Legislative Update - Summer 2010
Employers Not Out of the Woods Yet: A Reinvigorated Congress Takes Aim at Strengthening Employee Rights
Following President Obama’s election, many pundits predicted that Congress would transform employment law by granting employees unprecedented rights and saddling employers with an ever-increasing burden of regulations and potential liability. Now that the economy appears to be on the mend, healthcare reform is finally settled, and the related gridlock is starting to loosen, it seems Congress is poised to launch this predicted push toward reforming employment law. Although only a few of the following bills are likely to ultimately become law, all are the result of this revived push by Congress and highlight the key issues that are currently on Congress’s radar screen. Note: All predictions are subject to change with the upcoming mid-term elections, when the respective majorities in the House and Senate will likely change. Specifically, 37 seats in the Senate and all seats in the House are up for grabs in the November 2, 2010 election.
Employment Non-Discrimination Act (ENDA) (H.R. 3017, S. 1584)
Current status of law: While there are some state statutes and local ordinances providing such protection (including in California, Oregon, New Jersey, and Colorado), there is currently no federal law prohibiting discrimination in the context of employment decisions on the basis of an individual’s sexual orientation or gender identity.
What will change: Under the ENDA, employers would no longer be able to make employment decisions based on an individual’s perceived or actual sexual orientation or gender identity. The bill is designed to add protections for this class of individuals identical to those currently granted under Title VII (which prohibits discrimination in employment decisions on the basis of gender, race, color, national origin, or religion). As with other forms of discrimination prohibited by the federal government, the EEOC would have the power to issue regulations and enforce the ENDA.
Why you care: The ENDA would add another protected class that employers must be aware of when making employment decisions. Consequently, it would increase employers’ exposure to additional regulation by the EEOC and potential liability from private civil actions. Employers would also need to update their EEO and anti-harassment policies and training materials to include sexual orientation and gender identity as protected classes.
Likelihood of becoming law: The bill passed in the House in 2007, and is likely to pass again in the near future. In fact, House Speaker Nancy Pelosi has said she believes the bill will come to the House floor “pretty soon.” President Obama has indicated that he will sign the bill if it makes it to his desk. That leaves the Senate as the final hurdle for the ENDA to clear. It is hard to predict exactly what will happen here, as partisan disputes seem to have reached unprecedented heights. The ENDA will likely follow healthcare and immigration as a highly contested and hotly debated topic on the Senate floor.
Equal Access to COBRA Act (S. 3182)
Current status of the law: The Consolidated Omnibus Budget Reconciliation Act (COBRA) allows qualifying employees to extend coverage under their employer’s group health insurance plan for up to 36 months after their termination. These benefits are currently only available to the affected employee and the employee’s spouse and dependent children.
What will change: COBRA benefits would be extended to same-sex domestic partners who are covered under the employer’s group health insurance plan.
Why you care: The bill would potentially add individuals to employers’ group health plans and result in increased costs, including employer-paid premiums.
Likelihood of becoming law: The bill has been introduced to committee, but there is no indication that it will be fast tracked as a priority in the Senate. Despite not being considered very controversial, it is too early to predict the bill’s chances of becoming law.
Paycheck Fairness Act (H.R. 12, S. 182)
Current status of the law: The Equal Pay Act (EPA) became law in 1963, prohibiting discrimination on account of sex in the payment of wages by employers. Class members must affirmatively opt-in to any action through written consent. Employers are not liable under the EPA if a discrepancy in pay is due to “any factor other than sex.”
What will chang: The Paycheck Fairness Act would amend the EPA by narrowing an employer’s affirmative defense for a pay discrepancy between men and women from “any factor other than sex” to being job related and consistent with business necessity. The bill would also allow for previously unattainable compensatory and punitive damages, as well as opt-out class actions.
Why you care:If passed, the Paycheck Fairness Act would make gender-based pay discrimination claims both more prevalent and more difficult to defend. Thus, employers should carefully review their pay practices, making sure that all pay decisions are job related and consistent with business necessity. And as always, employers should ensure that no glaring discrepancies in pay based on gender exist within their workforce.
Likelihood of becoming law:The Paycheck Fairness Act has been “on deck” since breezing through the House alongside the Lilly Ledbetter Fair Pay Act (which became law in January of 2009). Now that things on the economic and healthcare fronts have calmed, the Paycheck Fairness Act is expected to get a strong push for Senate consideration later this year. If it is passed in the Senate, President Obama has indicated he will waste little time in signing it into law.
Healthy Families Act (H.R. 2460, S. 1152)
Current status of the law:There is currently no federal or state law that requires employers to provide paid sick leave to employees.
What will change:The Healthy Families Act would mandate that employers give their employees at least one hour of paid sick leave for every 30 hours on the job. The leave would be capped at seven paid sick days a year per employee. Employees would be entitled to use the paid sick leave to care for themselves or certain family members.
Why you care:This bill will make paid sick leave mandatory and could increase the amount of paid sick time an employer offers its employees. Depending on the size and current sick leave policy of the employer, the costs and logistical changes resulting from this legislation could be significant.
Likelihood of becoming law:This bill was introduced in both the House and Senate in March of 2009 and has not made its way out of committee in either forum. Due to a relative lack of support, stemming in no small part from the perceived oppressive nature of the bill to many employers, the bill is one of the least likely to be passed on this list.
Emergency Influenza Containment Act (H.R. 3991)
Current status of the law:There is currently no law governing this area.
What will change:Employers would be required to give employees up to five paid sick leave days a year if an employer “directs” or “advises” them to stay or go home due to contagious illness. If employers already provide at least five paid sick days to full-time employees (and part-time employees on a pro rata basis), they would be exempt from the law. The employer can end the paid sick leave at any time by informing the employee that they may return to work. Employees cannot be fired, disciplined, or retaliated against for following the employer’s directive to stay or go home.
Why you care:Similar to the Healthy Families Act, the bill could increase the amount of paid sick time employers offer employees. The impact of the Emergency Influenza Containment Act appears to be less significant, however, as the employer retains discretion as to when employees can use the paid sick leave.
Likelihood of becoming law:Although this bill is more likely to pass than its companion Healthy Families Act, it is still considered a relative long shot due to more pressing congressional agenda items.
Pandemic Protection for Workers, Families, and Business Act (H.R. 4092, S. 2790)
Current status of the law:See the Healthy Families Act and Emergency Influenza Containment Act above.
What will change:This bill is very similar to the Healthy Families Act. It would require employers to give full-time employees seven paid sick days a year (and part-time employees an equivalent, pro-rated amount). The paid sick days could be used by the employee to obtain medical diagnosis or care for a contagious illness for the employee or employee’s child, or at the direction of a health care provider, to avoid spreading the illness to co-workers (or to care for a child directed to stay home to avoid contaminating classmates). The bill also allows an employee to use paid sick leave to obtain preventive care for the employee or employee’s child.
Why you care:For identical reasons to the Healthy Families Act and Emergency Influenza Containment Act – an increase in the amount of paid sick time employers are required to offer employees.
Likelihood of becoming law:Not very likely for the same reasons discussed above regarding the Healthy Families Act.
Protecting America’s Workers Act (H.R. 2067, S. 1580)
Current status of the law:The Occupational Safety and Health Act (OSH Act) mandates safe and healthful working conditions by authorizing enforcement of workplace standards developed under the Act.
What will change:Penalties for violations of the OSH Act will increase dramatically. On the top end, fines for repeat violations that lead to a fatality will nearly quadruple, going from $70,000 to $250,000 per incident. Additionally, the criminal burden of proof for serious violations would be lowered from “willful” to “knowing” and employers and top management could find themselves individually liable for workplace death, facing jail time up to 10 years. Protections for whistleblowers under the OSH Act would also be increased.
Why you care:With significantly increased penalties and individual management employees potentially facing extensive jail time, this would be a huge paradigm shift in the OSHA world.
Likelihood of becoming law:Although, in the wake of the West Virginia mine tragedy, there is a lot of momentum generally behind the workplace safety movement, this bill has been introduced several times previously and has never made it to a vote. A similar result is expected this time around.
Equal Employment for All Act (H.R. 3149)
Current status of the law:The Fair Credit Reporting Act (FCRA) regulates the collections, dissemination, and use of consumer information. Currently, employers can obtain and rely upon information obtained in consumer reports – including consumer credit information – to make employment decisions.
What will change: The bill amends the FCRA to prohibit a non-governmental or financial employer from obtaining or using a consumer report or an investigative consumer report to make employment decisions, if the report contains information that bears upon the consumer’s creditworthiness, credit standing, or credit capacity.
Why you care:If the bill becomes law, consumer reporting agencies will likely take steps on their own to remove information regarding an applicant’s credit history from the reports they provide to employers. Nevertheless, employers still need to be careful not to rely impermissibly on any consumer report that contains credit history information. If the bill becomes law, employers who currently procure consumer reports to screen applicants before making hiring decisions will have to change the manner in which they conduct background checks, as it will no longer be permissible to rely upon information regarding an applicant’s credit history in making hiring decisions.
Likelihood of becoming law:Although several similarly-minded bills were recently introduced on the state level, it appears unlikely that there will be much movement with the federal version any time soon.