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A legislative movement is afoot in Washington this year that could radically reform labor and employment laws, which has employers crying foul and unions applauding. Pending legislation could do everything from expanding union organizing to mandating paid sick leave, thereby exposing companies to even more regulation and litigation. “Big changes could be afoot,” said Adam Forman, a management-side attorney at Detroit’s Miller, Canfield, Paddock and Stone who believes the upcoming election will have a “direct impact” on labor and employment laws. “There’s a groundswell of interest in correcting perceived inequities in the labor and employment world . . . .I’m not sure any employment law will be immune from an examination,” he said. And they shouldn’t be, said Julie Martinez-Ortega, a former employee rights attorney and current research director at American Rights at Work, a nonprofit labor advocacy group in Washington. “There is a severe crisis right now for workers,” said Martinez-Ortega, who believes labor laws specifically have been misinterpreted over the years to favor employers. Ballots and definitions Topping nearly every management-side law firm’s list of major concerns is the Employee Free Choice Act (EFCA), which would do away with secret-ballot union elections and allow unions to organize just by collecting cards from a simple majority of employees. That means, if a company has 50 employees and 26 sign the cards, the business is unionized. Management-side lawyers say that’s a significant departure from current law, which requires signatures first to be collected, then a private election to be held before a company is organized, giving employers a heads-up and a chance to voice their concerns to employees. Equally troublesome for employers is the Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers (RESPECT) Act, which would widen the pool of those eligible to join a union by changing the 60-year-old definition of “supervisor” under the National Labor Relations Act (NLRA). The new definition would require employees to spend a majority of their time in actual supervisory roles before they could be classified as a supervisor. Lawyers say changing the NLRA definition of a supervisor could have a trickle-down effect on wage-and-hour laws, which also exempt certain supervisors from overtime, and could lead to even more employees suing for overtime. There’s also the Healthy Families Act, which would guarantee seven paid sick days for employees who are sick or need to care for a family member. There is no current federal or state law mandating sick leave. Lawyers say this bill could put undue pressure on employers and affect the Family and Medical Leave Act, which allows employees to take 12 weeks of unpaid sick leave, and permits employers to require employees to take FMLA concurrently with paid sick days. Also pending is the Arbitration Fairness Act, which would ban mandatory binding arbitration clauses in consumer and employment contracts, making it illegal for companies to require consumers and workers first to go through arbitration to resolve disputes rather than to go directly to the courts. ‘A real crossroads’ “There seems to be a pent-up demand for legislative action concerning certain workplace issues,” said Paul Salvatore, a labor and employment law partner at New York-based Proskauer Rose. “I’m no psychic, but I predict that if a Democrat or even a moderate Republican wins the presidency in 2008 and Congress stays in Democratic control, these legislative efforts could become law, resulting in major labor law reform.” Adding to employers’ fears is the eventual changing of the guard at the National Labor Relations Board, which currently has three openings. Unions in recent months have criticized NLRB rulings as being too employer-friendly, and are calling on lawmakers to fill the vacant slots with pro-labor members. The president makes the final decision on filling the vacancies. “I think we’re at a real crossroads in the area of traditional labor law,” said management-side attorney Don Schroeder of Boston-based Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, who believes that unions could get their long-awaited boost from Congress this year. “Unions actually have a platform that they’re expecting the Democrats to run on, and what’s currently on the table � there’s actually some meat on the bones.”

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