Newly elected members of Congress are in Washington D.C. for freshmen orientation and to be assigned offices; the members of the 112th Congress have just weeks left before the official end to their lame duck session. A number of bills introduced in the 112th Congress that did not result in legislation likely will be re-introduced in the 113th Congress, beginning in January. Following are a few that we may see again.
Employment Non-Discrimination Act
The Employment Non-Discrimination Act (“ENDA”) would amend Title VII of the Civil Rights Act to prohibit employers with at least 15 employees and other “covered entities” from discriminating against employees on the basis of sexual orientation or gender identity. A covered entity would be required to post a notice of employees’ rights under ENDA. Corporations, associations, educational institutions or societies exempt from the religious discrimination provisions of Title VII of the Civil Rights Act also would be exempt from ENDA.
Unlawful employment practices would include:
- Failing or refusing to hire or discharging or otherwise discriminating against an individual with respect to the compensation, terms, conditions or privileges of employment because of the individual’s actual or perceived sexual orientation or gender identity.
- Limiting, segregating or classifying employees or applicants in any way that would deprive or tend to deprive an individual of employment or otherwise adversely affecting the status of the individual as an employee because of the individual’s actual or perceived sexual orientation or gender identity.
- Retaliating against an individual for opposing an unlawful employment practice, making a charge, testifying, assisting or participating in an investigation, proceeding or hearing under ENDA.
Paycheck Fairness Act
The Paycheck Fairness Act would amend the Fair Labor Standards Act of 1938 to prohibit discrimination in wages on the basis of sex, race or national origin. Employers would have to provide equal pay for jobs that require comparable skill, effort, responsibility and working conditions. Employers would be able to differentiate wage rates based on such bona fide factors as education, training or experience, and maintain seniority and merit systems, and systems that measure earnings by quantity or quality of production. Employers would be prohibited from reducing employees’ wages to achieve pay equity.
Healthy Families Act
The Healthy Families Act would require employers with at least 15 employees to provide employees with up to 56 hours, or seven days, of paid sick leave each year. Employees would begin accruing hours when they began working for the employer and could begin using the accrued time 60 days after their first day of work. Paid sick time would carry over from year to year, but employers would not have to provide more than 56 accrued hours at any time. In addition, if an employee is separated from employment with an employer and is rehired within 12 months, the employer must reinstate the employee’s previously earned paid sick time.
Employees would be entitled to use paid sick time:
- for their own physical or mental illness, injury, or medical condition;
- to obtain medical care, including preventive care; and
- to care for, or help obtain medical care for, a child, parent, spouse, or “any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”
The bill also would provide paid sick time for absences related to domestic violence, sexual assault, or stalking, including time spent seeking medical attention, obtaining counseling services or relocation assistance, and pursuing legal action.
Employers with existing paid leave policies that are equivalent to, or more generous than, those included in the proposed legislation would not have to change their policies.
The proposed legislation also includes posting requirements and prohibits employers from:
- interfering with, restraining, or denying the exercise of any rights under the Healthy Families Act;
- discharging or discriminating against any individual, including a job applicant, for exercising, or attempting to exercise, any rights under the Healthy Families Act;
- considering the taking of paid sick time as a “negative factor” in any employment action;
- counting the paid sick time under a no-fault attendance policy or any other absence control policy; or
- retaliating against employees who take paid sick time, oppose any unlawful practice, or are involved in proceedings under the Healthy Families Act.
Comprehensive Immigration Reform Act
The Comprehensive Immigration Reform Act would overhaul the U.S. immigration system. Among other things, the bill would create “Lawful Prospective Immigrant” (“LPI”) status for non-criminal undocumented individuals living in the U.S. since June 1, 2011. Such individuals would be required to submit biometric and biographical data, undergo security and law enforcement checks, and pay a $500 fine plus application fees. LPI status would last four years and could be extended, and would include work authorization and permission to travel abroad. Immediate family members also would be eligible for LPI status. Undocumented individuals could apply for LPI status even if they are in deportation proceedings at the time of application or are subject to an outstanding removal order. The bill includes a system to transition from LPI status to Lawful Permanent Residency.
The bill incorporates the “Dream Act,” which would create a path to legal status for individuals who were brought to the U.S. in an undocumented status as children, provided they meet certain criteria and enroll in college or the U.S. military. The bill also incorporates the “AgJOBS” bill to provide a path to permanent residency for farm workers and revises agricultural employer sponsorship requirements. It revises unlawful presence bars to immigration, as well, so that individuals with family ties are not permanently barred from the U.S.
The bill includes new employment requirements. It would require all employers to use a newly-created verification system within five years. The bill mandates creation of a new fraud-resistant, tamper-resistant Social Security card and requires workers to use such documentation to prove authorization to work. It also would create a voluntary pilot program using biometric identifiers to demonstrate work authorization.