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Expect changes in labor and employment law.

Corporate America can expect significant changes in the current framework of employer-employee relations. Here is a brief synopsis of what to expect.

The country is facing a Democratic administration for the first time in 12 years. The change in power promises many changes in employment and labor laws, not the least of which will be changes in personnel and outlook at the Dept. of Justice, the Equal Employment Opportunity Commission (EEOC), the U.S. Commission on Civil Rights, the National Labor Realtions Board, the Dept. of Labor and the federal judiciary.

Additionally, the new administration, together with a Democratic Congress, has promised many changes in the legal framework governing employer-employee relationships.

Striker Replacement

Under a 1938 Supreme Court decision, an employer may lawfully replace economic strikers with permanent replacements in order to carry on its business during a strike as long as the replacements are offered terms that are not better than the last offer made to the strikers. The strikers have no automatic right to reinstatement at the end of the strike, but may be called back to work only as needed to replace the replacements.

This issue became a rallying cry for organized labor because of the Caterpillar strike. There, the employer started to hire permanent replacements and thus ended a five-month strike by the United Auto Workers.

Legislation to change existing law, titled the "Workplace Fairness Act," has become the principal legislative effort of organized labor. The legislation, as proposed last term, would prohibit an employer from hiring permanent replacements during a strike. An employer would still be able to hire temporary replacements, but would be required to reinstate the strikers when they decide to return.

The proposal, which Senate Republicans have threatened to filibuster, would alter the economic balance established over the last 55 years. Knowing they could strike without fear of being replaced, unionized employees would have little incentive to negotiate and compromise. As a candidate, President Clinton promised to sign the legislation.

Civil Rights Act

The 1991 Civil Rights Act was passed only after a great deal of compromise among the president, the congressional Republicans and the Democrats, and only after the Clarence Thomas hearings brought issues of sexual harassment to prime-time television. As passed, the act changed elements of proving a civil rights case, making it easier to prove discrimination, and increased damages available to the plaintiff, making it more lucrative to claim discrimination.

Three issues will likely be revisited with the support of President Clinton:

* the issue of retroactivity;

* the limitation of punitive and compensatory damages;

* extension of the Civil Rights Act protection to gay and lesbian workers.

Retroactivity--When Congress passed the Civil Rights Act of 1991, it did not specifically address the issue of whether the new act should apply retroactively to cases pending. There have been many cases, too numerous to mention here, holding that the act should not be retroactively applied and cases holding it should be retroactively applied. Recently, the Supreme Court declined to take one case presented to it. However, there will be others presented to it this term.

Thus far, the U.S. Dept. of Justice and the EEOC have taken the position that the act is not to be retroactively applied. If any of the pending are cases heard by the Supreme Court, the Dept. of Justice can be expected to argue that the act should be retroactively applied.

Limitations on Damages--The 1991 Civil Rights Act permitted awards of punitive and compensatory damages against employers for all violations of the act. Previously, such awards were only available under specific statutes. As a compromise, there were limits placed on awards of punitive and compensatory damages (depending on the size of the employer) up to a maximum of $300,000.

The Equal Remedies Act has been proposed to lift the damage limitation. As a candidate, Clinton stated he supported the legislation. (The Equal Remedies Act could raise the obvious issue of whether it is to be applied retroactively.)

Gay/Lesbian Protection--Federal Civil Rights Acts do not protect a person from discrimination in employment as a result of the person's sexual preference. Although persons with the HIV virus or with AIDS are protected by the Americans with Disabilities Act, gays and lesbians are not. (Some states and some municipalities have prohibited discrimation in employment based on sexual preference.)

Clinton has urged that the Civil Rights Act be expanded to protect gays and lesbians from discrimination in employment. He also has proposed strengthening enforcement of the ADA with respect to HIV and AIDS-related discrimination.

Other Changes

In addition to the major issues already discussed here, corporate managers also should be looking ahead to changes that could affect how you manage your business.

OSHA Reform--Under legislation proposed last year, employers would be required to set up joint labor-management safety committees, expand employee safety and training programs, and expedite the process of safety "standard-setting." President Bush opposed the legislation (called the Comprehensive Safety and Health Reform Bill) and so it did not pass. Clinton has stated he would sign the legislation.

Mandatory Family and Medical Leaves--In a well-publicized veto last year, President Bush refused to sign the Family and Medical Leave Act, which required that employers grant employees "family" leaves of up to 10 weeks in a two-year period, and medical leaves of up to 15 weeks in a one-year period. The act would initially cover employers with 50 or more employees within a 75-mile radius of the employer's facility. As a candidate, Clinton promised to sign the legislation.

Employee Training--President Clinton has proposed a comprehensive lifetime training program that mandates employer expenditures on training. Under his proposal, employers would be required to spend 1.5% of their payroll on continuing education and training of employees. The education and training must be made available to all employees. The proposal adopts the familiar "play or pay" system under which an employer that does not make the training or education available in the required amounts would be required to "contribute" to a national training fund.

Minimum Wage--President Clinton has proposed indexing the minimum wage, currently $4.25 per hour, to keep pace with inflation. If passed, employers with minimum wage workers would have to constantly monitor Dept. of Labor bulletins on minimum wage.

Right-to-Work Laws--Under current federal labor laws, a state may enact legislation permitting employees to continue working without being required to join a union. These are the so-called right-to-work laws.

President Clinton supports repeal of the provision of federal law, which permits the states to enact right-to-work laws.

In conclusion, President Bill Clinton promises to change the current framework of employer-employee relations. These changes will likely increase union organizing activity and increase the power of unions where they have already organized.

They will also increase the federal regulation of employment and make mandatory practices in which some employers voluntarily engage.
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Title Annotation:Management Report: Labor & Employment
Author:Kinsella, Daniel V.
Publication:Modern Casting
Date:Apr 1, 1993
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