Before Democrats had the chance to formally introduce the EFCA during this Congressional term, the Secret Ballot Protection Act (SBPA) was introduced in both the Senate and the House of Representatives.

If passed, the SBPA will guarantee employers the right to ask for a secret ballot election when workers are deciding whether to unionize.

Currently, elections are held if 30% of employees sign cards saying they want to unionize. The EFCA would let unions take power as long as a majority of employees sign those cards.

Who’s more likely to win the fight? Experts say the EFCA has a better shot of passing, given the Democrats’ majority in Congress and the fact that President Obama has made the bill one of his priorities.

However, the presence of the SBPA could convince the EFCA’s supporters to compromise.

We’ll keep you posted.

If passed, the EFCA will increase the power of unions in the workplace. Here’s a rundown of its main provisions:

1. Card check authorization – Under the EFCA, unions can be approved as long as more than 50% of employees sign authorization cards. In other words, no more secret ballots — some say that might allow employees to be bullied by union representatives.
2. Mandatory arbitration – If a union is certified through a card check, employers will have 10 days to start bargaining with the union. If an agreement isn’t reached in 120 days, the negotiation will be referred to a federal arbitrator who’ll decide any contract issues that still aren’t agreed on — such as pay, benefits, hours, etc. Negotiations often take more than 120 days — therefore, arbitrators will likely have greater influence under the EFCA than they currently do.
3. Increased penalties – Currently, employers are only held liable for back pay if they’re found to have unlawfully fired pro-union employees. The EFCA would add liquidated damages up to two times an employee’s back pay, as well as a $20,000 penalty if a court finds a violation was willful or repetitive.

Supporters of the EFCA are confident the bill will be successful.

Last year, the EFCA passed the House, but failed to gather 60 supporters to block the filibuster in the Senate. Some experts say the increased Democrat majority and President Obama’s influence make the bill likely to pass.

We’ll keep you posted.

The Employee Free Choice Act is one of the President-elect’s top legislative priorities for the upcoming term — and an increased Democratic Congressional majority could make its passage likely. What does it mean for employers, and what should HR do now to prepare?

The EFCA was passed in March by the House of Representatives but blocked by a Republican-led filibuster in the Senate. With Barack Obama’s presidency and more Democrats in the Senate, the bill (or at least a version of it) could be pushed through early next year.

The main provisions in the bill’s current language:

1. Card check authorization

For unions to be authorized now, they need signed cards from at least 30% of the employees they’re looking to organize. Then, the National Labor Relations Board holds a secret ballot election to see if a majority of employees want to be unionized.

But under the EFCA, unions can be approved as long as more than 50% of employees sign authorization cards. In other words, no more secret ballots — which could open employees up to more pressure from union representatives.

2. Mandatory arbitration

If a union is certified through a card check, employers will have 10 days to start bargaining with the union. If an agreement isn’t reached in 120 days, the negotiation will be referred to a federal arbitrator who’ll decide any contract issues that still aren’t agreed on — such as pay, benefits, hours, etc.

As many unionized employers can attest to, these things often take more than 120 days to negotiate. Therefore, arbitrators will likely have greater influence under the EFCA than they currently do.

3. Increased penalties

Currently, employers are only held liable for back pay if they’re found to have unlawfully fired pro-union employees. The EFCA would add liquidated damages up to two times an employee’s back pay, as well as a $20,000 penalty if a court finds a violation was willful or repetitive.

What should HR do now?

Here are some steps employers can take to prevent potential problems if the EFCA becomes law:

• Educate supervisors about the dangers of retaliating or discriminating against pro-union employees.
• Resolve any unsolved employee issues and complaints that could make a union look more appealing to your workers.
• Use new-hire orientation to explain the advantages of your company’s union-free status. Talking about the drawbacks of unionization with current employees before organization attempts are made can be helpful, too, and
• Make sure non-solicitation policies are in order, so you can prevent third parties from coming on-site to drum up support for a union.

Now that the election’s over, experts are focusing on what legislative changes can be expected under the new president. HR pros will be watching a few big items on Obama’s agenda.

To promote the new administration’s plan, the Office of the President-Elect has set up a Web site to outline key initiatives.

Several of the proposals, if successful, will have a huge impact on HR:

1. More power to unions

Obama is a co-sponsor of the Employee Free Choice Act (EFCA), a bill which could greatly expand the power of labor unions. Experts say the EFCA has a good chance of passing with Obama as president.

Under current regs, employers can require a union to hold a secret ballot vote before being certified by the National Labor Relations Board. The EFCA, however, would allow certification of a union if a majority of employees sign authorization cards.

Opponents of the bill claim the elimination of the secret ballot will diminish workers’ rights to freely decide whether they want to be represented by a union. They argue the card system leaves employees open to greater pressure from both sides.

2. Increased FMLA coverage

The President-elect has proposed several expansions to the Family and Medical Leave Act, including:

• expanding coverage requirements to include companies with at least 25 employees
• granting employees leave to address domestic violence and sexual assault, and
• giving parents 24 hours of leave a year to participate in their children’s academic activities.

3. Expanded paid leave

Several cities and states have passed or proposed laws giving workers the right to paid family and medical leave. Obama plans to set aside a $1.5 billion fund to help companies and governments with the cost of implementing paid leave programs.

Also in the works is a proposal requiring all employers to give full-time workers seven paid sick days a year.

4. More protected classes for discrimination cases

Obama also supports the Employment Non-Discrimination Act (ENDA), which was passed in the House of Representatives last year but has yet to be voted on in the Senate.

ENDA would prohibit companies from discriminating on the basis of sexual orientation.

5. Greater protection against pay bias

The Ledbetter Fair Pay Act was drafted in response to the Supreme Court’s ruling in Ledbetter v. Goodyear Tire & Rubber. Ledbetter sued Goodyear, claiming she was paid less than men doing the same job for more than 20 years.

The case was thrown out because the law says she had to sue within 180 days after the biased pay decision was made — i.e., when she was hired. The new law would give plaintiffs 180 days from the time they learn about possible discrimination.

Obama supports the law, and experts say it’s likely to pass with him in the White House and a greater Democratic majority in Congress.

Most states have a clearly defined “employment at will” doctrine – that is, unless an employee is under a contract, he or she can be terminated for any (non-discriminatory) reason, or no reason at all.

But in Colorado, a coalition led by labor groups is pushing to change the state’s constitution to require employers to have a justifiable reason before letting anyone go. Practically speaking, companies rarely fire someone for no reason, but a regulation like this would give them a much bigger burden, and employees would have a lot more opportunities to sue.

Does it have a chance? Most experts say no, since the at-will relationship is pretty ingrained at this. Still, it’s the kind of thing that could rally a lot of popular support, and if it happens in one state, people elsewhere will take notice.

Right now, the coalition is trying to get the proposal onto the ballot in November. We’ll keep you posted if anything happens.

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