PENDING LEGISLATION

Comprehensive Immigration Reform Act

If enacted, such legislation would, among other things, create a legalization program for undocumented workers and enhance employment verification programs.

Employee Free Choice Act (Traditional Labor)

Would give workers the right to form union by majority signing authorization cards.

Employee Misclassification Prevention Act

Would amend the Fair Labor Standards Act (FLSA) to penalize employers who mis-categorize workers as independent contractors rather than employees. Such legislation would force employers to categorize more workers as employees, thus subjecting them to income tax withholding and deductions for various employment related taxes. It would subject the employers to organization by unions and cover the affected employees with employment-related statutes such as Title VII, the Age Discrimination in Employment Act (ADEA), etc. Such legislation would allow these "new" workers to be added to the "jobs" rolls.

Employment Non-Discrimination Act (ENDA)

Would add sexual orientation to the list of protected categories covered under federal law.

Healthy Families Act

Would require employers to accrue seven (7) days of paid sick leave annually to full time employees.

Paycheck Fairness Act

Would make compensatory and punitive damages available in gender pay discrimination cases and would make it easier for plaintiffs to organize class actions by allowing "opt-out" method.

ADMINISTRATIVE ACTION

Department of Labor - Administrator's Interpretation Letters

On its own initiative, the Obama Administration has been issuing Interpretation Letters advancing its interpretation of certain regulatory language. In most cases, these Interpretations expand the application of existing regulations. Outlook: These Interpretations are likely to continue for the remainder of the Obama Administration.

EEOC and OFCCP

With addition of new employees under various federal funding programs, these agencies have become more active in enforcing anti-discrimination laws and regulations against private employers. Outlook: The Administration has largely acted through Executive Orders, rather than through legislation. Absent the prospect of "helpful" legislation, this activity will expand even if funding is reduced.

NLRB

The Obama Administration has appointed strong labor-oriented members to the National Labor Relations Board (NLRB), including two via recess appointment. Outlook: The current five-member Board still has one vacancy, and the chairmanship and one recess appointment will expire in 2011, forcing the Administration to obtain Senate consent for nominees or make more recess appointments. The results of the midterm elections make obtaining consent problematic for the Administration, inhibiting it from appointing pro-labor nominees to the Board. Earlier this year, the U.S. Supreme Court established that the Board cannot act with only two members.

OSHA

Workplace safety is a major focus of this Administration, which has been utilizing all available tools at its disposal (and creating new ones, i.e., Interpretation Letters) to pursue its agenda. Outlook: Expect this trend to continue.