The election of Barack Obama, combined with Democratic gains in both houses of Congress, brings with it the likelihood of employment law changes favored by the President-Elect.

One example is the Employee Free Choice Act (EFCA). The EFCA, commonly known as the card check law, will change the process for unionizing workplaces, easing the path to unionization. Traditionally, employees have held a secret vote on whether to unionize. Under this existing system, individual employee decisions are anonymous. The EFCA would eliminate the secret ballot, replacing it with a card check system. Under the card check system, if 50% or more of employees sign cards, the workplace will be unionized without a vote by all employees.

The EFCA has several likely effects. First, the decision to unionize could be initiated by the union, not the workers. Workers who are not asked by the union to participate in the card check have no say in the decision. The proposed law also increases penalties for employers who commit unfair labor practices during the unionization process. In addition, without secret ballots, workers who do not support the decision to unionize might be subjected to harassment and retaliation by co-workers.

Employers should also anticipate expansion of the Family and Medical Leave Act (FMLA). Currently, employers are not covered by the FMLA unless they have at least 50 employees. It has been reported that this threshold will be reduced to 25 employees. FMLA qualifying reasons for an employee's absence from work are also expected to change. Potential changes include requiring FMLA leave for workers caring for elderly parents, parents participating in their children's school activities, and employees who need time off to address domestic violence and sexual assault issues. In addition, it has been reported that the FMLA may be expanded to provide leave for employees who want to provide care for an otherwise qualifying reason to individuals who have lived with them for six months or more.

Another proposal that is likely to become law is the Employment Non Discrimination Act. This Act, which has been proposed previously but not enacted, would prevent employment discrimination or harassment based on actual or perceived sexual orientation or gender identity. A previous proposal, H.R. 3685, passed the House of Representatives on November 7, 2007, but was never voted on by the Senate. President-Elect Obama has indicated his support for this law. It is possible it may be enacted without the proposed protections for transgendered people.

Both the incoming Presidential administration and congressional leaders have also indicated support for increasing the federal minimum wage. The President-Elect has proposed an increase to $9.50 an hour by 2011.

There are other potential legal changes that would affect employers, including implementation of the much discussed health care proposals. We will update you on any new or amended employment laws as they are enacted.