VOL. 110 | NO. 8 | Thursday, January 11, 1996
01/11 Law analys
A look back, a look ahead
By JEFF WEINTRAUB
The Daily News
In 1995, employers ran headlong into the pro-labor agenda of the President, the Secretary of Labor and the National Labor Relations Board. Governmental activism in the labor and employment area will continue this year. This article looks back at the significant labor and employment developments of 1995 and ahead to 1996.
Equal Employment Opportunity Commission
At the end of fiscal year 1995, the EEOC reported a record 100,000 pending charges, an 8.2 percent increase over 1994. This backlog of charges from 1995 will carry over to 1996, in light of the government shutdown. The number of available EEOC investigators has decreased 12.6 percent since 1989. To combat the case overload, EEOC has started to divide cases into three categories: cases which seem to be more promising, cases in which the agency will seek a response from the company before moving ahead and cases which the EEOC will dismiss without an investigation and issue a right-to-sue notice. We anticipate the EEOC will look for high-profile litigation opportunities in 1996, particularly in the American with Disabilities Act area.
The AFL-CIOs new president John Sweeney has declared that the labor movement is prepared to use several organizing methods and tactics such as mass demonstrations to strengthen labors voice and fight against employers and the Republican Congress. Sweeney also declared that unions will initiate corporate campaigns intended to apply pressure to employers through a variety of actions such as consumer boycotts, unfair labor practice filings, shareholder resolutions and media campaigns. Employers should expect more strikes as well as other creative tactics from labor organizations in 1996.
The National Labor Relations Board
In 1995, the board reduced its backlog of cases and eliminated delays through use of new case handling procedures. As of October 1995, the backlog was 366 cases, which is significantly lower than the 1,196 cases 10 years ago, while NLRB staffing has decreased substantially. As expected, the Clinton labor board took a very pro-union approach in 1995, issuing several rulings that expand the boards remedial options and restrict employer speech in representation elections. As discussed in our November 1995 newsletter, the board has been filing numerous cases for injunctive relief against employers, with a success rate of 89 percent. In Region 26, unfair labor practice filings increased in 1995, while representation petitions were down slightly.
Of great significance to employers is the Supreme Courts decision in McKennon, where the court decided that the discovery of employee misconduct after the filing of a lawsuit would not allow employers to escape liability for employment discrimination. The court did hold that employee misconduct could preclude reinstatement and would be relevant to the issue of damages. In another case, the court ruled that any racial classifications imposed by the federal government in affirmative action programs will be subject to the "strict scrutiny" standard of judicial review. This case dealt a blow to affirmative action proponents and will no doubt promote litigation over public sector affirmative action plans in 1996. In Curtiss-Wright, the court held that employers are free under the Employee Retirement Income Security Act to amend or terminate benefit plans as long as the employer has developed a procedure for amending the plan and has identified persons with authority to amend the plan. In Town & Country Electric Inc., the court held that union organizers who make application for employment are "employees" under the Labor Act and are thereby protected under federal labor law. This ruling is a clear victory for organized labor.
In 1996, the Supreme Court will issue a decision in a case concerning an amendment to the state constitution of Colorado that would ban preferences, quotas and claims of discrimination based on sexual orientation. This case may have important implications for employers, since the case could determine if homosexuals and bisexuals may be accorded protected status.
In 1995, several bills were proposed to increase the minimum wage. Because of election year pressures, we believe that the minimum wage may be modified in 1996. Also pending are bills to amend the Labor Act to permit employer-employee participation groups that do not engage in formal labor negotiations. In 1996, Congress will consider a bill requiring private sector employers to provide their employees with the option of taking compensatory time in lieu of overtime. Occupational Safety and Health Administration reform is also on the minds of many legislators. Workers compensation reform will remain a hot issue in Tennessee and elsewhere.
In 1995, compensation costs paid by U.S. private industry employers increased 2.6 percent. Salary increases have been steadily declining since the start of the 1990s, and average salary increases for 1996 are expected to remain stable at 3 to 4 percent. Corporate downsizing continues to place downward pressure on wages. The majority of private employers negotiating labor contracts in 1996 will provide low to moderate wage increases of less than 3.5 percent in the first year of their 1996 contracts. Employers should expect greater strike activity and pressure from labor organizations to increase wages in 1996.
In 1995, management was faced with a very pro-labor NLRB and a President courting organized labor. We expect that employers will have to deal with more of the same in 1996, given traditional election year posturing. As always, a pro-active approach by employers can pave the way for successful 1996 in the labor and employment areas.
Weintraub is senior partner with Weintraub, Robinson, Weintraub, Stock, Bennett, Ettingoff & Grisham, P.C. He represents management in all aspects of labor and employment relations.