Lawmakers on the Hill are considering two employment-related bills that would make changes to the Family and Medical Leave Act and invalidate pre-dispute arbitration agreements.
Currently, the Family and Medical Leave Act allows employees to take up to 12 weeks of unpaid leave from work to care for a new baby or provide care for a spouse, child under the age of 18, or parent with a serious health condition. Introduced in both the House and the Senate, the Family and Medical Leave Inclusion Act would expand coverage of the FMLA to allow workers to take time off to care for a same-sex spouse, domestic partner, parent-in-law, grandparent, grandchild, sibling, adult child, and children of a domestic partner with a serious health condition. The proposal would also amend federal civil service law to apply the same leave allowances to federal employees.
“Regardless of the make-up of one’s family, all employees should be given the same rights to care for a sick loved one in a time of need,” Sen. Dick Durbin (D-Ill.), the Senate sponsor of the legislation, said in a statement. “For 20 years, we have had a law that provides unpaid leave for families in crisis. As families change, so should the laws designed to help them.”
The Family and Medical Leave Inclusion Act is currently before the Senate Committee on Health, Education, Labor, and Pensions; in the House it is being considered by the Committees on Education and the Workforce, House Administration, and Oversight and Government Reform.
In a second employment-related bill, Sen. Al Franken (D-Minn.) proposed the Arbitration Fairness Act of 2013 which would amend the Federal Arbitration Act to invalidate a pre-dispute arbitration agreement in a number of areas, including employment disputes.
The legislation would overrule a 2011 decision from the U.S. Supreme Court in AT&T Mobility v. Concepcion, where the justices ruled that the FAA preempted a state law ensuring the availability of classwide consumer arbitration.
Or, as the findings section of the bill states, a “series of decisions by the Supreme Court of the United States have interpreted the [FAA] so that it now extends to consumer disputes and employment disputes, contrary to the intent of Congress. … Most . . . employees have little or no meaningful choice whether to submit their claims to arbitration. Often . . . employees are not even aware that they have given up their rights. . . . Mandatory arbitration undermines the development of public law because there is inadequate transparence and inadequate judicial review of arbitrators’ decisions.”
After being read twice, the bill was referred to the Committee on the Judiciary.
Sen. Franken previously introduced the measure in the 2011 congressional session and prior versions have been proposed since 2007; all have stalled in Committee and failed to even get to a vote.
To read the Family and Medical Leave Inclusion Act, click here.
To read the Arbitration Fairness Act, click here.
Why it matters: Although the bill to amend the FMLA has garnered support from several employee rights organizations (including the National Association of Working Women, the Human Rights Campaign, and the Gay and Lesbian Advocates and Defenders) and enjoys the sponsorship of eight lawmakers in the Senate and 17 in the House, the odds of passage seem low. Similar legislation seeking to include additional family members to FMLA coverage has been introduced in each session of Congress since 1999 but the law has yet to be amended since its enactment in 1993. Sen. Franken’s anti-arbitration proposal faces comparable problems. Despite support from groups such as the National Employment Lawyers Association, the ACLU, and the AFL-CIO, prior incarnations of the bill went nowhere, in part due to staunch opposition from the U.S. Chamber of Commerce and other business groups.