Waynes World - December 2008
CONGRESS MAKES IT EVEN EASIER TO GET DISABILITY PROTECTION, AND...
THE IMPACT OF OBAMA'S
WIN ON TRUCKING
by Wayne Schooling
Barack Obama’s win was historic – and big! But not since the election of Franklin Roosevelt in 1932 was the stage so set for change by the party not currently in control of the presidency. That is, only once since World War II has the current party in power retained the nation’s highest power after eight years in control. The democrats also had the advantages of an unpopular war, an unpopular President, and most importantly, the greatest financial crisis to hit the country since the Great Depression. This is not to downplay the significance of the victory – the President-Elect ran a fantastic campaign. In fact, it was the first time since 1964 that a Democratic candidate for president has won with more than 50% of the vote.
As of the date this article was written, the Democrats appear to have increased their majority in the Senate as well. Three seats are still unresolved, but Republicans lead in all three. The Democrats have also increased their majority in the House of Representatives from 235 to at least 254, with several races still undecided. Among the nation’s governors, Democrats apparently increased their majority from 28 to 29. While the Democratic majorities in both houses of Congress are similar to that enjoyed by President Clinton during his first term, they are not yet at the “filibuster-proof” 60-vote majority necessary to invoke closure and shut off the debate of bills to pass through the Senate. In 2008, virtually all Democrats in Congress voted in support of all the pro-labor legislation, including the Employee Free Choice Act (known as the card-check bill).
The “card check” bill is just another reason NOT to have employee drivers. The proposed law has been vigorously pushed by labor. The key provision of the bill will allow unions to organize companies if a majority of employees simply sign union membership cards, rather then voting in a secret ballot. Business organizations charge that such a change would worsen existing labor-management relations and kill jobs. President-Elect Barack Obama has said he would sign the bill if delivered to his desk.
So, you ask, “What’s wrong with this?” Well, everything. Basically, this bill will take away every employee’s free choice. Also, consider this: every small business starts with one owner. That owner works hard and then realizes that he needs to hire another driver, then they both work hard, then they hire another driver, and so on. Pretty soon you have a profitable non-union company. Under this law, all the drivers have to do is sign a card and BINGO they are all union drivers. Profits to the company go down because of added costs and then the owner has to lay everyone off and go back to being a sole proprietor. Small business loses.
The early word from Washington D.C. is somewhat encouraging. Obama’s election could lead to more transportation spending, however the cost will be more regulations on trucking. And with the White House and Congress supporting more labor-friendly legislation, the climate for business will be highly unfavorable. Remember, earlier in the year (May 2008) I warned everyone that Barack Obama filed a senate bill (S.2044) regarding independent contractors. Obama’s bill would amend the Revenue Act of 1978 in three key areas: 1) It would require the employers to treat workers misclassified as independent contractors as employees for tax purposes; 2) It would repeal a ban on Treasury regulations or revenue rulings on all employee and independent contractor classification issues; and 3) It would remove the defense of “Industry Practice” as a viable justification for misclassifying workers.
The bill would also enable workers to petition the Treasury Secretary for clarification of their status and it would prohibit an employer from retaliating against any worker filing these petitions. Language describing the petition process would be added to the workplace postings regarding employment rights. Finally, the bill would also require any employer hiring an “independent contractor” to provide the following notice to every individual: “Each employer shall notify any individual who is hired as an independent contractor of their Federal tax obligations as an independent contractor, the labor and employment law protections that do not apply to independent contractors, and the right of such independent contractors to seek a status determination from the IRS.”
Another piece of legislation that will be effective January 1, 2009, is an updated version of the Americans with Disabilities Act called the ADA Amendments Act (ADAAA) which basically changes the way that the term “disability” can be interpreted. The sponsors of these changes felt that the ADA was not fulfilling its original intent, as too many people were losing cases on the basis they could not establish their condition was serious enough to constitute a “disability” under the ADA. So they decided to make it even easier to get disability protection – you won’t even have to prove that you actually have a disability.
Under the ADAAA, an employee with an impairment is entitled to protection if the impairment “materially restricts” their ability to engage in just one major life activity. Any individual who alleges that they were simply regarded as having an impairment need only show that they were regarded as having an impairment and that an employment decision was made based on the perception that the employee has an impairment. This change will undoubtedly open a can of worms, as just about anyone can claim they have some sort of “disability” and need special treatment.
~ NTA remains a name you can trust. Our website (www.ntassoc.com) is your official U.S. DOT Internet Training Site and we are administrators of a Nationally Accredited Drug and Alcohol Program. If you have any questions, call me at (562) 279-0557 or send me an e-mail to wayne@ntassoc.com. Until next month, “Drive Safe – Drive Smart!”