What about Obama - does he really want to pursue such divisive legislation right out of the box when most feel he needs to spend time bringing the country together and taking a more moderate approach to do so?
4. At least two Senate seats are still up for grabs (Minnesota and Georgia). How will the outcome of these races (and perhaps Oregon and Alaska, too) influence the issues.
5. After all the money the unions provided to elect more Democrats, would the Democrats and Obama consider watering down the bill to try to reach a middle ground to appease the business community, but perhaps anger their more ardent pro-union supporters?

Right now, there are many more questions than answers and I doubt anyone, including our next President, can predict with any reasonable certainty how this will all shake out. Perhaps the best analysis I have seen since the election is the November 6 article in the Wall Street Journal which can be foundhere.

In any case, these are my thoughts and we will continue to keep you updated on any developments related to this very important piece of federal legislation.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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