Democrats’ victory might bring changes in employment laws

The election of Barack Obama and the addition of at least five Democratic seats in the Senate on Tuesday, Nov. 4, put Democrats within striking distance of several major changes in employment laws affecting the trucking industry, including a measure that would make it much easier for labor unions to gain a foothold in a company.

The Employee Free Choice Act, which passed the House of Representatives in 2007 on a party-line vote and had the support of all Democrats in the Senate, would require the certification of a union at a non-union company if the union obtains a card check of a majority of employees in the bargaining group. Opponents have raised numerous objections, arguing especially that denying employees the right to a secret ballot would lead to intimidation by union sympathizers.

Despite support from a majority in both houses of Congress, the Employee Free Choice Act had no chance of becoming law. Democrats in the Senate were unable to gain the necessary 60 votes to kill a filibuster, and President Bush would have vetoed the legislation anyway if Congress had managed to pass it.

Now Republicans have lost one “firewall” – the presidency – and have a much smaller margin for enforcing a filibuster. But Republicans apparently will deny Democrats the all-important 60-vote threshold. As of this morning, Nov. 5, Republican incumbents are leading each of the four remaining races, although incument Republican Sen. Norm Coleman leads Democrat Al Franken by less than 600 votes in Minnesota. Democrats would have to win all four Senate races to reach 60.

President-elect Obama sponsored another bill – the Independent Contractor Proper Classification Act – that would authorize the Treasury Department to issue new criteria for determining independent contractor classification. Whistleblower protections would be imposed to encourage disgruntled owner-operators to contest classification, and the Internal Revenue Service would adjudicate the disputes. The safe harbor provisions allowing carriers to rely upon industry standards would be repealed. That legislation did not have the broad-based support of the Employee Free Choice Act, however, and did not make it past the Senate Finance Committee.

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In addition to changes in employment law, an Obama administration may have the opportunity to reconsider some major safety regulations regarding motor carriers. For example, regulations concerning electronic onboard recorders have yet to go to the White House for review, so the chances for approval before the Bush administration departs are dwindling. Also, while approval of new hours-of-service rules before Obama takes office appears likely, the new administration may have opportunities to make changes if the federal appeals court once again sends the regulations back to the Federal Motor Carrier Safety Administration.