California Labor &
Employment Law Blog
Sep 21, 2009

Latest Update On The Employee Free Choice Act

Topics: New Laws & Legislation

Last week, President Obama attended the AFL-CIO convention in Pittsburgh. After that appearance, he attended a fundraiser for Senator Arlen Spector. Earlier this year, Spector switched his party affiliation from Republican to Democrat in anticipation of his Senate seat being up for reelection in 2010.

As we have mentioned here in earlier articles on the EFCA, Spector is a key factor in the EFCA puzzle as he was the only Republican to vote for passage of the original EFCA bill in 2008. Subsequently, earlier this year, before jumping parties, he said he could not support card check or the EFCA. Now that he has switched parties, he appears to be waffling again according to the Wall Street Journal. Apparently, Spector now favors card check and the EFCA. Click here for a link to the WSJ editorial on the issue.

Another key issue in the EFCA debate is the open Massachusetts Senate seat. Senator Edward Kennedy was a key supporter of the EFCA. Under current Massachusetts law, Kennedy's vacant seat will not be filled until a special election is held, which cannot occur until mid-January, 2010. Massachusetts Democrats are considering changing this law to allow Democratic Governor Patrick to appoint an interim senator to the fill the vacant seat in the meantime. Whether this occurs could greatly impact a vote on EFCA if the bill is considered before the Massachusetts special election.

Where does this leave us?Well we don't know for sure other than as follows:

  1. There have been rumblings about a compromise bill that eliminates or softens the card check provisions of the original bill for several months, but nothing has been introduced in either house of Congress.
  2. The original bill with 50% card check and no election at all appears to be close to dead and will be difficult to revive. While it is not clear how the card check provision will be revised, all the discussions seem to indicate that mandatory arbitration will remain in any compromise bill.
  3. Until a compromise bill is introduced, many conservative democratic senators are sitting on the sidelines and are not voicing their positions.
  4. Healthcare reform is at the top of the agenda and until that issue gets resolved or buried, EFCA will likely remain on the back burner.
  5. Even though EFCA is on the back burner, the unions and their lobbyists are continuing to get in front of the key senators to push their position aggressively and make it known that they will not support re-election of those who do not support the EFCA.

In this author's opinion, politics and the economy will probably have the final say. With many Senate seats up for re-election in 2010, there is no question that a number of Senators will cast their ballot on this issue by taking the position that they believe will garner them the most election support. In addition, the economy will likely play a role in that some Senators will be more likely to approve the EFCA if they believe that the economy is on its way to recovery and that American businesses can absorb the additional costs that will likely follow the passage of EFCA.

We will continue to keep you updated.

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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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