The Legal Intelligencer Blog

Fresh Ink: Inside Today's Legal (and Delaware!)

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage.  (Some stories may require registration or a paid subscription.)

Just as Tuesdays always include our Pennsylvania Law Weekly section, Wednesday is the unofficial "Day of Delaware," when we roll out the fresh ink from our First State to the south. That includes the Delaware Law Weekly, available online at www.delawarelawweekly.com, as well as our newest product, the Delaware Business Court Insider, an online newsletter that definitely warrants a look.

But more about Delaware in a bit … let's get to today's Legal.

Topping the front page, U.S. Courthouse Correspondent Shannon P. Duffy has news that deals a legal setback to the Obama administration: "A federal judge in Harrisburg has struck down several provisions of the Affordable Care Act after concluding that the law's 'individual mandate' is an unconstitutional extension of Congress's authority under the Commerce Clause. 'The issue is whether Congress can invoke its Commerce Clause power to compel individuals to buy insurance as a condition of lawful citizenship or residency,' U.S. District Judge Christopher C. Conner wrote in his 53-page opinion in Goudy-Bachman v. United States."

Below the fold, reporter Amaris Elliott-Engel was there as the Supreme Court heard (televised) oral arguments in an historic setting in Old City Philadelphia yesterday. In the case she covered, a state Supreme Court justice characterized the drugmaker Wyeth as asserting that there is enough protection for persons harmed by prescription drugs in federal regulation of the release of drugs onto the market, and limiting plaintiffs to lawsuits for drugmakers' alleged failures to adequately warn of risks.

Today's Page 3 Regional News story is by reporter Zack Needles, who chronicles the growth of an area law firm: Philadelphia-based Zarwin Baum DeVito Kaplan Schaer Toddy has acquired four transactional lawyers from the Philadelphia office of Maryland-based Offit Kurman, saying increased work in that practice area over the last few months has necessitated the growth.

As always, our People in the News sectionis on Page 2. The top stories from our sister publications across the country make up the Page 4 National News section.

Today's contributed columns begin on Page 5 with an "Employment Law" column by Sid Steinberg of Post & Schell, who writes that as cases under the amended Americans with Disabilities Act begin to reach the courts, less emphasis will be placed on whether an employee is "disabled" and a greater emphasis will be placed on the questions of whether an employee is a "qualified individual" under the act and whether an employee could be reasonably accommodated.

Page 7 features our weekly "GC Mid-Atlantic" page, with an article from affiliate Corporate Counsel magazine, which profiles the new head of the Minority Corporate Counsel Association (MCCA), Joe West.

As we move south in our weekly coverage to Delaware, we'll stop first at the Delaware Law Weekly, where reporter Jeff Mordock has the top stories. Please note: all of our Delaware coverage is for paid subscribers, but you can register for a free 30-day trial by clicking here.

In the top slot, Jeff writes that four Sussex County residents have filed a lawsuit accusing the county's legislative council of explicitly endorsing Christianity by beginning each meeting by reciting the "Our Father."

Jeff also reports that St. Paul Fire and Marine Insurance Co. has filed a lawsuit seeking to remove itself from the duty of defending or reimbursing the Beebe Medical Center in Lewes, Del., from civil lawsuits related to the crimes committed by former pediatrician Earl Bradley.

Finally, we'd like you to meet (if you haven't already) the Delaware Business Court Insider.  As the name suggests, this is a national product covering the latest news, analysis and cases from the Delaware Chancery Court, Bankruptcy Court and Supreme Court. The accompanying website is www.delbizcourt.com, where you can go to subscribe to this newsletter weekly. You can also follow us on Twitter at: @delbizcour.

Top stories there include the following:
- President Obama is set to overhaul the nation's patent system, but attorneys say it is too early to see how the law will affect business.
-  Plaintiffs filed yet another amended complaint in their derivative suit against News Corp., including new allegations against the company.
- Vice Chancellor Noble denies plaintiffs' request for interim attorney fees in the Novell shareholder dispute.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal and our Delaware coverage!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail JBochet@alm.com.

Fresh Ink: Inside Today's Legal

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

Just as a heads-up, tomorrow's Friday issue will be devoted mainly to a special section on the 10-year anniversary of the Sept. 11 attacks. In commemoration of the anniversary, we asked readers to send us their stories of what they remember about that day, and what they feel about it now - and you won't want to miss the amazing stories you sent in.

But for now, today's paper features a ton of business of law stories, so let's get to them!

Leading the front page on this soggy Thursday morning, senior reporter Gina Passarella has a salary story of particular interest: "With some evidence that associate salaries are on the rise, one might start to think that it's a case of back to the future. But this time around, firms appear to be treading lightly. After a few years of taking advantage of a down market and decreasing associate salaries, some firms are starting to edge up what they pay first-year associates. Whether this means a wholesale increase across all associate levels is unclear." Read the full article here.

Alongside Gina's story, sharing the top of the front page, Zack Needles reports on a lateral move that may surprise you: David H. Marion, a 25-year veteran of Montgomery McCracken Walker & Rhoads who served as the firm's chairman for seven years until 2003, has left the firm to join the Philadelphia office of Haddonfield, N.J.-based Archer & Greiner.

Below the fold, U.S. Courthouse Correspondent Shannon P. Duffy has a (non-business of law-related) ruling from the 3rd Circuit: When an employer is hit with a proposed collective action under the Fair Labor Standards Act, it cannot "pick off" the lead plaintiff by making an offer of judgment that moots her claim before any other workers have the chance to "opt in" to the case, according to the court.

Zack also has today's Page 3 Regional News story, reporting on a Philadelphia-based firm's expansion to the western part of the commonwealth: Insurance defense firm Bennett Bricklin & Saltzburg announced the opening of a Pittsburgh office Tuesday, citing a desire to bring in more of its clients' Western Pennsylvania-based work.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

Today's Page 5 "Insight on Diversity" column is by Christopher A. Lewis of Blank Rome, who takes a deeper look at the business case for diversity.

Page 7 is where you'll find our weekly "Young Lawyer"or "YL" page, which today features a story from the Connecticut Law Tribune, a Legal affiliate. It looks at the emerging trend of recent law grads going solo because of the down economy.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail JBochet@alm.com.

Fresh Ink: Inside Today's Legal

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

For th second day in a row, U.S. Courthouse Correspondent Shannon P. Duffy leads today's paper with a 3rd Circuit class action case: In a ruling that may sound the death knell for bringing medical monitoring suits as a class action, the 3rd Circuit has refused to certify claims brought by residents of a small northern Illinois town who say they live in fear of contracting cancer due to chemical dumping from a Rohm & Haas plant.

Sharing the top of the page, senior reporter Gina Passarella has a  big verdict out of Delaware County. A jury there has awarded $3.8 million to the estate of a 52-year-old woman who died of sepsis at Riddle Memorial Hospital 14 hours after going to the emergency room with severe constipation. The award is said to be one of the highest medical malpractice awards, if not the highest, in the county in several years and is one of less than a handful of cases that have gone in the plaintiff's favor in five years.

Our Page 3 Regional News story today is by reporter Zack Needles, who has another  verdict: The state Superior Court has upheld a nearly $5.3 million verdict a Berks County jury awarded to the wife of a man who died after his doctor allegedly failed to diagnose and treat him for heart disease.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

The Legal's contributed columns begin on Page 5, an "Employment Law" column by solo Jeffrey Campolongo, who writes that internal review does not relieve an employer of "cat's paw" liability.

Page 7 has our weekly "Bankruptcy Update" column, this week by Rudolph DiMassa and Blake Roth of Duane Morris, who cover a matter of apparent first impression: In Spicer v. Laguna Madre Oil & Gas II LLC (In re Texas Wyoming Drilling Inc.), the 5th U.S. Circuit Court of Appeals held in an opinion dated July 21 that it was permissible to consider both a plan of reorganization and its accompanying disclosure statement when determining whether a debtor had sufficiently preserved certain causes of action pursuant to § 1123 of the Bankruptcy Code.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail JBochet@alm.com.

Will Local Employers Be Required to Give Paid Sick Leave?

By Eric B. Meyer
Special to the Legal

Employers beware. The cost of doing business in Philadelphia may be on the rise.

City Council is currently considering a bill that would require businesses to provide paid sick leave to employees who work a minimum number of hours in Philadelphia County.

Businesses with 11 or more employees would have to provide 72 hours (approximately nine days) or more of paid sick leave or paid time off (PTO) and businesses with 10 or fewer employees would have to provide 40 hours (approximately five days) a year. Businesses that currently meet or exceed the bill’s standards would be exempt. However, employers with a PTO policy may not be exempt from the bill if employees lose vacation time as a result of utilizing sick leave.

You can read the full “Promoting Healthy Families and Workplaces” bill here.

On the heels of another employee-friendly measure under consideration in City Council, many local business owners showed up to a City Council meeting last week to voice their displeasure with the bill. The Greater Philadelphia Chamber of Commerce also strenuously opposes the bill.

The Philadelphia Inquirer reports that City Council may vote on the “Promoting Healthy Families and Workplaces” bill on March 24. Mayor Michael Nutter appears set to veto the bill, if it passes City Council.

Eric B. Meyer is a member of the labor and employment group at Dilworth Paxson. Meyer also has his own labor and employment law blog, The Employer Handbook and readers can contact him via e-mail and follow him on Twitter.

Scott Brown In. Employee Free Choice Act Out. Union Spirits Down. Union Organizing Campaigns Going Up

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

Last week, Scott Brown pulled off something that no Republican had done in Massachusetts in over three decades. He won a Senate election.

In achieving what three weeks ago was considered impossible, Scott Brown and the GOP have cast a major monkey wrench into a series of reforms that appeared headed to vote in early 2010.

Why?

Until last week, the Democrats held 60 seats in the Senate, a supermajority. And with a supermajority, the Senate could have invoked cloture on any bill. Cloture is the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter and thereby overcome a filibuster.

No 60 votes, no cloture. No cloture, no voting on any bill in the Senate. No voting on any bill in the Senate, no legislation gets enacted.

Organized labor’s agenda takes a huge hit.

One such bill that now may never make it to a Senate vote is the Employee Free Choice Act (EFCA), a measure that would effectively eliminate secret ballot elections for employees and make it easier for unions to organize businesses. On the list of union priorities in the Obama administration, it wouldn’t be a stretch to list health care as 1 and EFCA as 1a.

Last week’s election aside, even with a supermajority in the Senate, the Employee Free Choice Act did not have votes to get to cloture. Both Sens. Blanche Lincoln, D-Ark., and Arlen Specter, D-Pa., had gone on record as not only opposing EFCA’s card check provision, but also refusing to invoke cloture on the bill. (Other Senate Democrats had announced their opposition to card check, but had not taken a public position on cloture).

Yet, Specter breathed new life into the EFCA in August 2009, when he announced to a Netroots Nation conference held in Pittsburgh that he expected a cloture vote on a modified version of the EFCA. Speculation was that this modified EFCA would include quickie elections and best, final offer arbitration.

However, with the election of Brown in Massachusetts, Specter and the Democrats will need at least one Republican to support the modified version of the EFCA in order to get to cloture. At this point, that’s about as likely as Yankees’ third baseman Alex Rodriguez defeating John Kerry in Massachusetts’ next Senate elections in 2014.

Unions are down, but certainly not out

Even without the EFCA, don’t expect organized labor to lie down. Until last week, many big names in organized labor were forecasting an EFCA vote in the first few months of 2010. Under existing law, if organized labor loses a union election, it must wait a full year until it may attempt to organize the same employer. With the EFCA, that rule wouldn’t change. However, with the EFCA making unionization that much easier (and less expensive), unions had incentive to dial down their organizing efforts until its passage.

The statistics confirm this. The Bureau of National Affairs (BNA) reported that there were fewer representation elections conducted by the National Labor Relations Board (NLRB) during the first half of 2009 as compared to the first half of 2008, and the number of employees eligible to vote in the 2009 elections dropped by more than 40% compared to the number of eligible voters in 2008.

Unions can no longer afford to hold out for the passage of the EFCA. Unions are funded on union dues. Union dues are paid by union members. Fewer union members equals less money for unions. Less money for unions means less unions. Therefore, expect to see a marked increase in union organizing efforts over the next several months. Whether these organizing efforts bear fruit may be the best barometer we have in gauging public sentiment towards organized labor and unionization.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Mr. Meyer via e-mail and follow him on Twitter.

Employers Must Now Tread Even More Carefully With Employee Requests for FMLA Leave

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

 

It would be “patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins.”

 

These, the words of Judge Thomas Hardiman, writing for the court in Erdman v. Nationwide Insurance Co. In Erdman, the court held that any employer may not fire an employee for making a valid request for rights under the Family and Medical Leave Act.

 

Under the FMLA, covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

• for the birth and care of the newborn child of the employee;
• for placement with the employee of a son or daughter for adoption or foster care;
• to care for an immediate family member (spouse, child or parent) with a serious health condition; or
• to take medical leave when the employee is unable to work because of a serious health condition.

 

The facts in Erdman are fairly straightforward. The plaintiff requested that her employer afford her FMLA leave to take care of her sick daughter. Subsequent to the plaintiff making the FMLA request, and prior to the plaintiff actually going out on FMLA leave, the company terminated her employment for what it termed “behavioral problems.” Plaintiff subsequently filed suit alleging that the employer’s reason for terminating her employment was pretextual for her having requested FMLA leave. That is, the plaintiff contended that her employer had engaged in FMLA retaliation and had further violated the FMLA’s interference provision, which makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise" any right provided by the FMLA.

 

Finding that the plaintiff had not accumulated enough hours to be eligible for FMLA leave, the district court granted summary judgment to the employer.

 

On appeal, the court determined, as an initial matter, that the plaintiff was eligible for FMLA leave. The court next reaffirmed that it had never before condoned or otherwise sanctioned employer retaliation against an employee who requests FMLA leave. Thereafter, the Erdman court reasoned that requiring an employee to first take leave as a prerequisite to establishing a claim for FMLA interference would “perversely allow a employer to limit an FMLA plaintiff’s theories of recovery by presumptively firing her.”

 

Here, because the employer fired the plaintiff before her FMLA leave commenced, the plaintiff had the right to argue that her termination was in response to her having requested FMLA leave. Accordingly, the 3^rd U.S. Circuit Court of Appeals reversed the lower court’s grant of summary judgment to the employer.

 

The lesson here is that an employer should not take any action against an eligible employee merely because she requests FMLA leave. However, it is worth noting that the Erdman court did leave for another day the issue of whether eligibility for FMLA leave is required in order to prevail on a claim for FMLA retaliation.

 

For that answer, stay tuned…

 

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact him via e-mail and follow him on Twitter.

 

 

Race Claims Under 29 U.S.C. § 1981 Will Not Survive Where Earlier Title VII Claims Based on Same Facts Have Been Dismissed

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

In a case of first impression in the 3rd U.S. Circuit Court of Appeals, the court ruled in Elkadrawy v. Vanguard Group Inc. that the doctrine of res judicata precludes an employee from pursuing successive race claims where the initial race claims are dismissed in a prior action as untimely.

In Elkadrawy, the plaintiff, a Muslim American of Egyptian origin, filed a pro se complaint against his employer. The employee claimed that his employer had discriminated against him on the basis of his race and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII). The court dismissed the complaint as untimely, as the employee had failed to file his complaint within 90 days after receiving a notice of right to sue from the U.S. Equal Employment Opportunity Commission. Thereafter, the plaintiff filed a second complaint. In his second go-round, the plaintiff asserted race discrimination claims under both 29 U.S.C. § 1981 and the Pennsylvania Human Relations Act.

It is noteworthy that the EEOC had not previously investigated the plaintiff's Section 1981 race claims. Unlike claims brought under the Title VII, an employee is not obligated to file a charge of discrimination with the EEOC as a prerequisite to asserting race claims in federal court under Section 1981.

Still, the employer moved to dismiss both the Section 1981 and PHRA claims on the basis of the doctrine of res judicata. The employer argued that the employee's Section 1981 and PHRA claims rested upon the same facts of alleged discrimination under Title VII as set forth in his original complaint and the rules of finality treat a dismissal on statute of limitations grounds as a judgment on the merits.

The lower court agreed and the 3rd Circuit affirmed dismissal of the Section 1981 claims.

Each court reasoned that: dismissal of Title VII claims based on a statute of limitations defense operates as a final judgment on the merits; the second action involved the same parties; and the second action was based on the same cause of action.

The 3rd Circuit's decision to dismiss the Section 1981 claims was consistent with prior treatment by the 5th and 8th Circuits of the same set of successive claims.

As for the employee's claims under the PHRA, he escaped by the skin of his teeth. In a sympathetic gesture, the lower court dismissed them, without prejudice, with leave to re-file in state court. On appeal, the 3rd Circuit did not disturb the lower court's ruling.

The lesson here: It is incumbent upon employees to raise at one time all potential claims of discrimination against a single employer arising from the same set of operative facts instead of pursuing them piecemeal.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact him via e-mail and follow him on Twitter.

Race Claims Under 29 U.S.C. § 1981 Will Not Survive Where Earlier Title VII Claims Based on Same Facts Have Been Dismissed

 [This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

In a case of first impression in the 3^rd U.S. Circuit Court of Appeals, the court ruled in Elkadrawy v. Vanguard Group Inc. that the doctrine of res judicata precludes an employee from pursuing successive race claims where the initial race claims are dismissed in a prior action as untimely.

 In Elkadrawy, the plaintiff, a Muslim American of Egyptian origin, filed a pro se complaint against his employer. The employee claimed that his employer had discriminated against him on the basis of his race and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII). The court dismissed the complaint as untimely, as the employee had failed to file his complaint within 90 days after receiving a notice of right to sue from the U.S. Equal Employment Opportunity Commission.

Thereafter, the plaintiff filed a second complaint. In his second go-round, the plaintiff asserted race discrimination claims under both 29 U.S.C. § 1981 and the Pennsylvania Human Relations Act.

It is noteworthy that the EEOC had not previously investigated the plaintiff’s Section 1981 race claims. Unlike claims brought under the Title VII, an employee is not obligated to file a charge of discrimination with the EEOC as a prerequisite to asserting race claims in federal court under Section 1981.

Still, the employer moved to dismiss both the Section 1981 and PHRA claims on the basis of the doctrine of res judicata. The employer argued that the employee’s Section 1981 and PHRA claims rested upon the same facts of alleged discrimination under Title VII as set forth in his original complaint and the rules of finality treat a dismissal on statute of limitations grounds as a judgment on the merits.

The lower court agreed and the 3rd Circuit affirmed dismissal of the Section 1981 claims.

Each court reasoned that: dismissal of Title VII claims based on a statute of limitations defense operates as a final judgment on the merits; the second action involved the same parties; and the second action was based on the same cause of action.

 

The 3rd Circuit’s decision to dismiss the Section 1981 claims was consistent with prior treatment by the 5th and 8th Circuits of the same set of successive claims.

As for the employee’s claims under the PHRA, he escaped by the skin of his teeth.

In a sympathetic gesture, the lower court dismissed them, without prejudice, with leave to re-file in state court. On appeal, the 3rd Circuit did not disturb the lower court’s ruling.

The lesson here: It is incumbent upon employees to raise at one time all potential claims of discrimination against a single employer arising from the same set of operative facts instead of pursuing them piecemeal.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact him via e-mail and follow him on Twitter.

 

Attention Employers: Independent Contractors Can Now Pursue Race Discrimination Claims, Too

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

Local employers should expect to see an increase in race discrimination suits. That is, independent contractors are now free to pursue race discrimination claims against employers.

Until recently, only employees could bring suits against their employers for race discrimination. Employees could assert these actions under Title VII of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act, or PHRA, or 29 U.S.C. § 1981.

Independent contractors, on the other hand, were generally precluded from pursuing these claims. Under Title VII, an independent contractor cannot maintain a cause of action for discrimination. Meanwhile, only those independent contractors in certain regulated industries may pursue claims of discrimination under the PHRA.

However, last week, the 3rd U.S. Circuit Court of Appeals ruled in Brown v. J. Kaz, Inc. that an independent contractor has standing to pursue race discrimination claims under 29 U.S.C. § 1981.

In reaching its conclusion, the court focused on the text of Section 1981, which provides that “all persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Given that Section 1981 refers to “all persons” and embraces all contracts, the court reasoned that an independent contractor is not precluded from bringing a case of action under Section 1981 for discrimination.

So now both employees and independent contractors can pursue race discrimination claims.

Moreover, although not discussed in the court’s opinion, a Section 1981 claimant does not have to first have to file a charge of discrimination with the U.S. Equal Employment Opportunity Commission prior to filing suit in federal court. So not only will the number of discrimination claims increase, but as will the speed with which these claims get to federal court.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact him via e-mail and follow him on Twitter.

What the Death of Sen. Ted Kennedy Means for the Future of the Employee Free Choice Act

[This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter or as in any way creating an attorney/client relationship with the author and/or Dilworth Paxson LLP.]

A little while back I posted about how the Senate may wait until 2010 to take up the Employee Free Choice Act, a bill that would make unionization easier for employees.

Now with Sen. Edward Kennedy’s passing, there is little doubt that the Employee Free Choice Act, a bill that the senator -- a longtime ally of organized labor -- strongly supported, will have to wait until next year.

In a comment posted on the labor-friendly Web site Firedoglake.com on Aug. 24, the day before Kennedy succumbed to brain cancer, AFL-CIO Secretary-Treasurer Richard Trumka wrote that President Obama and Chief of Staff Rahm Emmanuel “have both said they [don’t] intend to bring Employee Free Choice Act up until Health Insurance Reform is done.” 

Trumka further identified Kennedy as the 60th vote required for cloture, the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Accordingly, without Kennedy’s cloture vote, the Employee Free Choice Act cannot be voted upon in the Senate.

Concerned about losing momentum on health care reform, prior to his death, Kennedy had asked Massachusetts Gov. Deval Patrick to be prepared to name his immediate successor. However, current law mandates that a special election be held not earlier than 145 days after a Senate seat opens. Therefore, unless the law is changed, no one will fill Kennedy’s seat until January 2010 at the earliest.

So organized labor presently lacks the 60 votes in the Senate to reach cloture on the Employee Free Choice Act. In fact, notwithstanding that 59 Democrats remain in the Senate, there may be fewer cloture votes than that.

Sen. Robert C. Byrd, D-W.V., the longest serving senator in U.S. history and a supporter of the Employee Free Choice Act, is ill and presently unavailable to vote. Sen. Blanche Lincoln, D-Ark., has broken ranks and announced that she will not vote for cloture on the Employee Free Choice Act. At best, that leaves only 57 votes for cloture.

Several obstacles now stand in the way of the Employee Free Choice Act.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Meyer via e-mail and follow him on Twitter.