This is the Google Trends index on the Employee Free Choice Act. The peak coincides with Election Day. I imagine that there will be another slight increase after the President-elect spokesman reconfirmed the incoming administration’s support for the bill.

This article today from Fisher & Philips warns retailers thusly: 

Gallons of ink have been spilled by lawyers and journalists concerning the Employee Free Choice Act (EFCA). But this law is likely to have a particular effect on retailers, and retailers – more so than other employers – should start planning for the worst now.

* * *

Small and mid-box stores may operate at times without exempt managers being on-site. This complicates the employer’s ability to detect union organizing in its early stages, when it is most likely to be able to respond appropriately to a union drive.

Thought provoking.

It’s funny. Most of what you read about the EFCA isn’t really advice, at least client-interest driven advice. It’s mostly Chamber of Commerce politics. There’s nothing wrong with that. But the distinction between efforts to stop this bill’s enactment and how to handle it if it passes are two distinct things (and law firm marketing is yet a third).

First, the NLRB’s current jurisdictional limit for retailers is $500,000.00. Depending on what you sell and what size your business is, that number looks very different. So, this isn’t going to close down the truly “small” businesses. 

Second, this detection problem is only slightly less of a problem under existing law.

I consider myself to be a decently astute observer of politics. I can count 59 cloture votes in the Senate, and I’m pretty sure they can find 4 votes to add to the existing sponsors to get it passed. This bill has already passed the House. As I mentioned above, Obama supports it.

Given everything else that is going on, it’s my guess that one way or another, that last vote will be found. One way of doing that, and also limiting concern for small business, is:

• Raise the jurisdictional limits

or:

• Set a threshhold based on the “commerce” threshholds in dollars used by the NLRA, or by number of employees used by other employment laws for where “card checks” come into effect, and make it at a much higher level than the jurisdicitonal limits

Preparing for unionization won’t change much, I don’t think; it’ll just change who needs to do it. But what has changed is the political environment of the United States. The time to prepare for that has already passed, so it might behoove folks to look at potential amendments to EFCA rather than going all in with a pair of 3s.

UPDATE: Implicit, but only vaguley, I guess is that the activity on EFCA corresponds to political activity, and, as such, you can take that for what it’s worth, but I think it’s fair to same a large amount of the material on it is political, not legal, despite the source.