Monday, January 11, 2010

Something wicked this way comes – Congress’s 2010 employment law agenda

If political pundits are to be believed, the Democrats’ super-majority will go the way of the dodo in November’s mid-term elections. Without a 60-member super-majority, it will be that much more difficult for the current administration to make good on many of 2008’s campaign promises, which makes this year key for Democratic plans to revamp our employment laws. The Dems have an ambitious employment law slate. The following are the key employment law initiatives pending in Congress, ranked in order of the likelihood of passage this year, along with a discussion of what this will mean for your business if each passes (the full text of the legislation is hyperlinked).

1. Employment Non-Discrimination Act – ENDA would prohibit employers from discriminating or retaliating against actual or perceived gay, bisexual, or transgender employees or applicants. If this bill passes, you will have to cease discriminating on the basis of these classes, re-write your EEO policies, train your managers and supervisors to be more aware of issues that affect gay, bisexual, and transgendered people, and include these issues in all EEO and harassment training.

2. Protecting Older Workers Against Discrimination Act – In Gross v. FBL Fin. Servs., the U.S. Supreme Court held that there is no such animal as a mixed motive under the ADEA, and that to succeed on a federal disparate treatment age discrimination claim, a plaintiff must prove that age was the only cause of the challenged action. This legislation would overturn this case, and permit a plaintiff to establish age discrimination by demonstrating that age was a “motivating factor” for the adverse action. This bill will make it easier for plaintiffs to prove age discrimination, and make it more difficult for employers to defeat age claim on summary judgment. The result will be higher defense costs, more jury trials, and increased settlement values for federal age claims.

3. Healthy Families Act – The swine flu pandemic helped employee advocates prove their point that America’s workers’ need greater access to paid sick leave. This bill would require businesses with 15 or more employees to prove employees seven days of paid sick leave per year. If this bill passes, employers will have to rewrite employee leave policies to provide the required sick leave.

4. FMLA amendments: Family and Medical Leave Enhancement Act and Family Fairness Act – The former would expand the coverage of the FMLA to employers with 25 or more employees, and would expand the reasons for FMLA leave to include a child’s grandchild’s educational or activities extracurricular, or a child’s or elderly relative’s medical appointments. The latter would expand the FMLA’s coverage to include part-time employees. Passage of either of these bills would require employers to revisit and rewrite FMLA leave policies. Along with the Healthy Families Act, these amendments would further limit the ability of employers to manage and schedule employees’ working time.

5. Arbitration Fairness Act – The recent extension of the federal COBRA subsidy contained a provision that prohibits arbitration of Title VII claims for federal contractors who receive more than $1 million. This legislation would void all pre-dispute arbitration agreements that mandate arbitration of employment disputes, except for those contained in collective bargaining agreements. The enactment of this bill would require litigation of all employment disputes (a result, by the way, that I am not entirely opposed to).

6. Paycheck Fairness Act – This bill would provide for compensatory and punitive damages for FLSA violations, and would shift the burden in Equal Pay cases to employers to prove that differences in pay are sex-based and are related to job performance. Wage and hour claims already are the most difficult for employers to handle. This legislation would increase this difficulty, and further underscore employers’ need to be proactively vigilant with wage and hour compliance.

7. Employee Free Choice Act – Enough’s been written about the EFCA. If you are unaware of it, the EFCA would eliminate secret ballot elections for union representation and provide for binding arbitration for first-contract collective bargaining agreements. Next to President Obama’s universal health care, the EFCA is the most controversial legislation the Democrats are putting forth. Because of this controversy, and the hits they have taken during the health care debate, I do not think the EFCA will be pushed this year. And, without a big push from its supporters, I don’t see it becoming law.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or

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