Just before President Barack Obama entered the East Room of the White House on Thursday, January 29, to sign the first bill of his new administration, more than a dozen House and Senate members gathered on the stage.

Obama was about to arrive with the day’s special guest—Lilly Ledbetter, a 70-year-old former supervisor at a Goodyear Tire & Rubber Plant in Alabama. Ledbetter was on hand to witness Obama transforming into law a bill named after her that would make it easier for workers to sue for pay discrimination.

Ledbetter was the plaintiff in a controversial 2007 Supreme Court decision. The justices held, 5-4, that Ledbetter could not pursue a claim that Goodyear had paid her less than her male counterparts for the same work over the course of 20 years because she did not file the complaint within 180 days of the first discriminatory action.

Ledbetter said she didn’t know about the pay disparities until they were revealed in an anonymous note from a co-worker more than a decade later. The bill Obama signed resets the statute of limitations each time a worker receives a paycheck that has been diminished by discrimination.

Since the Supreme Court ruling, Ledbetter has become an icon for Democrats and equal pay advocates. She has appeared at House and Senate hearings, Capitol Hill rallies, Obama campaign appearances and now the White House.

But for HR professionals looking for clues about why the Ledbetter bill became law this year after dying in the Senate last year, they should cast their gaze not upon Ledbetter, but upon the tableaux of legislators standing around Obama as he signed the legislation.

In that group, they would have seen two Republicans—Sens. Olympia Snowe and Susan Collins of Maine—among many Democrats. They demonstrated why it’s now much harder for the GOP to block bills.

Last year, there were 49 Republican senators. That was enough to sustain a filibuster on most legislation because 60 votes are required to overcome a filibuster. But the Ledbetter bill was stymied in 2008 with only 42 GOP votes.

After heavy election losses, Republicans are down to 41 Senate seats. That means that a filibuster goes “Poof!” if only one member sides with the Democrats. This is essentially what happened on the Ledbetter bill.

A cloture vote, which is another name for the filibuster procedure, passed easily and the Senate went on to approve the Ledbetter measure.
One of the key factors to assess is whether there are any Republican co-sponsors on a bill. In the case of Ledbetter, there was Snowe. A co-sponsor is not going to filibuster a bill. In the end, all of the GOP female senators ended up joining her in voting for the legislation.

Senate Minority Leader Mitch McConnell, R-Kentucky, could see that the prospects for sustaining a filibuster were dim. So, he struck an agreement with Senate Majority Leader Harry Reid, D-Nevada, to allow Republican amendments to Ledbetter.

One of the changes would have narrowed the statute of limitations to 180 days after a plaintiff knew or should have known she was the victim of discrimination. This proposal drew the support of business groups.

But it was defeated, along with all the other Republican amendments. In fact, it’s reasonable to assume that Democrats allowed consideration of the Republican measures because they knew they would go down.

In a National Press Club speech on January 23, McConnell acknowledged that the GOP will not stop as many Democratic bills as it did last year.

“Elections have consequences, and I’m pretty good at counting,” McConnell said. “Forty-one is not as high as 49.”

But he also noted that all is not lost for his party. Several new Democratic senators come from conservative states. They might be persuaded to join Republicans in halting bills that Republicans believe veer too far to the left—such as a measure that would make it easier for workers to join unions.

“The polls indicate this is still a center-right country,” McConnell said.

But for the GOP to muster a filibuster in today’s Senate, none of McConnell’s colleagues can cross over to the Democratic side.

When Washington gets back to work after the inauguration on Tuesday, January 20, the Senate will resume debate on a pay discrimination bill that would overturn a recent Supreme Court ruling.

The House has already passed that bill and another one that would allow unlimited punitive and compensatory damages for pay discrimination cases.

Although unions strongly support the pay legislation, if they had their druthers, the bill that would be in the pole position for quick action by the new Congress would be one that would allow workers to form collective bargaining units by signing cards. Under current law, a business can insist on a secret-ballot election monitored by the National Labor Relations Board.

Supporters estimate that Congress will vote on the Employee Free Choice Act by the Memorial Day recess. In legislative terms, that’s still pretty quick. But considering that it’s the top priority of organized labor, it’s an extended time frame.

Part of the slowdown could be attributed to the fact that President-elect Barack Obama has not pushed the bill to the top of his agenda. Obama was a co-sponsor of the measure when he was in the Senate and promoted it on the campaign trail.

But since the election, he has been silent on the issue in speeches and statements. For instance, when he announced the appointment of Rep. Hilda Solis as labor secretary, he did not mention EFCA by name. During her Senate confirmation hearing, Solis didn’t state a position on the bill.

Labor leaders say Obama did tout the bill in at least one media interview. And they are confident that Capitol Hill Democrats will move the measure with alacrity and that Obama will sign it.

But in his hesitation, Obama may be signaling that he is willing to listen to vociferous opposition to the measure from the business community, which is ready to go to war over the bill.

Opponents say that the bill would take away a worker’s right to a secret-ballot union election and subject him or her to strong-arm tactics from labor organizers. They also say that increased unionization will raise the cost of doing business at the worst time—in the heart of a recession.

But EFCA advocates say the bill does not remove the secret ballot as an election option. It just gives workers the right to form a union through the card-check process, which already occurs at companies willing to acquiesce. In addition, they argue that companies are the intimidators, firing one in five employees involved in union activities.

We will have several months for each side to make its case. Some of the strongest arguments in favor of EFCA come from Dean Baker, co-director of the Center for Economic and Policy Research in Washington.

Increased unionization would help workers gain their fair share of a growing economy, according to Baker. Since 1980, productivity has increased by about 46 percent, while total compensation has risen by about 20 percent.

As the percentage of private-sector workers belonging to a union has decreased—to 7 percent—they have less leverage to negotiate their share of the productivity gains, Baker said. The “union effect” may account for more than one-third of the difference.

In Baker’s formula, greater unionization would increase wages, which increases demand and ultimately leads to higher company profits and more investment. The last time major labor law was passed was during the Great Depression. Baker says that the unions it fostered helped boost the economy in the late 1930s and early 1940s.

That’s why he dismisses warnings that EFCA should not pass during a recession. “What we need to do is increase demand. Now is as good a time as any, probably better than most,” he said at a Washington event on January 13 sponsored by American Rights at Work.

The group is now airing television ads that compare an average worker’s struggles in a recession with the exorbitant executive pay and bonuses. “It’s time the economy worked for everyone again,” the ad states.

The challenge for business interests is clear. They have to go beyond decrying the loss of a secret ballot and worker privacy. They have to explain how employees will share in the greater prosperity that will come, in their view, from defeating the unionization bill.
 

The founders of the United States envisioned the House as the chamber that reacts quickly to public sentiment (the hot cup of coffee) and the Senate as the more deliberative body (the saucer that cools the cup).

Perhaps a more modern view is that the House makes a point. The Senate makes laws. As a former Senate staffer, I may be biased toward the “upper body.” But the construct that I’ve laid out applies to two bills sharing the pole position in the House.

Congress came back into session Tuesday, January 6. By Friday, the House is expected to vote on the Lilly Ledbetter Fair Pay Act, which would make it easier for employees to sue for pay discrimination, and the Paycheck Fairness Act, which would lift compensatory and punitive damage caps on pay suits.

The House is reacting quickly to a couple of developments. First, the Democratic majority has increased its numbers. Combine those gains with House rules favorable to the party in charge, and it is guaranteed that the bills will easily pass again.

Additional momentum comes from the fact that President-elect Barack Obama touted pay equity in his campaign as he sought to increase female support for Democrats and widen the gender gap with Republicans. Soon-to-be first lady Michelle Obama hosted many forums last year designed to highlight women’s issues, with these bills at the forefront.

Presumably, House leadership sees an opportunity to score political points immediately. They also believe that the bills will bolster the middle class and help working women who have not enjoyed the same pay increases as men over many decades.

Interestingly, Democrats are not starting the Employee Free Choice Act, which would make it easier for workers to form a union. That measure is fiercely opposed by the business lobby and promises to start a legislative Armageddon.

The two pay bills, however, are going straight to the floor after they’re introduced on Wednesday. There will be no hearings and no committee votes.

That doesn’t leave the business community much time to object. Randel Johnson, vice president for labor, immigration and employee benefits at the U.S. Chamber of Commerce, says the bills are examples of a “massive rewrite of labor laws” that Capitol Hill Democrats will be pushing during this session of Congress.

The proposed changes in the statute of limitations and damage caps “clearly crosses a new threshold in civil rights law,” Johnson says.

He and other business lobbyists are quick to add that they oppose pay discrimination. But they think that the bills up for a vote in the House this week are misguided.

Mike Aitken, director of government affairs at the Society for Human Resource Management, says that SHRM is open to discussing whether pay laws currently on the books are working.

“We don’t think the Ledbetter legislation or the Paycheck Fairness Act as passed in the last Congress is the appropriate approach to address pay discrimination in the workplace,” Aitken says.

Johnson and Aitken may have a better chance to make their argument in the Senate than in the House. If the House track is fast, the Senate track is muddy.

First, there are at least three seats still unsettled. Obama’s replacement in Illinois does not have the support of Senate Democrats because of a scandal surrounding Gov. Rod Blagojevich, who appointed him. In Minnesota, Al Franken has prevailed by a razor-thin margin after a recount, but the Republican incumbent, Sen. Norm Coleman, is going to file a lawsuit. And there is no replacement yet for Sen. Hillary Clinton in New York, who has been nominated for secretary of state.

It may take a while for the Senate to hit full strength. But when it does, there will be 59 Democrats, up from 51 in the last Congress. That puts the party tantalizingly close to the 60-vote threshold to break a filibuster.

The news is even better for proponents of the Ledbetter bill. Only 42 Republicans supported a filibuster last April, when it was on the Senate floor. Several of the people on that GOP roster lost their seats in 2008.

Still, the 41 remaining Republicans could persuade enough freshman Senate Democrats to join them in halting workplace legislation. That would force Democratic leadership to negotiate—and commence the tough process of making law.