The arrival of President-elect Obama and a democratic congress in 2009 presents a unique moment in history for labor and employment law reform.  The Obama administration is expected to support a variety of new labor and employment initiatives that will have profound consequences for American employers.   The centerpiece of the incoming administration’s labor reforms will likely be the Employee Free Choice Act (“EFCA”).  The EFCA will be the most monumental piece of legislation impacting the American workplace, perhaps since the enactment of the National Labor Relations Act (“NLRA”) in 1935.  In its current form, the EFCA will make it extremely difficult for employers who do not take immediate, sustained and effective action now to remain union free.  It will result in the creation of a whole new government bureaucracy, and it could result in large segments of the workforce that have not historically been infiltrated by unions to become predominated by unions.

The EFCA is a top priority for organized labor in 2009.  Previously sponsored by President–elect Obama and Vice President-elect Biden, it was passed by the House of Representatives in March 2007.  While the EFCA had enough votes to pass the Senate, there were not enough votes to break a Republican led filibuster.  Given the outcome of the recent U.S. presidential election, and with democrats gaining seats in both the House and Senate, lawmakers will almost certainly pursue the EFCA for future enactment.

In its current form, the EFCA will amend the NLRA by adding certain provisions that do the exact opposite of what the EFCA’s title implies.  Namely, the EFCA will undermine employee free choice and pose other onerous burdens on employers.…

Continue Reading The Employee Free Choice Act: No Choice At All