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Attorneys say new year bringing changes to labor and employment laws

As a new administration and Congress take over in Washington, some of Mississippi’s prominent labor and employment attorneys predict changes in employment law that will have impacts throughout the state and country. Among those, changes in the way labor unions are organized, disability determinations and revisions to the family leave act.

“Those are the big three pending changes,” says Wilson Eaton, an attorney with the Butler, Snow, Stevens, O’Mara & Cannada firm’s Gulfport office. “I think we can also expect the Obama administration to be active in OSHA regulations and new standards for safety that employers have to meet. I wouldn’t be surprised if we have more labor law changes, and from that we may see more jobs go overseas.”

Taylor Smith, an attorney with the Kullman firm’s Columbus office, shares that opinion.

“The probability is that we will certainly see changes in 2009,” he said. “The biggie is the Employee Free Choice Act. The new law will be drastic in that it does away with the right of employees to conduct a secret ballot on union organization. The name of the law – employee free choice – is a joke.”

This act, EFCA, requires the National Labor Relations Board to certify a union as an employee representative without a secret ballot election if 50 percent of employees plus one sign union cards.

“Now that the elections are over, many people believe Congress will make significant changes to the federal employment laws,” said Tommy Siler of the Phelps Dunbar law firm in Jackson. “As an example, the Employee Free Choice Act could potentially make an impact with Mississippi employers that may be huge and have an incredible impact on our ability to compete in the global market.”

Because Mississippi historically has a low percentage of unionized workplaces, Siler, Smith and Eaton think the state will probably have more companies affected.

Siler points out that, if passed, EFCA will affect all sizes of businesses that are protected by jurisdiction of the National Labor Relations Board. “An employer may go in one day and find he has a union because he may not know this effort is going on to put on a campaign,” he said.

Because the change will make it easier and less costly for unions to organize, Smith thinks unions will concentrate on smaller companies. He also feels rank and file employees may not know what they’re signing when asked to sign union cards.

“We’re meeting with front-line supervisors in anticipation of this law change,” he said. “These supervisors will have to constantly operate as though a union election is underway.”

The proposed changes also make it easier for a federal arbitrator to be called in to negotiate between the union and the employer. “It’s not something employers want. It’s not pretty,” Eaton says. “The arbitrator may ask the employer to produce books or spread sheets to prove he can’t pay union wages. All of that costs money that could be going to the employees.”

Eaton predicts that Mississippi’s most vulnerable employment sectors will be healthcare, steel plants and other heavy manufacturers. He’s currently working with healthcare clients in California who are facing these challenges.

Siler says employers will have to be on an anti-union campaign every day. “It will be one of the most significant changes in employer/employee relations since the 1930s or ‘20s,” he said. “Under the current law, if an employer loses an election, he then can bargain in good faith with the union. With the new law, if there’s no contract in 90 days, the matter must be submitted to federal mediators, who will come in and conduct binding arbitration.”

Smith points out that changes to the Family Leave Act are set to become effective Jan. 19 to clear up ambiguity in the existing law. He doesn’t think industry will be greatly affected.

Eaton, however, sees it as a fundamental change to how employers designate family leave. “Employers will have to send out notices and the consequences family leave will have,” he said. “It will be fairly easy to prove liability, and I believe it will bring a wave of lawsuits.”

Siler points out that the revised regulations will establish a fund through which employers, employees and the federal government share the costs of providing compensation during leave. Employees are required to pay insurance premiums for 12 months and must have worked for the same employers for 12 months to receive benefits.

“It will also be mandatory for all businesses with more than 50 employees, but companies with equivalent or better benefits would be able to choose to self insure,” he added.

Smith cites a little-known proposed law called the Lily Ledbetter Act that he thinks will pass this year. “This act changes the number of years an employee has to file a discrimination suit,” he said. “An employer could be sued for what they did 10 years ago even though they’ve corrected it.”

Contact MBJ contributing writer Lynn Lofton at llofton656@aol.com.

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