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October 17, 2008
Where Do Obama and McCain Stand on Pay Equity, Employment Law?
A recent SHRM webcast took a look at where the presidential candidates stand on civil rights, pay equity and organized labor issues.

Michael Layman, Manager of Labor and Employment from SHRM's government affairs office discussed a handful of bills that would impact the workplace--and where the candidates stood on these bills--in the "Election 2008: Labor and Employment" webcast. The webcast was part of SHRM's GOTV (Get Out the Vote) Webcast Series, aimed at offering a detailed look at each presidential candidate's policy positions on subjects that dominate the national agenda.

Layman noted that a comparison between Barack Obama and John McCain in the area of labor and employment law reveals "stark differences" between the two candidates. Here is a summary of the bills Layman discussed, along with the candidates' stances on each.

Employee Free Choice Act (HR 800/S 1041)

What is it? This bill would amend the National Labor Relations Act (NLRA) to change procedures under which employees choose to join or not to join a union. Among its provisions, it would require the National Labor Relations Board (NLRB) to certify a union if 50 percent-plus-one of the relevant collective bargaining unit signs cards in support of union. In other words, it allows unions to bypass secret ballot elections.

The bill passed the House, but the Senate failed to give the 60 votes necessary to consider HR 800 in June 2007 (51-48 vote). There hasn't been any more news on the legislation since last summer. However, it is likely to be a priority of Congress next year, Layman says.

Where do the candidates stand? McCain voted against the bill (in a cloture vote that would have allowed the Senate to consider the bill) while Obama voted in support of the legislation and is actually a cosponsor of S 1041. In fact, Obama has made his desire for the bill's passage one of his issues on the campaign trail, according to Layman.

RESPECT Act (S 969/HR 1644)

What is it? RESPECT stands for "Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers." This bill would amend the NLRA to change definition of "supervisor." Specifically, it would take out the terms "assign" and "responsibility to direct" from the NLRA's duties associated with a supervisor. The legislation stipulates that an employee cannot be classified as a 'supervisor' unless the employee engages in managerial duties "for a majority of the individual's worktime." In sum, if such employees no longer qualified as supervisors, they would be covered under the NLRA and could join a union.

The RESPECT Act was approved by House Committee on Education and Labor in September 2007, but has not been considered in the Senate.

Where do the candidates stand? As with the Employee Free Choice Act, Obama is a cosponsor of the Senate version (S 969) of this bill. McCain, however, has taken no public position on the legislation.

Employment Non-Discrimination Act (HR 3685)

What is it? This bill would amend the Civil Rights Act of 1964 to prohibit discrimination in employment on the basis of an individual's sexual orientation. Among its provisions, it would require employers to provide reasonable access to adequate facilities that are not inconsistent with the employee's identified gender. It would exempt religious organizations and educational institutions supported or managed by a religious organization which has as its primary purpose the spreading of a particular religion.

The legislation was passed by House in November 2007 by a substantial margin, but has not been considered in Senate.

Where do the candidates stand?Although the candidates have not had the opportunity to vote on the legislation, Obama's website states that he will "pass the Employee Non-Discrimination Act to prohibit discrimination based on sexual orientation or gender identity or expression."

Meanwhile, in an interview, McCain stated: "I support the concept of non-discrimination in hiring for gay and lesbian people. However, we need to make sure legislation doesn't lead to a flood of frivolous lawsuits or infringe on religious institutions." Layman concluded that this quotation did not indicate support of this specific legislation.

Ledbetter Fair Pay Act (S 1843/HR 2831)

What is it? This legislation is an effort to overturn Supreme Court's May 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. The plaintiff, Lilly Ledbetter, had discovered that she was being paid considerably less by Goodyear Tire & Rubber for her supervisory job than men with the same job. When she sued, though, Justices ruled that she was too late: Under federal civil rights law, they said, she had only a short period after the employer's original discriminatory pay decision in which to sue.

This legislation, if enacted, would institute a "Paycheck Rule", under which the time limit for filing a charge restarts upon the receipt of each successive paycheck. The time frame would never run out and wouldn't begin until employee left the company, according to Layman. The bill would require employees to bring claims of wage discrimination within 180 days (if employee's home state has no equal employment agency) or 300 days (if it does have an equal employment agency) of the alleged action.

Among other provisions, the bill would allow family members (e.g., spouse) of employees and others "affected by" alleged discrimination to file a claim.

HR 2831 passed the House in July 2008. As with the Employee Free Choice Act, the Senate failed to get 60 votes necessary to consider the law in April 2008 (56-42 vote).

Where do the candidates stand?Obama's support of the bill is clear: he voted in support of it in the Senate, he is a cosponsor of the bill, and he states that he intends to pass it on his website. Ms. Ledbetter herself has appeared in one of Obama's commercials, and his campaign has given the bill lots of attention, Layman says. McCain, meanwhile, was absent during cloture vote on S 1843, and his stance on the legislation is unclear.

Paycheck Fairness Act (S 766/HR 1338)

What is it? This legislation would require employers to affirmatively demonstrate that a pay differential is not based on gender. Significantly, it would facilitate class action lawsuits by automatically including employees as part of a class action, unless an employee specifically opts-out. By contrast, the current process is that an employee must opt in to be included in a wage discrimination class action. Further, it would allow for unlimited compensatory and punitive damages for private-sector employees--even in cases where no intent was established/demonstrated by employer.

Where do the candidates stand? Obama is a cosponsor of S 766. McCain has taken no public opinion on the legislation.

Meanwhile, Layman also discussed the Americans with Disabilities Amendments Act (ADAAA) which was recently signed into law by President Bush and is effective on January 1, 2009.

Under the legislation (S 3406), the definition of a disability remains the same: a physical or mental impairment that substantially limits one or more major life activities. However, the new law changes the meaning of major life activity, which now includes but is not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

The law also stipulates that operation of a major bodily function (e.g., immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions) is considered to be a major life activity.

When it came to the ADAAA, there was actually consensus between the two candidates, as both McCain and Obama were co-sponsors of the legislation and supported it in the Senate vote.

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