This election is important for a lot of reasons. One reason it’s important has been completely below the radar during the entire campaign, and that reason is its impact on labor and employment law. It’s been a long time since an election will have as much impact on this area of the law and, thus, on the way employers do business and deal with their employees.

I’ve done a number of posts on this as the campaign has progressed, including one on what businesses should do now to deal with potential problems on Election Day if employees have to stand in line for a long time to vote. I thought it might be useful to take one more look at this subject. In particular, there are a half dozen pending bills that may be on the front burner once the new President and new Congress take office. I’m going to list these bills in the order I think they’re likely to be passed. I’ll also remind you of McCain’s and Obama’s positions on these bills.

1. Employment Non-Discrimination Act (ENDA) — This law would make sexual orientation a protected class. It has passed the House once. McCain has voted against a version of it in the past. Obama supports this proposed legislation. Assuming the Democrats make the kind of gains in both the House and Senate that are predicted, this bill should become law rather quickly.

2. Fair Pay Restoration Act — This bill is meant to reverse the U.S. Supreme Court’s decision in Ledbetter v. Goodyear . It’s sometimes referred to as the Lilly Ledbetter Act. Although it’s pushed by its proponents as a law that would help women receive equal pay, that’s not quite right. There are laws already on the books that do that.

The Supreme Court in Ledbetter dealt with the claim that an employee should be able to recover for gender discrimination going back for 20 years or so. The Court ruled that under Title VII, an employee had 180 days to file a discrimination charge with the Equal Employment Opportunity Commission (EEOC). If she failed to meet that deadline for each act of discrimination, she couldn’t reach back and combine a number of acts of discrimination into one. If this proposed law passes, depending on what the final version says, it could dramatically impact the liability an employer has for past discrimination.

Although many supporters of the law argue that the Supreme Court’s decision was terribly unfair, since the discrimination against Ms. Ledbetter seems to have occurred most of her career, there’s another side to this. An employee never has an unlimited period of time to file a charge or a lawsuit. There has to be a cut off — a statute of limitations. It’s virtually impossible to defend a case that goes back a long time, say 20 years. Witnesses are no longer available. Memories are stale. Decision makers have changed.

McCain opposes this legislation in it current form. Obama supports it. It seems to me that this proposal has the second best chance of passing in the early part of 2009, because the Ledbetter case has received so much attention, and it’s likely to continue to be billed as an equal pay law that helps women gain parity with the pay of men.

3. Healthy Families Act — After 1 and 2, it’s a little harder to predict, but I’m going with this proposal, which would require employers with 15 or more employees to provide seven paid sick days to employees. Some employers already do this, but many don’t. With the economic hard times we’re facing and the probable desire on the part of the new Congress to do something quickly to help struggling employees, the passage of this legislation should be relatively easy. As far as I can determine, McCain hasn’t expressed a position on this bill. Obama supports it.

4. Employee Free Choice Act (EFCA)– Even with big Democratic gains in the House and Senate, there will be a battle over this piece of legislation. It allows a union to be recognized if enough employees sign union authorization cards. It eliminates the union election. It makes it possible for a collective bargaining agreement to be decided by arbitrators instead of being negotiated between the employer and the union. That’s a lot of fundamental change.

Unions are likely to push hard for the enactment of this law, because they will argue that they helped deliver the election to the Democrats (if that’s what happens). The change is so dramatic, however, it’s likely to require some adjustments before it can pass. Unless the Democrats end up with a veto-proof majority, the Republicans will filibuster this proposal until the cows come home or until the bill is changed.

Some version of this bill will eventually pass. It will make it easier for unions to organize or to at least have elections more quickly. It’s just hard to believe that it will pass in its current form. McCain opposes the law. Obama supports it.

5. Civil Rights Act of 2008 — Although this proposed law would do several things, the main thing it would do is to remove the damage caps presently imposed on federal discrimination lawsuits. The most that can be recovered now is $500,000, and that would be against an employer having over 500 employees. I don’t think this law will die on the vine, but the proposals listed above have more traction. The Civil Rights Act of 2008 is likely to have to wait a while for serious consideration. McCain opposes this law. Obama supports it.

6. FOREWARN Act– This bill would amend the Worker Adjustment and Retraining Notification Act, better known as WARN. It would apply to employers with 50 or more employees instead of the current 100 or more. It would require a covered employer to give employees involved in a plant closing or mass layoff 90 days notice instead of the current 60 days. It would double the amount of backpay an employer would owe employees if the notice requirement isn’t met

Given our current economic crisis where layoffs are occurring all the time and employers are finding it difficult to plan 30 days out, much less 90 days, it seems unlikely that this proposal will receive much attention in 2009. I don’t believe McCain has taken a position on this bill, but he struggled to support WARN, so it’s unlikely he would support FOREWARN. Obama supports the bill.

So, there you have it. I haven’t focused on immigration or health care in this post, although both are important employment law issues. There aren’t specific legislative proposals on these subjects at present, although there surely will be, perhaps in early 2009.

The only thing that could slow down the first four proposals (listed above) is our current economic mess. Congress could be persuaded to hold off on passing the legislation quickly to give business time to regain its footing. Time will tell, but there’s no doubt that these bills will have a good amount of support from the get-go in the new Congress. If the first four proposals pass in 2009, employers, HR professionals and employment lawyers will have enough on their plates to last a long, long time.