One of the first stories I covered for Workforce Management was the nomination of John Roberts Jr. to the Supreme Court. My piece focused on how the conservative Roberts was likely to be an ally of business on the nation’s highest judicial body.

Corporate hopes were raised even higher when Roberts was tapped to be chief justice after the death of William Rehnquist. Adding to the excitement was the fact that Samuel Alito Jr., a staunch conservative, would replace the moderate Sandra Day O’Connor.

But a funny thing happened on the way to judicial nirvana for the business community. The conservative Roberts court began to act conservatively—according to the traditional definition of the word. By and large, being conservative means being opposed to drastic change and avoiding activism.

What this means is that the Supreme Court under Roberts looks at a statute, its legislative history and past rulings when making decisions.

“They don’t legislate from the bench, but rather they follow precedent,” says Ted Meyer, a Jones Day partner in Houston. “This is typical of a fairly conservative court. They follow the law.”

The results are sometimes favorable for employers. In the most controversial of the Roberts court employment law rulings, the justices split 5-4 along ideological lines to enforce a strict 180-day statute of limitations on pay discrimination suits. Roberts and Alito joined on a decision based on a strict interpretation of the law, a conservative trait.

But the Roberts court has also issued rulings that make it easier for employees to pursue retaliation claims. In its latest decision, a 7-2 majority held that a Civil War-era law encompasses retaliation even though it does not explicitly address such claims.

Known as Section 1981, it was established following the abolition of slavery to ensure that African-Americans were treated fairly in contracts. The law has a much longer statute of limitations than Title VII, a more restrictive provision of the Civil Rights Act of 1964. Section 1981 also provides unlimited damages.

Title VII caps damages, requires plaintiffs to file their cases within months of a discriminatory act and establishes a dispute resolution procedure through the Equal Employment Opportunity Commission.

The decision “allows an employment law plaintiff to do an end run around Title VII,” says Joel Rice, who is of counsel to Fisher & Phillips in Chicago. “It’s beneficial to employees but not entirely surprising given the trend of the law in this area.”

Federal courts have been allowing the simultaneous filing of Title VII and Section 1981 cases for many years. So the court affirmed the practice and thus adhered to the principle of stare decisis, a conservative practice.

But in this case, it could wind up costing employers. “The longer limitations periods and uncapped damages available under Section 1981 represent a significant incentive for plaintiffs’ lawyers to use when crafting litigation strategies,” says Gerald L. Maatman Jr., a partner at Seyfarth Shaw in Chicago.

What these results mean is that business cannot count on the Roberts court to bail it out. Companies have to understand that striking back against a worker who alleges discrimination is even worse than the original mistreatment.

Using a little common sense is more likely to result in a favorable outcome in court—or avoiding court altogether—than counting on the appointment of conservative justices to the Supreme Court.

Even if you only peruse this space once in while—which makes sense because I only post once in a while—you know that I have urged readers to pay attention to Senate races this fall.

I return to that theme today because so much of the election oxygen is being consumed by the presidential race. Speculation about when Hillary Clinton will drop out of the Democratic primary and whether she will become Barack Obama’s running mate is the latest obsession consuming the top of the ticket.

Prognostications about John McCain’s longevity likely will fill up the airwaves and cyberspace this weekend now that the Arizona Republican has released his health records.

But dig a little deeper into the ballot this fall and you will get to races that will go a long way in determining the fate of labor law in the next Congress. Specifically, watch the Senate races where open seats or vulnerable Republicans are juicy prey for a hale and hearty Democratic Party.

Currently, the Senate is comprised of 51 Democrats and 49 Republicans. But many of the most contentious issues in that body are not decided by a simple majority vote.

Instead, they are subject to cloture, or a requirement of 60 votes in order to end debate and move to a vote on final passage of a bill. Failure to invoke cloture means that a bill has been filibustered.

There’s no doubt that the GOP will lose Senate seats this fall. The only question is how many. The closer they get to 40, the less power they will have to filibuster.

This is important for labor law because a couple of prominent measures in that area have been filibustered. But in a simple majority vote, they would have been approved.

For instance, there is the Employee Free Choice Act. It would allow a union to be recognized when a majority of workers sign cards authorizing one. Under the measure, companies could not insist on a secret ballot election supervised by the National Labor Relations Board.

The so-called card-check bill failed to gain cloture last summer, 51-48. Some of the senators who filibustered that measure are among the most endangered Republicans up for re-election.

That group includes Sens. Susan Collins (Maine), Norm Coleman (Minnesota), Elizabeth Dole (North Carolina), Gordon Smith (Oregon), and John Sununu (New Hampshire). In addition, Sen. Pete Domenici of New Mexico voted to stop the card-check bill. But he is retiring and the race for his seat will be highly competitive.

The filibuster math changed a bit on a labor law vote last month. The Senate failed to invoke cloture on a measure that would have made it easier for workers to sue for pay discrimination. The Senate filibustered the Lilly Ledbetter Fair Pay Act of 2007 by a 56-42 tally, four short of the magic 60 to end debate. 

The number of votes for cloture would have totaled 57 except that Senate Majority Leader Harry Reid, D-Nevada, changed his vote in order to be able to bring the bill up again later this year. Two senators—Chuck Hagel, R-Nebraska, and McCain—did not vote.

If you assume that Hagel and McCain would have been in favor of the filibuster, it would have been upheld by 43 votes. That leaves Republicans with a fairly narrow margin, as they look ahead to battling the bill again in the next Congress.

The political calculus on Ledbetter is a little different than it is on card check. Collins, Coleman, Smith and Sununu all voted in favor of ending the debate on Ledbetter. Of the senators listed above, only Dole voted to filibuster Ledbetter.

But the point remains that as Republicans slip toward 40 total senators, their ability to filibuster will diminish. Depending on where you stand on issues like the card-check and Ledbetter bills, you may find that encouraging or discouraging.

The vulnerable Republicans are likely happy that McCain is the Republican presidential nominee. Like him, they are moderates. It will help their cause to have him at the top of the ticket.

But if they and McCain lose in November, Democrats are in a much stronger position to get measures they support signed into law. In Washington, there will be a House and Senate with larger Democratic majorities and a Democrat in the White House.

The only thing standing in the way of the card-check and Ledbetter bills becoming law will be somewhere around 43 Republican senators. Keep your eyes on the Senate races this fall.

In my next two blog entries, I will outline ways that this fall’s elections will affect issues that are important to our readers. Too often, American politics is portrayed as a horse race, focusing on who’s ahead, who’s behind and who has momentum.

This fixation notwithstanding, the party that crosses the finish line first will produce real consequences on a range of issues. And it’s no mystery that the victors will be the Democrats—at least on Capitol Hill. The White House is still in question.

In the House, the 17-seat Democratic majority could increase by as many as 25 seats. The Republican Party has a branding problem worse than that of New Coke a couple decades ago. For a variety of reasons, the GOP is leaving a bad aftertaste with the American people, which has led to three consecutive Republican losses in recent House special elections.

In the Senate, the picture is equally bright for the Democrats. They are likely to end up with 56 to 58 seats, a sharp increase from the 51 they currently hold.

One outcome of increased Democratic majorities is that consumer-directed health care in general, and health savings accounts in particular, will be under attack.

Democrats oppose HSAs for the same reason they resist individual Social Security accounts. They believe they are emblematic of what they call the Republican preference for an “on-your-own society.” HSAs make people fend for themselves in the health care market, as Social Security accounts would make them do in the retirement market.

An example of the Democratic attitude toward HSAs was on display at a House Ways & Means subcommittee hearing May 14. At the meeting, a Government Accountability Office study of HSAs was released.

It showed that HSAs are growing in popularity. The number of lives they cover has risen from 438,000 in 2004, when they were introduced, to 6.1 million in January.

It also showed that people who indicated HSA activity on their tax returns in 2005 had an average adjusted gross income of $139,000, compared with $57,000 for everyone else. Average contributions were $2,100, while average withdrawals were $1,000.

These statistics fueled the Democratic charge that HSAs are for the “healthy and wealthy.” Here’s what the subcommittee chairman, Rep. Pete Stark, D-California, said in prepared remarks:

“The selection of healthy and wealthy people, if these plans were widely adopted, would lead to a devastating cost increase for all who decided to remain in conventional insurance. These plans simply shift costs and responsibilities to consumers. It will discourage lower- and middle-income people from seeking care when they need it.”

Rep. Dave Camp, R-Michigan, responded that the GAO made a mistake in relying on data from 2005, when HSAs were being rolled out, instead of today, when more than 6 million people use them. He accused the GAO of drawing an “erroneous sweeping conclusion.”

He said that HSAs were instrumental in increasing coverage among employees of small companies. He also cited statistics that showed 45 percent of people using HSAs made less than $45,000.

The Republicans were allowed to invite one witness to the hearing: Wayne Sensor, CEO of Alegent Health in Omaha, Nebraska. Sensor said that his firm’s health costs have dropped 15 percent since he started offering HSAs and other consumer-directed health care to his employees.

But Stark chided Sensor for only contributing $100 when employees open their HSA accounts. “You’re giving the store away there,” he said.

Democrats portrayed HSAs as tax shelters in which wealthy people can keep money away from the IRS until they use it for non-medical reasons after turning 65. Before 65, there is a 10 percent penalty for withdrawals for non-health-related purposes.

Democratic antipathy toward HSAs finds its way into legislation. Last month, the House passed a tax bill that would require stricter IRS reporting requirements for the use of HSAs, a move that HSA advocates say would add cost and complexity to the accounts and could cause employers to drop them.

Most Democrats, including freshmen from conservative districts, voted in favor of the bill. Even though many newly elected members of the party are more conservative than Stark and other Democratic leaders, they probably won’t defend HSAs.

Compelling arguments can be made that HSAs do little to address the needs of the 47 million Americans who lack health care coverage and that they cause low-income Americans to avoid needed care. And it may be that President Bush and the Republicans want to skew the tax code to favor misguided health care policy.

What do you think? Does your company provide HSAs and other forms of consumer-directed health care? Why or why not? Is it effective? I’m curious to know where our readers come down on this heated congressional debate.

It wasn’t the typical rapid reaction that has become a staple of Washington life since Bill Clinton’s 1992 presidential campaign.

Usually in political combat, the advocates on opposing sides of an issue attack and counterattack within the same news cycle, sometimes within the same hour.

It took Rep. Ken Calvert, R-California, two days to push back against a coalition of HR groups, led by the Society for Human Resource Management, that wants to replace the government-run electronic employment verification system that he authored, E-Verify.

In a hearing on Tuesday, May 6, the HR Initiative for a Legal Workforce was among critics that called E-Verify inefficient, prone to error and incapable of detecting identity fraud.

In an announcement released late on Thursday, May 8, Calvert’s office called on the organization “to end their campaign of negative advertising and often exaggerated claims against E-Verify.”

On May 6, the coalition led the charge for a bill written by Sen. Sam Johnson, R-Texas, that would replace E-Verify with a new electronic verification mechanism and eliminate the I-9 process.

Companies would be required to submit new-hire information to the Social Security Administration through a child-support enforcement system that about 90 percent of U.S. employers use. But before that happens, the Social Security database would be cleaned up through a congressional appropriation.

The problem with E-Verify, opponents argue, is that it relies on the current database, which has a 4.1 percent error rate and could mistakenly declare millions of people ineligible for employment. They also say that the Johnson bill avoids many other E-Verify deficiencies.

At the hearing, Calvert defended his creation, testifying that 92 percent of employees put into the system are immediately approved and less than 1 percent successfully contest a nonconfirmation.

About 61,000 employers voluntarily use E-Verify. The law that established the system expires in November. Calvert has introduced a bill that would reauthorize it and mandate that all 7.4 million employers sign up over a seven-year period.

Most of the input at the hearing came from people who were concerned that such an expansion of E-Verify would overwhelm the Social Security system.

After mulling it over for a couple days, Calvert issued a pointed statement on Thursday.

“While I appreciated the opportunity to testify, it was clear that the hearing, as evidenced by the second witness panel, was slanted against E-Verify,” he said. “The fact remains that E-Verify is the only tool available for employers, who are required to hire a legal workforce, to check the veracity of identification documents presented by a new employee.”

Then the shot across SHRM’s bow: “There are certain interests that simply do not want employment verification. That is why they will denounce E-Verify and assert that there is a perfect system out there somewhere, when in fact there is no perfect system.”

But SHRM is standing its ground. The world’s largest HR organization has never said it is against verification; but it will continue to oppose the current government system.

“Our opinions are not politically motivated,” says SHRM president and CEO Sue Meisinger. “They are based on what our members say. We think there’s a better way than E-Verify.”

The disagreement between SHRM and Calvert may intensify as November, and E-Verify’s expiration date, approaches.

War and medical metaphors tend to dominate Washington parlance. For instance, partisans are constantly “attacking” someone else’s position or “defending” their own.

Sometimes, one side “inoculates” against an attack by doing something that is meant to neutralize the opposition’s argument.

On the eve of a hearing on employer verification that will kick off a renewed Capitol Hill focus on immigration policy, the Department of Homeland Security announced improvements to its electronic employer verification system on Monday, May 5.

The DHS program, known as E-Verify, has come under withering criticism from employers and HR organizations. The voluntary system, which has been in place since 1997 and now boasts 64,000 participating companies, checks information from I-9 forms against databases at the Department of Homeland Security and the Social Security Administration.

The Society for Human Resource Management and several other HR groups charge that E-Verify is inefficient, prone to error and incapable of being ramped up to handle traffic from all 6 million employers in the country. They cite statistics from a study showing that the Social Security database, upon which E-Verify relies, has a 4.1 percent error rate, which could amount to 6 million people being denied employment by mistake.

So, in typical Washington fashion, the DHS decides to inoculate against such criticism by unveiling two enhancements to the system the day before a Tuesday, May 6, House Ways & Means subcommittee hearing on employer verification.

The U.S. Citizenship and Immigration Services (USCIS), a division of the DHS, will add naturalization data to E-Verify in order to augment the Social Security databases. It also will allow nonconfirmed workers to resolve mismatches directly with the USCIS rather than going through the Social Security Administration.

“Naturalized citizens who have not yet updated their records with the Social Security Administration are the largest category of work-authorized persons who initially face an SSA mismatch in E-Verify,” the USCIS said in a statement.

The agency also said real-time arrival data from the border inspection system will be added to E-Verify in an effort to reduce mismatches for newly arrived workers.

The improvements are unlikely to assuage SHRM and the other members of the HR Initiative for a Legal Workforce. They are advocating a bill written by Sen. Sam Johnson, R-Texas and ranking member of the House Ways & Means Social Security subcommittee.

Johnson’s measure would mandate that employers submit information electronically only for new hires to the Social Security Administration through a child-support enforcement system already in place in each state.

Advocates for the bill say that about 90 percent of U.S. employers already use the so-called “dead-beat dad” system. The identity of prospective employees would be checked against Social Security and Department of Homeland Security databases. The procedure would eliminate the paper-based I-9 process.

Under the bill, employers would be given the option of signing up for a secure electronic verification system that uses a network of government-approved private contractors to conduct background checks of workers and collect biometric identifiers, such as fingerprints.

At the May 6 hearing, supporters of the Johnson bill will face off against champions of E-Verify. The meeting will launch House consideration of immigration proposals, many of which focus on enforcement.

The hearing series is an attempt by House Democratic leadership to satisfy conservative Democrats—and Republicans—who are pushing for a vote on bills that would crack down on illegal hiring.

Top House Democrats don’t want to allow enforcement measures to move forward without including bills to increase legal immigration and to allow a path toward naturalization for the 12 million illegal workers in the United States.

But the immigration logjam may have to be broken when it comes to E-Verify. The law that established the program expires in November. Congress has to either extend E-Verify or scrap it this year.