Politics is a full-contact sport: don't get caught on the sidelines.

"The achievements of an organization are the results of the combined effort of each individual."--Vincent Lombardi

The Super Bowl may already have been decided, but other teams are just getting set for another active year of political gamesmanship over the direction of the country. When it comes to the issues affecting franchising, "Team Franchise" has some stiff competition. The two factions that tend to line up across the ball from franchising are unions and the trial bar. There are, of course, issues where there is some agreement, such as immigration reform, but on issue after issue franchising faces off against the united power of unions with their grassroots expertise, and trial lawyers with their financial resources.

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The forces of unions have long been a major player in politics in this country. From the early days of labor organizing, the united forces of a particular industry, or multiple industries, have been used to leverage political strength. The tactics may have adapted to modern times, but the vast, well-organized membership of unions remains a major political force in America. According to the Center for Responsive Politics--a non-partisan, non-profit research group based in Washington, D.C. that tracks money in politics, and its effect on elections and public policy--organized labor contributed more than $66 million to federal candidates for office during the 2005-06 election cycle, of which 87 percent went to Democrats.

The shear size of its political giving, as well as its grassroots organization have given labor the confidence to seek some radical, anti-business goals from the Democratic-led Congress.

Card Check

The misleadingly titled "Employee Free Choice Act," would take away a worker's right to a federally-supervised private ballot when deciding whether to join a union. Union membership has been on the decline for decades and labor has made this its highest priority in Congress.

The bill would replace the private ballot with a scheme called "card check," which allows a union to organize if a majority of workers simply sign a card. Under this system, the union organizers themselves, not the federal government, oversee the process. Workers' votes are made public to the employer, the union organizers and co-workers.

The legislation also contains an unprecedented requirement imposing contract terms on private, unionized employers through a process of compulsory, binding arbitration. If an employer and a union are unable to reach agreement on a first contract within 90 days, it can be referred to the Federal Mediation and Conciliation Service for mediation. After 30 days of mediation, the dispute will be referred to arbitration. Results of the arbitration will then be binding for two years.

Card-check legislation was active in 2007, passing the U.S. House of Representatives and reaching the U.S. Senate floor, but action is not anticipated this year. However, with the prospect of a new president who has not committed to vetoing the legislation, as President Bush has, the focus is on 2009 and beyond when this is sure to remain at the top of labor's wish list.

Family Medical Leave Act Expansion

Under legislation being considered by Congress, employers with as few as 15 employees would be required to permit each worker to take up to seven days of leave with pay and benefits. The bill, known as the Healthy Families Act, would impose inflexible rules governing the manner in which the leave is administered and, in many cases, would permit employees to take the leave in increments as small as six minutes with no notice and no documentation such as a doctor's note.

While well-intentioned, the legislation would limit an employer's ability to design compensation and benefits packages tailored to employees. In addition, the bill inevitably would increase unscheduled absences and chronic tardiness, burdening co-workers and harming productivity and competitiveness.

Another force to be reckoned with is the trial bar. While smaller in size compared to organized labor, trial lawyers are major players in American politics. In the 2006 election cycle, the American Association for Justice (formerly the Association of Trial Lawyers of America) gave $2.8 million to federal office seekers, with a lopsided 95 percent going to Democrats, according to the Center for Responsive Politics.

Some of the priorities they expect to be acted upon in the Democratic Congress include:

Ledbetter Fair Pay Act

In Ledbetter v. Goodyear Tire and Rubber Company Inc., the U. S. Supreme Court held last year that an individual must file a charge within 180 to 300 days, depending on the state law in the state in which the case is filed, after each alleged discriminatory pay decision. Although the plaintiff introduced evidence of pay discrimination that spanned her entire career at Goodyear during the trial, the Supreme Court held that Ledbetter should have filed a pay discrimination charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her.

In response to the court's ruling, the Ledbetter Fair Pay Act (H.R. 2831) was introduced last year, eliminating the statute of limitations for employment discrimination claims and making each paycheck or pension check an act of discrimination. The bill would gut the statute of limitations and enlarge the number of people who could bring suit under discrimination laws.

This legislation is indeed a boon to trial lawyers, but a killer for small businesses. The broad scope of the bill would open the door for a flood of litigation from employees or former employees, as well as their spouses, children, or anyone "affected" by the alleged discrimination. Claims would be filed based on acts that allegedly occurred decades ago, potentially against businesses that have changed hands or no longer exist. This bill would create endless record-keeping burdens and liability for employers.

Arbitration

Legislation introduced by Rep. Hank Johnson (D-Ga.) and Sen. Russ Feingold (D-Wis.) seeks to amend the Federal Arbitration Act to render as unenforceable all pre-dispute binding arbitration clauses in consumer, employment and franchise disputes. This legislation is an unwarranted intrusion into the freedom of contract rights of private companies, and it unfairly voids specific and longstanding contract terms in existing agreements. Perhaps most importantly, the bill will harm the ability of franchisors and franchisees to resolve their disputes effectively and economically.

The original purpose of the Federal Arbitration Act was to allow businesses "to settle their disputes expeditiously and economically." In principle, the swift resolution of disputes should benefit both parties by curbing litigation costs. In practice, however, arbitration can be a legally-complex issue, and there are a variety of court decisions that govern its use.

As a result, franchise systems have a wide variety of approaches to arbitration in their franchise agreements. In recent years, many franchise systems have moved toward other forms of alternative dispute resolution, such as mediation; but there are likely tens of thousands of existing franchise agreements that contain some form of mandatory arbitration clause. It would be an unnecessary infringement on the right of freedom of contract for Congress to rewrite the terms of these existing agreements between private parties.

ADA "Reform"

Proponents of the ADA Restoration Act (H.R. 3195/S. 1881) argue that legislation is needed to restore the original intent of the Americans with Disabilities Act because court decisions have inappropriately narrowed the scope of the law's protections.

Instead, this legislation would significantly broaden and re-write the ADA. The bill would dramatically expand the ADA so that anyone with "impairment" would be considered disabled and entitled to accommodation under the law.

The bill would force everyday business decisions into litigation by making it almost impossible for employers to establish job qualifications. Under current law, employers can establish job qualifications and, if an employee requests accommodation, will enter into a cooperative interactive process to see if an accommodation may be made. The bill would change this by making the issue of job qualification an affirmative defense for employers, thus shifting the burden of proof to employers.

Last year, the Equal Employment Opportunity Commission received 15,575 charges of discrimination under the ADA yet found reasonable cause for discrimination in only 5.6 percent of those cases, according to its Web site. This legislation will only serve as additional fodder for trial lawyers, diverting needed resources from protecting the rights of the truly disabled.

Credit-Debit Card Transaction Lawsuits

In 2003, Congress passed the Fair and Accurate Credit Transactions Act. This legislation was intended to improve and strengthen various protections against identity theft. One of the key provisions of the bill required retailers to limit the amount of information printed on receipts. Unfortunately, the legislation created confusion as to which information remained permissible on receipts.

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Shortly thereafter, hundreds of lawsuits were filed against businesses that incorrectly interpreted the law, leaving both a truncated credit card number and the expiration date on customer receipts. With fines reaching $100 to $1000 per violation, class-action status has been sought by lawyers seeking a windfall from the confusion.