Written in late 2009 when the EFCA was under consideration.

The EFCA is a legitimate cause for concern among employers and HR professionals, but we need to stop acting as though it is the apocalypse.

I am convinced that the worries about the EFCA are exaggerated.  Be concerned, yes, but let’s not blow the implications out of proportion.  As it is currently drafted, EFCA would be problematic, but it will pose much less for employers to worry about after the inevitable political compromise.   The employers’ lobby is doing just what it needs to do in order to make sure that the law does not pass as proposed, but, in the end, I suspect the EFCA will have little impact on unionization rates.

The proposed bill provides for:

* Certification if a majority of the bargaining unit sign cards without the employer being able to demand an election;

* Forced arbitration after 120 days of negotiating a first contract;

* Priority processing of ULP allegations against employers + greater penalties.

I would expect that the final bill will contain provisions that are much less onerous.  Let me address the three primary changes below:

I) Representation Based Upon Signed Authorization Cards:

First, I can’t imagine that the final bill will indicate a simple majority, but rather, it will require a percentage between 60% and 80% of signed cards to certify the union.

Second, currently, unions can entice employees to sign cards under the guise of “this will allow a vote.”  With the cards having more meaning, there is no doubt that employers will be able to rally against employees signing cards in a politically correct way.  From the day it passes, posters will be up saying “Don’t sign away your rights - you may never get them back.”  Ironically, Unions will have more trouble getting cards signed if the law passes.

II) Forced arbitration after 120 days:

As the EFCA is currently drafted, the provision regarding forced arbitration is the most troubling.  Ultimately, I suspect that this provision will die long before it comes to a vote of the full Congress.   I could easily see that there will be a provision that requires some form of arbitration and/or implementation of an initial contract after a period of time.

We need to face the reality that many employers historically delayed  first contracts simply to delay the impact of the Union.   Ask any labor  attorney - privately they will tell you that ULPs are filed and negotiations are stalled to run out the clock on the first year and/or the Union support dissolves.  If these provisions get passed, the law will pay us all back for the sins of a few.

III) Priority investigation of allegations and additional fines and penalties if employers are found to have violated the law:

This will happen, but I suppose that being hit with fines and penalties for violating the law is not something that unusual.  If we are going to argue against this, then I want the money back from the fine I paid 15 years ago for speeding on the New Jersey Turnpike - I could have argued I was rushing to a contract negotiations somewhere.

The key for employers is to keep communicating with your employees.  Unions are not going to pop up simply because of a change in the law.  If you treat your employees with dignity and respect, you are unlikely to be a target whether the EFCA passes or not.