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The Obama years: 4 predictions for employment law circa 2012

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in Discrimination and Harassment,Employee Benefits Program,Employment Law,FMLA Guidelines,Human Resources,Leaders & Managers,Management Training

President Obama has put forth a significant employment and labor agenda. If he and the Democratic-controlled Congress succeed in passing proposed legislation, the next several years will see the creation of new protected classes, more family leave rights and the re-emergence of labor unions.

Sexual orientation will be a protected class

Under current federal laws, it is not illegal to discriminate in employment on the basis of sexual orientation. Obama seeks to change this omission.

The Employment Non-Discrimination Act would add sexual orientation and gender identity to the litany of classes protected from discrimination in employment by Title VII. Sexual orientation is defined as homosexuality, heterosexuality and bisexuality. Gender identity is defined as transgenderism and other gender-related characteristics without regard to gender at birth, perceived or actual.

In the 6th Circuit, discrimination on the basis of real or perceived gender identity is already illegal as sex discrimination. In Smith v. Salem (378 F.3d 566, 6th Cir., 2004), the 6th Circuit Court of Appeals said: “Sex stereotyping based on a person’s gender nonconforming behavior is impermissible discrimination ...  a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim....”

Paid sick leave, FMLA expansion will pass

Some states already require employers to grant all employees seven paid sick days per year, or a prorated amount for part-time employees. Congress will consider such a federal law this session. It will pass, and Obama will sign it into law.

Obama also favors making certain key changes to the FMLA. He will seek to loosen the definition of “employer” from those with 50 or more employees to those with 25 or more employees. He will also seek to expand the categories of covered leave to include elder care, children’s school activities, domestic violence and sexual assault. It is a safe bet that most, if not all, of those FMLA amendments will become law in the next four years.

Fair Pay Act will pass

In Ledbetter v. Goodyear Tire & Rubber Co., the U.S. Supreme Court held that the statute of limitations for a pay discrimination claim under Title VII begins to run when the pay decision is made, not when the employee discovers the discrimination.

The Lilly Ledbetter Fair Pay Act would reverse that ruling by amending Title VII to provide that “an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.”

In other words, an aggrieved employee in Ohio would have 300 days from the receipt of each alleged discriminatory paycheck to file a Title VII EEOC charge.

It is a safe bet that this amendment will become law by 2012. It passed in the House of Representatives on Jan. 9. The Senate is expected to pass it soon.

For employers, this change will present real practical problems, such as having to keep pay records for the duration of an employee’s tenure.

Employee Free Choice Act faces uphill battle

Under current federal labor law, a union’s recognition begins with an employee petition for representation by a union. In most cases, the process is completed with a secret ballot election. The Employee Free Choice Act (EFCA) would remove the secret ballot election.

Under the EFCA, an employer would no longer have an opportunity to demand a secret ballot election when presented with a majority petition by employees. In other words, a majority of cards will be enough to certify a union. Moreover, once a union becomes certified, if a collective-bargaining agreement is not reached within 120 days, the dispute is submitted to an arbitrator, who will decide upon and impose the parties’ first labor contract.

This law is extremely controversial, as many believe that secret ballot elections are necessary to combat against coercion and intimidation by labor unions. A Senate filibuster blocked this bill on its last consideration. As the Democrats have not reached the super-majority of 60 senators necessary to block a Republican filibuster, this controversial law will face stiff opposition.

Nevertheless, it is not too early for businesses to start planning for the possibility of card-check union recognition. The best defense against a labor union is a combination of positive employee relations, an open door for employees to air grievances and fair and evenhanded management.

If the EFCA becomes law, it will be too late to fight a union once the cards are signed. The only way to combat an organizing drive, especially one that you do not know about, is to proactively make your work environment one that employees will not want to unionize. 

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