When Republican Scott Brown of Massachusetts won January’s special election to fill the seat long occupied by the late Sen. Ted Kennedy, Democrats lost their 60-vote supermajority in the Senate.
That means Senate Democrats will no longer be able to automatically stop the threat of Republican filibusters on controversial legislation—and that means it will be that much more difficult for the Obama administration to make good on many of its pro-employee campaign promises.
That’s not to say those employment law initiatives are dead. This still could be a key year for Democratic plans to revamp our national employment laws.
The following are the key employment law initiatives pending in Congress, and what they could mean for your business if they become law. I’ve ranked these legislative proposals in order of the likelihood that they will pass this year.
1. Employment Non-Discrimination Act (ENDA). ENDA would prohibit employers from discriminating or retaliating against actual or perceived gay, bisexual or transgender employees or applicants.
If this bill passes, you will have to stop discriminating on the basis of these classes, rewrite your EEO policies, train your managers and supervisors to be more aware of issues that affect gay, bisexual and transgendered people, and include these issues in all EEO and harassment training.
2. Protecting Older Workers Against Discrimination Act. In Gross v. FBL Fin. Servs., the U.S. Supreme Court held that there is no such thing as a mixed motive under the Age Discrimination in Employment Act. To succeed on a federal disparate treatment age-discrimination claim, a plaintiff must prove that age was the only cause of the challenged action.
This legislation would overturn this case, and permit a plaintiff to establish age discrimination by demonstrating that age was a “motivating factor” for the adverse action. The bill would make it easier for plaintiffs to prove age discrimination, and make it more difficult for employers to defeat age claims on summary judgment. The result will be higher defense costs, more jury trials and increased settlement values for federal age claims.
3. Healthy Families Act. The swine flu pandemic helped employee advocates prove their point that America’s workers need greater access to paid sick leave. This bill would require businesses with 15 or more employees to provide employees seven days of paid sick leave per year.
If this bill passes, employers will have to rewrite policies to provide the required sick leave.
4. amendments: the Enhancement Act and the Family Fairness Act. The Family and Medical Leave Enhancement Act would expand the coverage of the FMLA to employers with 25 or more employees, and would expand the reasons for to include a child’s or grandchild’s educational or extracurricular activities, or a child’s or elderly relative’s medical appointments.
The Family Fairness Act would expand the FMLA’s coverage to include part-time employees.
Passage of either of these bills would require employers to revisit and rewrite their FMLA leave policies. Along with the Healthy Families Act, these amendments would further limit the ability of employers to manage and schedule employees’ working time.
5. Arbitration Fairness Act. The recent extension of the federal COBRA subsidy contained a provision that prohibits arbitration of Title VII claims for government contractors that receive more than $1 million from the federal government.
This legislation would void all predispute arbitration agreements that mandate arbitration of employment disputes, except for those contained in collective-bargaining agreements.
The enactment of this bill would require litigation of all employment disputes.
6. Paycheck Fairness Act. This bill would provide for compensatory and punitive damages for Fair Labor Standards Act violations. It would shift the burden in equal-pay cases to employers to prove that differences in pay are sex-based and are related to job performance.
Wage-and-hour claims already are the most difficult for employers to handle. This legislation would increase this difficulty and further underscore employers’ need to be proactively vigilant with wage-and-hour compliance.
7. Employee Free Choice Act (EFCA). EFCA would eliminate secret-ballot elections for union representation and provide for binding arbitration for first-contract collective-bargaining agreements. Next to President Obama’s drive for health care reform, EFCA is the most controversial legislation the Democrats are putting forth.
Because of this controversy, and the hits they have taken during the health care debate, I do not think they will push for EFCA passage this year. And, without a big push from its supporters, I don’t see it becoming law.
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