When Massachusetts Republican Scott Brown 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 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 important employment law initiatives pending in Congress, and what they could mean for your business if they become law. I’ve ranked these proposals in order of the likelihood that they will pass this year—from most likely to least.
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 rewrite your EEO policies and train your supervisors to be more aware of issues that affect gay, bisexual and transgendered people. Plus, you’ll need to include these issues in all EEO and harassment training.
2. Protecting Older Workers Against Discrimination Act. The U.S. Supreme Court ruled last year in Gross v. FBL Fin. Servs., that there’s no such thing as a “mixed motive” under the Age Discrimination in Employment Act (ADEA). Thus, to succeed on a federal disparate treatment age-discrimination claim, employees must now prove that age was the only cause of their firing, demotion or other adverse action.
This legislation would overturn the Gross case. It would permit an employee 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 win age bias cases. The result would 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 advance their cause to have more American workers gain access to paid sick leave. This bill would require businesses with 15 or more employees to provide employees with at least 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 would expand the coverage of the FMLA to employers with 25 or more employees (currently 50), and would expand the reasons employees could take 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 and would limit your ability to manage and schedule employee’s working time.
5. Arbitration Fairness Act. President Obama recently signed a law that prohibits employers that have contracts with the federal government worth $1 million or more from requiring arbitration for certain Title VII discrimination claims.
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 ban mandatory arbitration for 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.
Because EFCA is so controversial, don’t expect the Democrats to push hard for EFCA passage this year. And, without a big push from its supporters, I don’t see it becoming law.
Note: These proposals and their potential consequences will be explored deeper at the Labor and Employment Law Advanced Practices (LEAP) Symposium in April.
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