Speaking late last year, Chamber of Commerce labor lobbyist Randy Johnson saw the future, and it looked grim. The Democratic president-elect promised to reinvigorate labor law enforcement. ("I do not view the labor movement as part of the problem," President Barack Obama said this morning at a White House reception. "To me it's part of the solution.") An emboldened Democratic Congress, flush with union money, stood ready to tee up a sweeping legislative agenda. "It is clear that by the end of four years," Johnson told Inc.com. "the landscape of the nation's employment laws will have significantly changed."
And so, yesterday, it began. With pens in hand, Obama signed his first bill into law, the Lilly Ledbetter Fair Pay Act of 2009.
By now you know the backstory: Ledbetter worked for 19 years as a supervisor at Goodrich Tire and Rubber, only to discover near the end of her career that she was earning 20 percent less than her male colleagues. She sued under the Civil Rights Act, but the Supreme Court rejected her claim, narrowly construing the law to limit the opportunity for redress to within six months after "a discrete
unlawful practice takes place." Civil rights advocates howled: how could Ledbetter have known that the her bosses were paying her less than the menfolk so soon after they had taken the decision?
Now it's the business community's turn to howl. In just a little more than a thousand words (pdf), Congress essentially overturned the Supreme Court's 47-page decision. The crux of the act is simply this: illegal wage bias (based on race, religion, sex, national origin, age, or disability) occurs "when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice." Now, if you've discriminated by denying someone a raise, then you're discriminating each time you cut the resulting check. And with each paycheck -- or benefits check -- the employee has six months to complain to the government.
Sounds draconian, but I detect a bit of hyperbole in the case against the Ledbetter Act. It's unlikely, for instance, to encourage tardy claims from "people who know all relevant facts and fail to exercise their rights for years or even decades," as the Chamber put it (pdf) in a letter to the Senate. In fact, the Ledbetter Act limits recovery of back pay under its provisions just to "two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge." Who would sit on knowledge of discrimination for a decade just to lose eight years of lost wages for the waiting? And given the practical hurdles that already make it difficult to prove discrimination, a tidal wave of "excessive litigation," as the NFIB warns, seems more theoretical than real.
For the unaware victim, the new law does conceivably open up to legal scrutiny management decisions made long ago. But isn't it possible that business has only itself to blame for that? For eight years conservative Republicans, with business' backing, have gleefully dismantled four decades of social compact. Even moderate Republicans -- the few that remain -- seem uneasy about this agenda. It's the kind of violence that can only beget more violence when the tables finally turn, as they did last November. Call it Newton's Third Law of Political Motion: for every action there is an equal and opposite reaction, however delayed.
As Johnson says, it's likely to get worse. Soon Congress may consider "card check," the bill that would allow workers to organize simply by collecting signatures from half the shop. Unions, newly confident but reeling from years of what they would probably call a hostile work environment, can almost taste a big victory.
Surely middle ground exists somewhere between management intimidation and union thuggery, but is anybody in any mood to compromise? At the moment, it doesn't look that way. When I asked the NFIB's Dan Danner about it last December, he said simply, "I think it's bad legislation."
Danner may be right about that. But if business isn't willing to give when the chips are down, why would the labor lobby negotiate when it has, at least for the moment, the advantage? And if labor wins, then where will business be?