A. Strengthening Anti-Discrimination Protections
Lilly Ledbetter Fair Pay Act of 2009
- Essentially strips the statute of limitations with respect to compensation discrimination cases under Title VII, the Rehabilitation Act, the ADA, and the ADEA.
- Restarts the clock for an employee to file a claim with the EEOC every time an employee receives a paycheck “affected” by a discriminatory compensation decision, regardless of when it occurred.
- Employee must still file an administrative charge within 180/300 day window.
- Limits back-pay to two years prior to charge.
Signed into law in January 2009; retroactive to May 28, 2007.
Paycheck Fairness Act
- Would amend the FLSA “to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex.”
- In effect, would require employers trying to rebut presumption of pay discrimination to establish that the factor responsible for the pay differential: “(i) is not based upon or derived from a sex-based differential in compensation; (ii) is job-related with respect to the position in question; and (iii) is consistent with business necessity.”
- The employee would still prevail if they show that there is an “alternative employment practice” that would serve the same purpose without producing the pay differential.
- Would change class certification scheme for pay-discrimination claims from opt-in (FLSA) to opt-out (Rule 23).
Passed the House in January 2009; was received in the Senate in January 2009, but has not gone to a vote.
Employment Non-Discrimination Act
- Would provide federal protection (akin to protection afforded persons based on gender, race, religion, age, etc.) to persons because of their sexual orientation, gender identity, or both.
Inactive; reintroduction in the 111th Congress is anticipated.
Equal Remedies Act
- Would remove the current caps on punitive damages under Title VII and the ADA.
Inactive; reintroduction in the 111th Congress is anticipated.
B. Repositioning Work/Family Balance
Working Families Flexibility Act
- Would give employees the right to request flexible work options, including the number of hours the employee is required to work; the time the employee is required to work; and the location of the work.
- Within 14 days after employee requests change, employer would be required to meet with employee and then produce/deliver a written decision within 14 days after meeting.
- Employer’s decision must identify cost of change, overall financial resources involved, effect of change on employer’s business, etc.
- Upon denial, employee could request reconsideration, and employer would have to meet again and issue a final decision in writing, stating the grounds for denial. An employee could then file a complaint with the DOL.
- Penalties and damages would be available for infractions.
Reintroduced March 3, 2009; pending.
FMLA (possible expansions)
- Would allow employees to take leave to address effects of domestic violence; would provide employees up to 24 hours of unpaid leave per year to attend school activities or to take family members to doctor for regular medical or dental appointments.
- Another bill would require a Family Leave Insurance Program, into which employees and employers would pay shared premiums in order to fund paid FMLA leave for workers.
Introduced in 2007 and again in 2008; reintroduction in the 111th Congress is anticipated.
Healthy Families Act
- In its current form, would require that employers provide 7 paid sick days to any employee who works more than 30 hours a week, with a prorated annual amount for employees working less than 30 hours; accrued sick leave could carry over from year to year.
Introduced in 2005 and again in 2007 with then-Senator Obama as a co-sponsor; reintroduction in the 111th Congress is anticipated.
Family-Friendly Workplace Act
- Would amend the FLSA to allow private-sector employers to offer employees the option of receiving “comp time” PTO, rather than overtime premium payments, at a rate of 1.5 hours of PTO per “overtime” hour worked. Employees would have to consent to the swap in writing.
- To be eligible, employees must have worked at least 1,000 hours in the prior 12 months; the maximum accrual is 160 hours of “comp time”; employers would have to pay out by January 31 of a given year all “comp time” not used in the prior year; and all “comp time” would have to be paid out at termination.
Introduced February 10, 2009; pending.
C. Reinvigorating Unions
Employee Free Choice Act (EFCA)
- In its current form, would be the most sweeping revision to national labor law in over 50 years.
- Would allow unionization of a group of employees upon the union gathering signed cards from more than 50% of the members of that group, without the benefit of a secret ballot election; would require employers to submit to binding arbitration if they could not reach a first contract with the new union after 90 days of bargaining and 30 days of mediation (and such contract would be binding for 2 years); and would impose new, increased penalties for unfair labor practices.
Introduced in 2003 and again in 2007 with then-Senator Obama as a co-sponsor; reintroduced in both the House and Senate on March 10, 2009.
Secret Ballot Protection Act
- This is the antithesis to EFCA and was, in fact, introduced before EFCA. It would require a secret ballot election and would preclude voluntary recognition of a union by an employer (something that is allowed currently).
Introduced February 25, 2009; pending.
Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act
- Would narrow the 60-year-old definition of “supervisor” under the NLRA to eliminate “assign” and “responsibility to direct” from that definition. Doing so would move thousands of front line and low-level supervisors within the protection of the NLRA and allow them to be forcibly included in unionized bargaining units.
Introduced in 2007; reintroduction in the 111th Congress is anticipated.
D. Executive Orders
Economy in Government Contracting
- Denies federal contractors reimbursement for funds spent on activities designed to persuade employees not to join a union.
Effective January 30, 2009.
Notification of Employee Rights Under Federal Labor Laws
- Requires federal contracts (except purchases under $100,000) to require contractors to post a notice informing employees that they have a right to decide whether to join a union.
Effective January 30, 2009.
Non-Displacement of Qualified Workers Under Service Contracts
- Requires all federal contracts (in excess of $100,000) to include a provision requiring any contractor who assumes the contract from a previous contractor to retain that previous contractor’s qualified employees.
Effective January 30, 2009.
Use of Project Labor Agreements (PLAs) for Federal Construction Projects
- Allows the Government to require PLAs on large-scale federal construction projects (exceeding $25 million). A PLA is defined as “a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project.”
Effective February 6, 2009.
E. Other Putative Changes
Federal Oversight, Reform, and Enforcement of the WARN Act of 2007 (FOREWARN)
- Would amend the WARN Act by expanding scope of “employer” to businesses employing 50 or more full-time employees (rather than 100); expanding scope of “plant closing” from 50 employees down to 25; expanding “mass layoff” to 100 employees (rather than 500); and requiring 90 days advance notice (up from 60). It also would expand the scope of notice (employers would have to inform more people / entities of intended layoffs), and it would increase fines.
Introduced in September 2007; reintroduction in the 111th Congress is anticipated.
Employee Misclassification Prevention Act
- Would step up enforcement regarding misclassification of independent contractors; increase penalties; and impose civil fines of $10,000 per violation for employers who “repeatedly or willfully” misclassify workers. Would also require employers to notify “non-employees” in writing of: (a) their classification; (b) the significance of the classification (that their rights to “wage, hour, and other labor protections” depend on proper classification); and (c) their right to contact the DOL if they need further information.
Introduced in House in May 2008 and in Senate in September 2008 with then-Senator Obama as a co-sponsor; reintroduction in the 111th Congress is anticipated.