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.

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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 jth@kjk.com.

Ohio House passes bill banning sexual orientation discrimination; fight moves to Senate

In yesterday's Columbus Dispatch, Jim Siegel reports that the Ohio House passed a bill that would prohibit employment discrimination based on sexual orientation by a vote of 53-39. If enacted, Ohio would join 20 other states with similar prohibitions. 17 Ohio cities, including Cleveland, already have similar laws.

The legislation would add sexual orientation and gender identity to the list of protected classes against whom employers cannot discriminate. The bill defines sexual orientation as “actual or perceived, heterosexuality, homosexuality, or bisexuality.” It defines gender identity as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.” Other key provisions include:

• A limitation to employers with 15 or more employees. All other forms of discrimination apply to employers with 4 or more employees.
• A carve out for religious groups.
• Permission for employers to deny access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with an employee’s gender identity.
• No requirement that employers construct new or additional facilities to accommodate employees’ sexual orientation or gender identity.
• No affirmative action requirements.
• Employers can enforce otherwise legal dress codes and grooming standards, provided that the employer permits employees who have undergone or are undergoing gender transition to adhere to the same dress code or grooming standards as their new gender.

The bill now moves on to the Ohio Senate, where its Republican majority promises a fight. According to Senate President Bill Harris, “I talk to business people all the time, and they’re saying it’s not an issue.” So let me get this straight. It’s acceptable to oppose this bill because businesses are self-reporting that they are not discriminating. Isn’t that akin to asking a plantation owner in 1863 if he wants to abolish slavery?

If we want to be a state that is attractive to progressive businesses, we need to pass progressive legislation. Let’s hope the Senate gets its act together and sends this bill to Governor Strickland for his signature.

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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 jth@kjk.com.

Proposed law would grant working moms breastfeeding rights

Last year, I wrote that even though Ohio has one of the country’s most liberal breastfeeding laws, it likely does not protect a mom’s workplace lactation rights. Moreover, few courts have protected breastfeeding and expressing breast milk under current workplace sex discrimination laws.

A potential new federal law could change all that. Identical bills have been introduced in the House and Senate that would require employers to accommodate working moms’ breastfeeding needs at work. The Breastfeeding Promotion Act [PDF] would make three significant changes to existing laws:

• Amend Title VII to include lactation (breastfeeding or the expression of milk) in the definition of sex discrimination.

• Amend the Fair Labor Standards Act to require that employers provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth”, and make “reasonable efforts to provide a place, other than a bathroom, that is shielded from view and free from intrusion” for an employee to express breast milk.

• Amend the Internal Revenue Code to provide a tax credit for employers that provide an appropriate workplace environment for employed moms to breastfeed or express milk.

It’s difficult to say how much traction the BPA has, but this bill is definitely one that warrants watching.

[Hat tip: World of Work]

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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 jth@kjk.com.

Ohio Senate considers compensatory time – a sensible alternative to paid sick leave

As the number of reported swine flu cases approaches 1,000 globally (a staggeringly low 0.00002% of the world’s population), Judith Warner, in the April 30 New York Times, opines that the current pandemic is exactly what we need to spur this country to adopting national mandatory paid sick leave for employees:

Our workplace policies have long been unsuited for our times…. And they’ve never looked more anachronistic than today, with more and more families forced to live on one income, and a possible pandemic in the making.

The Healthy Families Act, which would grant most workers seven paid sick days a year to care for themselves or sick family members, is soon to be re-introduced in Congress. I think it’s fair to say that it’s an idea whose time has come.

Let me suggest a real alternative to mandating that all employers grant employees paid sick days. Under current federal and Ohio wage and hour laws, it is illegal for most employers to grant non-exempt employees who work more than 40 hours in a work week compensatory time in lieu of overtime pay. Ohio Senate Bill 17 seeks to change this prohibition.

Senate Bill 17 would amend Ohio’s current wage and hour laws to “afford to private sector employers the option to offer and to employees the option to accrue and use compensatory time off.” It would give employers the ability to offer employees the choice to take compensatory time (i.e., banked time-off to use in the future) instead of being paid an overtime premium for hours worked in excess of 40 in a week. Other notable feature of this legislation include:

• An employer cannot require any employee to choose to receive compensatory time as a condition of employment, or require the use of any accrued compensatory time.
• The employee must voluntarily request to receive compensatory time.
• The request is not valid unless it is in writing or some other verifiable statement.
• The employee can withdraw the request at any time.
• Compensatory time accruals are capped at 240 hours per year.
• At the end of each year, employees must be paid an overtime rate for any unused compensatory time.

Because this change would only affect Ohio’s wage and hour laws, it would only reach those employers small enough not to covered by the federal Fair Labor Standards Act (generally those businesses with less than $500,000 in annual sales). This law would give those small businesses the ability to offer more flexible work schedules to retain or attract employees. This balanced law not only deserves serious consideration in Ohio’s legislature, but also on the federal level. If you are interested in voicing your support for this important piece of legislation, please call, write, or email your State Senator.

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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 jth@kjk.com.

3rd Circuit decision illustrates need for the Civil Rights Tax Relief Act

Damages in discrimination cases come is several shapes – economic damages for lost wages (back pay and front pay), compensatory damages, emotional distress damages, punitive damages, and attorneys’ fees. Because back pay and front pay represents lost wages, no one disputes whether the government should receive its fair share via income tax on those amounts.

There are two major sources of other taxes that apply in these cases:  taxation of damages for noneconomic harm; and taxation of lump-sum settlements or awards in one year. Critics argue that the former should not be taxed because it does not represent “wages.” Moreover, if the IRS does not tax noneconomic damages received on account of physical injury, why does it differentiate noneconomic damages received in discrimination cases. The latter greatly increases one’s tax liability by placing the employee in a higher-than-normal tax bracket based on the lump sum.

For employers, this tax treatment makes the settlement of discrimination disputes significantly more difficult. Because employees take tax liability into account when settling cases, the anticipated amount of tax to be paid drives up the cost of settlement. Often, this added cost is a serious impediment to the resolution of cases. Settlements that fall apart costs employers even more, through additional defense costs and the payments of judgments or even higher settlements down the road.

Eshelman v. Agere Systems (3d Cir. Jan. 30, 2009) illustrates this problem in action. In Eshelman, the Third Circuit grossed-up an employee’s back pay award to ensure that the employee did not face any added tax liability as a result of the lump sum award:

We hold that a district court may, pursuant to its broad equitable powers granted by the ADA, award a prevailing employee an additional sum of money to compensate for the increased tax burden a back pay award may create. Our conclusion is driven by the “make whole” remedial purpose of the antidiscrimination statutes. Without this type of equitable relief in appropriate cases, it would not be possible “to restore the employee to the economic status quo that would exist but for the employer’s conduct.” …

[A]n award to compensate a prevailing employee for her increased tax burden as a result of a lump sum award will, in the appropriate case, help to make a victim whole. This type of an award … represents a recognition that the harm to a prevailing employee’s pecuniary interest may be broader in scope than just a loss of back pay.

The Civil Rights Tax Relief Act, which had been introduced in both the House and Senate in 2007 but went nowhere, goes a long way to curing the problem of the IRS’s current treatment of discrimination awards, which Eshelman partly illustrates. The CRTRA would amend the Internal Revenue Code to:

1. exclude from gross income non-economic damages in discrimination cases (back pay, front pay, and punitive damages would still be taxable); and

2. allow income averaging for back pay and front pay received from such claims, limiting an employee’s tax liability for the year in which the money is received to the total amount received divided by the number of years it represents.

There has been lots of talk by lots of people about lots of different pieces of employment legislation that will be passed in the coming years. The Civil Rights Tax Relief Act is one change that makes sense for employees and businesses. By lowering employee’s potential tax liability, it decreases settlement values of discrimination cases. It makes cases easier for employers to settle. If Congress is going to focus on passing pro-employee legislation during these trying times for businesses, it should focus on pro-employee legislation that makes some sense for employers as well.

[Hat tip: Daily Developments in EEO Law]

Ledbetter Fair Pay Act likely to be first employment legislation of the Obama Presidency

According to Monday’s New York Times, Congressional Democrats are looking to fast-track the Lilly Ledbetter Fair Pay Act. This should not come as any surprise, given Ms. Ledbetter’s prominent speaking position at last summer’s Democratic convention.

Recall that in Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court ruled that in pay discrimination cases the federal statute of limitations begins to run when the pay-setting decision is made:

Current effects alone cannot breathe life into prior, uncharged discrimination.... Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.

According to the Court, its narrow reading of the statute of limitations “reflects Congress’s strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.” Or, at least prior Congresses, as this Congress will certainly pass the Ledbetter Fair Pay Act.

This law will provide that a new and separate violation occurs each time a person receives a paycheck resulting from “a discriminatory compensation decision.” Thus, each paycheck that reflects an alleged discriminatory pay decision will start a new and distinct limitations period. 

Businesses should brace themselves for longer statutes of limitations for pay discrimination claims. Once the Fair Pay Act becomes law, it will be more difficult for companies to know at what point in time a pay decision can no longer be challenged. This law’s Congressional supporters have spoken of the need for fairness. Fairness, however, works both ways, both for employees and employers. A perpetual statute of limitations for pay discrimination claims fosters a perceived fairness for the former at the expense of the latter.

A labor & employment civics lesson

Today brings us two interesting posts detailing employment law issues to consider on election day. Michael Moore at the Pennsylvania Labor & Employment Blog and Dan Schwartz at the Connecticut Employment Law Blog both nicely summarize some of the key employment law issues that the next president might face.

If you are interested in a decidedly pro-business take on some of these issues, you should also take a look at website of the U.S. Chamber of Commerce, which has detailed information on a variety of workplace issues, including:

• Equal Employment Opportunity
• Absence Abuse and Medical Leave
• Paid Family and Medical Leave
• The Employee Free Choice Act

As we consider some of the more controversial of these initiatives (such as the Employee Free Choice Act), it’s important to remember that a President is but one piece in a complex governmental puzzle. Currently, if you count the two Independent Senators that caucus with the Democrats, the Dems hold a slim 51-49 lead in the Senate. Assuming that Senators Lieberman and Sanders continue to caucus on the left, nine current seats would have to change from red to blue for the Dems to reach the magic number of 60. Recent polling data suggest that the Democrats will certainly get closer to 60 than they are now, but it should prove very difficult to get over that hump.

Why is 60 such an important number? Because that is number needed to make the Democratic majority filibuster-proof. A filibuster is where a senator, or a series of senators, speak for as long as they want and on any topic they choose on the Senate floor. By way of example, Strom Thurmond once spoke for more than 24 straight hours to try to block passage of the Civil Rights Act of 1957. Practically, a filibuster permits one or more senators to derail a vote indefinitely, unless a supermajority (that magic number, 60) invokes cloture, which brings the filibuster to an end.

Because a filibuster poses such a huge risk, its threat is usually enough to derail controversial legislation without the support of at least 60 senators. Thus, if the Democrats don’t reach 60 (or even 58, depending on the inclinations of the two Independents), a Republican minority should be able to block controversial issues such as the Employee Free Choice Act.

On election night, while we watch the states change to red or blue on the electoral college map, it is equally important to follow some of the close Senate races. Without understanding both, one cannot truly decipher what the employment law landscape will look like after January 20, 2009.

A call for the reform of ballot measures

It's so nice when labor and business gets together to make a common sense decision for the betterment of all. Last month, Ohio's labor unions and business organizations compromised on the removal of the Healthy Families Act from November's ballot. Now, Colorado's unions and employers have done the same on its four controversial ballot measures.
The Denver Post reports that labor and management have reached an accord that will remove the following four issues from its ballot:

1. Eliminating "at will" employment and requiring private employers to have a "just cause" with supporting documentation before terminating employees.
2. Mandating that all companies with 20 or more employees provide health insurance for workers and dependents.
3. Removing workers compensation's "exclusive remedy" provision, and permitting injured workers to collect workers comp benefits and sue their employer.
4. Holding corporate officials criminally liable for illegal company activities.

Look, these ballot initiatives are scary. In Ohio, one labor organization only needed 250,000 signatures to place the populist, yet very dangerous, Healthy Families Act on the ballot. A system that can be so easily hijacked by special interests looking to push an agenda needs to be fixed. Supposedly, we elect legislators to enact, and a governor to sign or veto, legislation. They are supposed to speak as the collective majority will of the electorate. Yet, the legislature and the governor would have had no say-so if 50% plus 1 voted in favor of the Healthy Families Act.
One possible fix is a super-majority (60%?) to pass a ballot initiative. Another is to require many more signatures than the relatively small number that currently suffices. A third option is to eliminate ballot initiatives altogether. On balance, the super-majority option seems to makes the most sense - it preserves the sanctity of our separation of powers, allows the populace to still have a direct say on issues they it deems to be of great importance, and limits the ability of dangerous laws to play to populist sentiments.
This change is necessary to protect our state's economy from what is coming down the pike in two years when labor unions begin gathering signatures for the next anti-business ballot measures, such as those that were recently removed in Colorado.

UPDATE: House passes ADA Amendment Act; President expected to sign shortly

The Connecticut Employment Law Blog and World of Work have the details.

For my earlier thoughts on these amendments, see House overwhelmingly votes in favor of ADA Amendments Act of 2008.

The Ohio Healthy Families Act is dead, but what's next?

Aside from being key battleground states in the 2008 election, Ohio and Colorado have another similarity, one to which employers in our state should pay attention.

In 2006, both states' voters passed ballot initiatives that amended their respective state constitutions to provide for a higher minimum wage. Why, you might be asking, should Ohio businesses care about what Colorado voters did two year ago? Because both minimum wage ballot initiatives were union-backed, as was the Healthy Families Act, and as are four different measures on Colorado's ballot this fall that should have businesses scared for their lives. According to Business Insurance, Colorado employers are fighting four proposed constitutional amendments on November's ballot that would devastate businesses in that state, by:

• Eliminating "at will" employment and requiring private employers to have a "just cause" with supporting documentation before terminating employees.
• Mandating that all companies with 20 or more employees provide health insurance for workers and dependents.
• Removing workers compensation's "exclusive remedy" provision, and permitting injured workers to collect workers comp benefits and sue their employer.
• Holding corporate officials criminally liable for illegal company activities.

Ohio businesses quickly mobilized against the Healthy Families Act, and should be commended for their efforts to defeat it. Imagine, however, the devastating cumulative effect of no more at-will employment, mandatory health insurance, and private lawsuits for workplace injuries. Companies need to stay vigilant in their efforts to keep Ohio business-friendly, and combat the type of job-killing ballot initiatives that labor organizations are testing in Colorado. Do not think for a second that if one or more of these Colorado initiatives are successful that we won't see some combination of them in 2010.

As long as labor organization can place transparently populist anti-business measures on the ballot via petition drives, we need to be mindful of what is happening in Colorado and fearful that it will come our way in the next election cycle.

Are you ready for the return of labor unions?

Statutes are famous for their creative names. For example, did you know that the [USA] Patriot Act is actual short for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act? The Employee Free Choice Act (ECFA) is no exception. After all, in a democracy who's against people having a free choice? If you are an employer of a non-union shop, you best decide that you are against it, and figure out a plan to cope with it if it becomes law.

Under current federal labor law, the tools used to recognize a union as employees' exclusive bargaining representative begin with a employee petition for representation by a union, and in most cases end with a secret ballot election. If more than 30% of employees, but less than a clear majority, sign petition cards requesting representation, the cards are submitted to NLRB to hold a secret ballot election. If more than 50% of employees certify their desire for representation, a union can choose to form based on the cards alone. An employer, however, does not have to recognize the card check petition and can require a secret-ballot vote overseen by the NLRB. Because most, if not all, employers will insist on a secret ballot election if given the opportunity, there are very few unions that end up being certified without an election being held.

The EFCA, however, will change this process by removing the secret ballot election. Under the EFCA, an employer would no longer have the opportunity to demand a secret ballot election. In other words, a majority of cards will be enough to certify a union.

Is there anything less democratic about people not being able to state their opinion via a secret ballot? I can't put it any better than Representative John Kline of Minnesota:

 

This bill has passed the House, but was held up by a filibuster in the Senate. Regardless, President Bush has already gone on record with a promise to veto it if it ever comes in front of him. Unsurprisingly, Barack Obama is in favor of the EFCA, and John McCain is against it. Even if McCain wins in November, this issue will not go away, as Congressional Democrats will continue to aggressively push for its passage.

For now, and even if the EFCA becomes law, the best defense against a labor union is simply being a good place to work. Having competitive wages and benefits, maintaining open lines of communication between employees and management, making personnel decisions for legitimate, non-arbitrary reasons, and fostering a sense of community all go a long way to deterring employees from even considering brining in a union.

House overwhelmingly votes in favor of ADA Amendments Act of 2008

By a margin of 402-17, the House yesterday voted in favor of the ADA Amendments Act of 2008. The New York Times is reporting that the Senate is expected to take similar action soon, but that President Bush is concerned that "it 'could unduly expand' coverage and significantly increase litigation."

The highlights of the bill (the full text of which is available here) are several. It defines "substantially limits" to mean "materially restricts," it specifies examples of major life activities, and expands upon them to include major bodily functions, and helps employers by exempting from "regarded as" claims transitory or minor impairments that last or are expected to last for 6 months or less.

The biggest changes, however, come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of "disability." These amendments expressly reverse that ruling:

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• The determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures, such as medications, equipment, assistive technology, auxiliary devices, learned behavioral, or adaptive neurological modifications.
• Eyeglasses or contact lenses, however, can still be considered in determining whether an impairment substantially limits a major life activity.

All in all, the goal of this legislation is to be lauded: "To carry out the ADA's objectives of providing 'a clear and comprehensive national mandate for the elimination of discrimination' and 'clear, strong, consistent, enforceable standards addressing discrimination' by reinstating a broad scope of protection to be available under the ADA." These amendments may not necessarily increase litigation, but they will certainly make it more difficult for employers to get ADA cases dismissed on summary judgment.

What would President Obama look like to employers?

Yesterday, Senator Barack Obama gave some insight into employment policy in his administration. RealClearPolitics has his words from a speech given in Albuquerque. The highlights:

• He will push for the passage of the Lilly Ledbetter Fair Pay Restoration Act, which will overturn Ledbetter v. Goodyear Tire & Rubber. Recall that Ledbetter held that the statute of limitations for a pay discrimination claim under Title VII begins to run when the pay-setting decision is made, and not when the employee learns of the discrimination. The Ledbetter Fair Pay Act would start the statute of limitations when the employee learns of the pay discrimination. In my view, this law would create a floating statute of limitations for pay discrimination claims, which severely undermines the important aspect of certainty that statutes of limitations provide for businesses.

• To assist working parents, he would expand the Child and Dependent Care tax credit to 50%.

• He would expand the FMLA to cover employers as small as 25 employees, to permit leave for the care of elderly parents, to allow parents 24 hours of annual leave to join school activities with their kids, and to cover employees who are victims of domestic violence or sexual assault.

• Finally, he would require employers to provide all workers with seven paid sick days a year.

It's clear from Senator Obama's words that family responsibility will be a driving force in his administration:

As the son of a single mother, I also don't accept an America that makes women choose between their kids and their careers. It's not acceptable that women are denied jobs or promotions because they've got kids at home. It's not acceptable that forty percent of working women don't have a single paid sick day. That's wrong for working parents, it's wrong for America's children, and it's not who we are as a country.

It's hard to argue against greater family leave benefits on a national scale (The Ohio Healthy Families Act is an entirely different story). As I've said before, this country lags behind most of the civilized world, and even some of the third world, in family leave benefits. Until we solve this problem legislatively, aggressive plaintiffs will continue to push for judicial solutions - such as the $2.1 million verdict against Kohl's Department Stores in Cuyahoga County last year.

Ohio legislature considers permitting weapons in cars

Yesterday, the Ohio House passed a bill that would allow legal gun owners to carry their weapon in a car. Today's Cleveland Plain Dealer reports that the Senate is expected to follow suit, and Governor Strickland is expected to sign this measure into law.

The bill both allows people with a license to carry guns in parking garages, and prohibits landlords from barring tenants from owning or carrying guns. One question that remains unclear is whether employers will be able to prohibit employees from keeping guns parked cars. Employers can lawfully prohibit guns from entering the workplace. An employee's ability to store a weapon in his glove box will have significant implications on workplace violence issues.

While Ohio has permitted the concealed carry of handguns for more than 4 years, employers can still lawfully prohibit guns (and other weapons) from entering the workplace. Under the current concealed carry law, employers also can prohibit guns in vehicles parked on the business' property. It remains to be seen if the proposed revisions affect this latter restriction.

As the Ohio Senate takes up this law for consideration, let me suggest that it takes the effort to make it very clear that businesses can still choose to prohibit the transportation of firearms onto their property in vehicles. Otherwise, we might be left with ambiguities that could cause confusion.

Genetic Information Nondiscrimination Act clears Congress

In news that surprises no one but is nonetheless significant, the House has passed the Genetic Information Nondiscrimination Act (GINA) by a vote of 414-1. It passed the Senate last week by a 95-0 margin. President Bush is expected to sign GINA into law shortly. Among other provisions related to health insurance coverage, the bill will make it illegal for employers to use genetic information in hiring, firing, or promotion decisions.

For information on GINA, take a look at today's AP wire story as reported by the New York Times. The full text of the bill, as passed by the House, is also available.

I'll have more on GINA's potential impact if and when President Bush signs it.

New Jersey to adopt paid sick leave - is Ohio next?

While the Ohio Healthy Families Act stalls in the legislature, and Sick Days Ohio, the group lobbying for this bill, gathers signatures to place in on November's ballot, New Jersey will join California and Washington to become the 3rd state (plus the District of Columbia and San Francisco) to require paid sick leave for employees. The New Jersey plan, however, differs from Ohio's Healthy Families Act in three key regards:

1. New Jersey's employees will partially fund their own paid leave through a payroll deduction. According to today's Philadelphia Inquirer, each worker will pay about $33 per year, while each is entitled to collect up to two-thirds of their salary, capped at $524 per week.
2. Employers will be able to require their employees to use accrued vacation days and other paid time off before using their allotment of statutory paid sick leave.
3. Businesses with fewer than 50 employees would not be required to keep jobs open to workers who take the leave.

These differences are a step in the right direction of protecting the interests of small business owners. A payroll deduction and benefit cap will alleviate some of the concerns over cost, although I doubt that $33 per year per employee will be enough to fully cover all employees. Requiring employees to use other paid leave before the statutory leave will prevent potential abuses by employees. Finally, not guaranteeing continued employment for employees of small businesses will allow those businesses to meet their staffing needs without fear of a retaliation lawsuit.

The OHFA has other deficiencies that still need to be addressed, particularly its anti-retaliation provision: "No employer shall discharge or in any manner discriminate against any employee for opposing any practice made unlawful by this Act, including ... using paid sick leave taken pursuant to this Act as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action." "Negative factor" is much too forgiving of a standard, and likely will hamstring employers from taking action against any employee who is out for even a day with an illness.

The Ohio legislature should consider the OHFA, if only to keep it from appearing on the November ballot in its current form. Such debate should include consideration of these provisions from the New Jersey law, each of which addresses an important concern to Ohio's small business owners.

Update on Ohio Health Families Act

The Columbus Dispatch reports that the Ohio legislature is balking at the Ohio Health Families Act in its current form. The legislature has until May 8 to pass the OHFA. If it does not, Sick Days Ohio, the Union-led coalition of 180 different groups that sponsored the measure, would be entitled to circulate a petition to gather 120,683 signatures to qualify the law for placement on the fall ballot. A recent Columbus Dispatch poll shows that Sick Days Ohio likely would not have much problem obtaining those signatures. According to the poll, 76% of registered Democrats and 45% of registered Republicans favor the OHFA, while only 15% of Democrats and 44% of Republicans oppose it.

This wide bipartisan public support likely means that the OHFA will appear on November's ballot and will probably pass by a comfortable margin. In other words, Ohio's businesses better prepare themselves for the likely prospect of mandatory paid sick leave beginning in 2009.

Ohio Senate proposes ban on sexual orientation discrimination

Senate Bill 305, introduced in the Ohio Senate yesterday, would include "sexual orientation" in the list of protected classes against which it is illegal for employers to discriminate. It defines sexual orientation as "heterosexuality, homosexuality, bisexuality, asexuality, or transgenderism, whether actual or perceived." According to today's Cleveland Plain Dealer, if S.B. 305 passes, Ohio would become the 22nd state to ban this type of discrimination. The Plain Dealer also points out that only one Republican crossed party lines to sponsor the bill, which does not bode well for its ultimate fate.

While this blog is unabashedly slanted in the employer's favor, I come down on the side of the employee on the issue of sexual orientation discrimination. As I've said here before, is difficult to argue, in 2008, that it is acceptable to condone intentional discrimination of an innate characteristic such as sexual orientation. I also understand, however, the impracticalities of extending the same protections to gender identity. A company should not be forced to accept a man dressed in drag (for example) if that is not the image its wants to project, or if it think such an image will harm its bottom line by driving away business or customers.

Guest blogging at the Connecticut Employment Law Blog

I'm pulling double duty today. In addition to my regular posts here, I'm also guest blogging at the Connecticut Employment Law Blog to cover for Dan Schwartz while he's in trial. Click on over to Dan's outstanding blog (and I'm not just saying that because of my guest post) and take a look at my thoughts on the federal Healthy Families Act. While your there, be sure to subscribe and add Dan to your feed reader.

The uselessness of the Working Families Flexibility Act

WorkplaceHorizons has tipped me off to a recently introduced Senate bill, the Working Families Flexibility Act.

This bill, sponsored by Senators Obama and Clinton among others, would provide employees with the right to request, once every 12 months, that his or her employer modify the employee's work hours, schedule, or location. The Act would then require the employer to meet with the employee to discuss the requested modification within 14 days. Within 14 days of that meeting, the employer would have to provide the employee with a written decision regarding the requested modification, stating the grounds for any denial and any proposed alternative modifications. If the employee is still dissatisfied with the employer's decision, the bill would allow the employee to request reconsideration and require the employer and the employee to meet to again discuss the request. The Act covers employees who work at least 20 hours per week and 1,000 hours per year, and employers with 15 or more employees.

The Act also would make it unlawful for an employer to interfere with an employee's attempt to exercise his or her rights under the Act or to retaliate against an employee. Aggrieved individuals could file a complaint with the Administrator of the Wage and Hour Division of the Employment Standards Administration of the United States Department of Labor. Violations could result in civil fines of up to $5,000 per violation and equitable relief such as reinstatement, promotion, back pay, and changes to terms and conditions of employment.

Last I checked, the employer sets the terms and conditions of employment, especially on the core issues of work hours, schedules, and locations. Do employees really need federal legislation to go to a supervisor and ask for such an accommodation? Will this legislation change employers' responses to reasonable requests? Won't employers still guide their responses by the specific needs of their businesses? Further, as long as an employer goes through this interactive process, where is the harm to the employee, who is granted no right to any modification? However, every time an employee's request is rejected, he or she will scream interference or retaliation to the DOL, creating an administrative nightmare. Talk about worthless legislation. This bill is currently sitting in the Senate Committee on Health, Education, Labor, and Pensions, where I hope it dies a quick death.