Jottings By An Employer's Lawyer

Thursday, July 23, 2009

EFCA - The Aftermath of a Compromise

Although last week's NYT story announcing a compromise had been reached to drop the card check portion of EFCA has turned out to be either a trial balloon, a non-event or premature, depending on who you listen to, it has been interesting to see the reaction by advocates on both sides.

The business community has been quick to point out that a killer provision, binding arbitration, remains, which means there can be no compromise. Many union activists are seeing the loss of card check as the end of the line.

Adam Turl, writing in the Dissident Voice is in that camp, but has a somewhat more nuanced view. He acknowledges that EFCA, even without card check could be a significant victory for labor, but doesn't see it in the cards:
However, since Democrats already gave away card check without a fight, there is little reason to believe they will mount a vigorous defense of the compromised EFCA when the Republicans move in to destroy what remains.
Who killed EFCA?

From my perspective it is far too early for anyone to be performing autopsies on the failed EFCA, but Mr. Turl has some very insights into what has been going on behind the scenes by those who would like to see it passed.


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Monday, July 20, 2009

As Proud as GE Is of Jack Welch ....

My guess is that lawyers there are happy that he didn't make this speech while he was still CEO, Jack Welch: Women Take Time Off for Kids at Their Peril. Or at least how his speech to the national SHRM conference in New Orleans is being reported.

Among the quotes from the speech as provided by the ABA Journal on line publication, "“There's no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences." Also that women who take "take time off for family could be passed over for promotions if they are 'not there in the clutch.'"

And just in case the point was not made:
Welch said women who take time off can still "have a nice career," but their chances of reaching the top are smaller, according to the Wall Street Journal account. "We'd love to have more women moving up faster," he said. "But they've got to make the tough choices and know the consequences of each one."
It may be that some of his comments were pulled out of context that would have made them seem a little less damning, and it also may be that he is speaking the mind of what many in the workplace (women and men) actually think. In other words saying what is real, not what would be ideal.

But if you were having to defend a discriminatory failure to promote because of gender case brought by a female executive who has taken one or more parental leaves, you would not feel grand about having these words standing as fairly large hurdles to overcome.


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Friday, July 17, 2009

EFCA --- Compromise a Done Deal?

The New York Times, Democrats Cut Labor Provision Unions Sought, is reporting that a compromise that drops card check in return for 5 day quickie elections now has the support of 60 senators, enough to ensure passage. Although all details are not being released, the hint is that binding arbitration is still included and there may also be equal access provisions to allow unions to campaign on an employer's premises.

If this pans out, it will be by far the most dramatic change in labor law since I took Professor Jerre Williams labor law course at the University of Texas Law School in the fall of 1973. And if it does include binding arbitration for first contracts, it will be a total revamping of the underlying principles of American labor law. Unfortunately, the last part has received relatively little attention.

One of the most interesting aspects is the immediate reaction of some from organized labor. Jonathan Tasini, who is a passionate advocate for employees at his Working Life blog is disgusted:
"Card check" was the the thing that the bill was about--or so we heard for lo these many months. Now, it's left to the labor movement to explain why what will be left is good enough. That will be an interesting exercise.

We could also admit two things. One, when it comes right down to it, the kind of people labor supports in the Democratic Party are not reliable when it comes down to a fight-or-die moment for workers. Second, the strategy to pass the bill was an insiders game that never engaged the public, partly because we left the campaign in the hands of some people who are entirely clueless about talking to anyone but themselves.

Another option is for some people in the labor movement to decide that maybe it's worth saying, "to hell with you all" and come up with a better organizing and political strategy that does not rest on relying on people who will sell us out in a heart beat.
So Much for the 'Card Check Bill.'

More interesting to me was a 'tweet' from SEIU President Andy Stern, "we expect a vote in the bill or by amendment on majority sign-up in both houses of Congress." EFCA Compromise? at TPM, which follows that "clearly this compromise won't go down without several spoons full of sugar. "

The fact that Stern, who clearly knows the political reality, is making such a comment brings out the cynical fear that what is happening is what many in the business community feared all along. Card check was a stalking horse all along. The rejection of card check is going to be pitched as standing up to organized labor, and to aid in that perception many in organized labor (who secretly are ecstatic with what now seems within their grasp) berate the Democrats for selling them out.

Feeling victory based on the outcry of their opponents, many in the business community whose opposition was focused primarily on the card check provision will think that their mission has been accomplished and turn to other matters.

And almost under the radar, American labor law will be fundamentally changed.

The other thing that adds fuel to that thought is organized labor's desire to have a vote this month. Senate leaders are apparently of the opinion that it can't be done until September. (I am not quite sure why the Senate would want to undergo two more months of battering on this issue, because if they think its been hot up till now, they have not seen anything yet.) If no vote is scheduled until September then it might all come unraveled even if on this particular day in July the votes are there.

Because this is literally about how the American workplace functions, all with an interest, should stay very much engaged.



You lead by example for the rest of the employment law bloggers, who are really just trying to be half as insightful as you are and muster up a third of your stamina!

May many more great posts follow--I'll certainly be reading!


Molly DiBianca
Delaware Employment Law Blog
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Thursday, July 16, 2009

Seven Years of Jottings. Why?

If on July 17, 2002 when I made my first post, I had a goal to blog until retirement, today would have marked the 1/2 way point, if not to retirement at least to the time when I reach my full social security retirement age. However, I had no goal and no real plan, just trying out a new and interesting technology. I chose to write about a topic I that I knew something about.

The "why" question is one I have asked on numerous occasions, and one I am sure my law partners over the years have asked as well, although I must say never directly of me.

In good blogging fashion, I will refer you to an excellent article by Cliff Tuttle at Pittsburgh Legal Back-Talk, Why Blog? 10.5 Good Reasons, which is what I would have hoped to have been wise enough to write, if I answered the question in full.

Two points, I would particularly emphasize, self-education and reinforcement of learning. A third that is implied if not explicit, is having my own research repository, which has proved to be helpful both to me and to my colleagues over the years.

I would also agree with Cliff that marketing by itself is not a sufficient reason.

As I noted in last year's posting on the 6th anniversary, the number of blogs focusing on labor and employment law is far more than the three I can think of that existed at the end of my first year. (The two others - George Lenard and Michael Fitzgibbon continue as well.) After my list of 49, by April of this year, the folks at Delaware Employment Law Blog, were able to come up with their Top 100 Employment Law Blogs, and I would guess that there have been new ones since that post.

For the future, I intend to continue blogging, maybe writing more about traditional labor law as I think that is going to be more relevant in the near future and returning to stories of MDV's which for some reason seems to have lagged of late. (My posting, not the verdicts themselves.)

For those who have stopped in at some point during the last seven years, thanks.

Mr. Fox:

Thank you for posting about my article on blogging. I have received a lot of positive feedback on "Why Blog?" which has been gratifying. It has also reinforced my resolve to keep doing it and to do it well.

I don't have an employment law blog on my blogroll at present, so I am adding yours. I read the blogs on the Pittsburgh Legal Back Talk blogroll frequently and have been known to feature them in my posts.

Cliff Tuttle
Michael, thanks for the thoughtful post. I definitely agree with the "repository" reason. More often than not, I post to record my understanding of an area of law at the peak of my understanding. On numerous occasions, I have searched my own blog to refresh my recollection of the law. And the reinforcement of learning is another powerful reason to blog. In short, I think blogging makes you a better lawyer.
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Wednesday, July 15, 2009

Not Much Posting, But Still Talking

Posting has been light of late, but speaking events continue no matter what.

For the rest of the month you can catch me at the Texas Association of Business and SHRM State Council 2009 Employment Relations Symposium. More political talk, The Obama Labor & Employment Agenda. Biggest news, so far labor & employment issues have not really been very high on President Obama's agenda. Not to say that there isn't a lot to talk about though.

And next week, I move to internet as a participant on an ABA panel, Understanding the Legal Issues Surrounding the Social Networking Websites that Teenagers and Employees Love.

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Wednesday, July 08, 2009

Two HR Giants Merge

There are not many (if any) HR consulting firms larger than Towers Perrin and Watson Wyatt so their merger as reported at the SHRM website, Consulting Giants Watson Wyatt and Towers Perrin Merge, is pretty big news for those who use or would consider using either of these groups.

The combined firm, to be known as Towers Watson & Co., would have approximately 14,000 employees and revenues of nearly $3 billion.

For those who wonder about who is taking who, while Towers get's the first name, the new CEO will be John Haley, the current CEO of Watson Wyatt.

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