Jottings By An Employer's Lawyer

Sunday, June 08, 2008

Ads, News Stories -- the Employee Free Choice Act is Serious Business

Although it made a short lived run in this Congress, the improperly named Employee Free Choice Act, will quite likely be in the headlines on a regular basis next January and February. Although clearly it depends on the outcome of the election, my guess is that there will be an attempt to get it to the new President's desk as quickly as the Family Medical Leave Act made it to President Clinton's. Fortunately, I don't think that's likely.

Unlike the EFCA, the FMLA had been in the works for a long time. Here's a brief history from the political blog, The Personal Is Political:

1. Senator Chris Dodd is generally credited as being the author of the FMLA. He wrote and introduced a version of it in 1986, six years before Bill Clinton ran for president and seven years before Clinton took office.

2. It was a long slog to get the FMLA passed. The Senate would have passed it under Reagan but because there was a threatened presidential veto and a filibuster it was pulled.

3. Then Congress passed it twice during George H.W. Bush’s presidency. It was vetoed both times.

4. When Bill Clinton ran for office in 1992, he promised he would sign this legislation.

5. After Clinton was elected, the Congress took this up quickly, in part to show that they and the new president could break the Washington gridlock and could get things done.

6. The Family and Medical Leave Act, H.R.1 and S.1, was passed by the House on February 3 and by the Senate on February 4. While they had passed it twice before, because this was a new Congress, they needed to pass it again.

7. Fulfilling his campaign promise to sign the bill that had been authored by Dodd and vetoed twice by the former president, the FMLA was the very first piece of legislation signed by President Clinton.

That was two weeks and two days after his inauguration, a record that will be hard to top.

But there is no question that it is at the top of organized labor's agenda. That's why even during the legislative "off season" business group's are already running ads and unions are busy denouncing them. The NAM's blog, Shopfloor had an interesting report on the battle in Maine, Card Check: But What About the Substance? which also has a link to the ads themselves, click here.

Why Maine? My guess is that it's because that's where two moderate Republican senators, Olympia Snowe and Susan Collins live. In this year's EFCA cloture vote, both Senator Snowe and Senator Collins voted against cloture. The vote was 51 - 48, which indicates that there is still a lot of work to go before EFCA will just sail through Congress.

However, Senator Collins is up for re-election and can't be too thrilled about having to talk about that vote in an election season where Senator Obama is almost sure to carry Maine.

That advertising about a specific piece of legislation is not only being run but fought over six months before it will likely be voted on again in Congress in the relatively small state of Maine gives you a hint about the stakes involved. Employers should take heed.

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