President Obama was elected on his campaign theme of “Hope and Change.”  In regard to labor and employment law, it appears that he and his administration are about to make good on the second half of that campaign promise.  All indications are that the federal government is ramping up changes in labor law beneficial to employees and unions, along with “beefed up” enforcement of existing laws. 

While the unemployment rate in the private sector hovers around ten percent, the United States Department of Labor (along with the IRS) is busy hiring.  Specifically, the Department of Labor seeks to add about 200 investigators representing an increase of nearly $70 million dollars to its existing budget.  With the addition of the new health care law, $600 million dollars has been added to the budget of the IRS with nearly 100 of the proposed new hires to be devoted to cracking down on employers who improperly misclassify employees in regard to employment laws.  The IRS has stated that it will begin random audits in 2010 of around 6,000 U.S. employers concerning worker classification.

 In a review of the United States Department of Labor’s web site, one can find a video address of the Secretary of Labor, Ms. Hilda Solis, imploring workers to seek out assistance from the Department of Labor if they feel they have been improperly paid.  Strikingly, at the end of the very short video, she states that such assistance is available to employees “whether documented or not.”  Apparently, the administration is prepared to enforce the federal wage and hour laws against employers to the exclusion of federal immigration laws. 

On the union side of the ledger, the federal agency which enforces union related laws, the National Labor Relations Board (NLRB), is also poised to make a sharp left turn.  The Board consists of five members selected by the President and confirmed by the senate.  Tradition holds that the President selects three members from within his own party with the remaining two to be filled by the opposition party.  When President Obama took office, only two seats on the Board had been filled, one Democrat and one Republican.  When the confirmation of the three nominees proposed by President Obama became stalled in the Senate, President Obama used his recess appointment powers to appoint only the two Democrats to the Board, thus creating a blatant imbalance.  Furthermore, the two new board members selected by President Obama are lawyers having represented the AFL-CIO and the SEIU unions.  The SEIU union attorney, Mr. Craig Becker, is particularly left leaning in his views.  For example, despite the fact that the National Labor Relations Act specifically provides protection for employer-free speech in union elections, Mr. Becker has previously advocated that an employer should have no say whatsoever when it comes to union organizing of its employees. 

The newly constituted NLRB is expected to immediately focus its attention toward achieving the aims of President Obama and labor union leaders.  Although the Employee Free Choice Act (“Card Check”) has stalled in the Senate, the Board is expected to administratively reduce from 42 days down to approximately 10 days the time given to employers to campaign against a union in a union election.  It is also expected that the Board will overhaul its traditional voting process for union elections.  Currently the Board dispatches a government agent to set up a voting booth at the employer’s location for purposes of a secret ballot election.  The NLRB is now looking at creating an electronic voting service without direct supervision by a government official.  A request for information was just issued by the NLRB requesting certain employers to provide information concerning their ability to provide employees with computers and electronic mechanisms for meeting this goal.  It does not appear that the NLRB as currently constituted will have any qualms with the “individual attention” union organizers might pay to employees casting their electronic ballot outside of the presence of a government official.

 The foregoing description of the changes taking place at the United States Department of Labor and the National Labor Relations Board represent only the tip of the iceberg.  An employer serious about its bottom line will want to make sure it stays in contact with its labor and employment counsel in regard to both current and upcoming changes in law and enforcement by the United States Government.

For more information on this or any other labor and employment law topic, please contact Masud Labor Law Group at (989) 792-4499.

About the Author

Kraig M Schutter

Kraig M. Schutter is a partner with the Masud Labor Law Group.  He earned his law degree from Thomas M. Cooley Law School where he was awarded the Certificate of Merit in Labor Law.  He also obtained his Masters of the Law degree in labor law from Wayne State University Law School.  Kraig has vast experience consulting and representing clients in wage and hour concerns, union contract administration, grievance arbitrations, implementation and application of personnel policies, and compliance with the numerous federal and state labor and employment laws. 

This article is published by the Masud Labor Law Group, and is intended as general information only.  This article is not intended to provide legal advice or opinion, as such advice may only be given when related to specific fact situations.  Questions or comments concerning this article should be directed to the Masud Labor Law Group, 4449 Fashion Square Blvd., Ste. 1, Saginaw, Michigan, 48603, (989) 792-4499.  E-Mail:  ©Masud Labor Law Group 2010.  All rights reserved.  Reproduction of this article in whole or in part, without express permission from the Masud Labor Law Group is prohibited.


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