MCLE’S ANNUAL EMPLOYMENT LAW CONFERENCE. On December 5, 2008, Nina Kimball spoke before an audience of approximately 200 employment lawyers at MCLE’S ANNUAL EMPLOYMENT LAW CONFERENCE about new legislation and regulations, including the new regulations under the Family & Medical Leave Act and the Amendments to the Americans with Disabilities Act.  The ADA Amendments will go into effect on January 1, 2009. 

 

Scroll down to the end of this page to read Nina’s article summarizing new legislation and possible legislative initiatives that we may see with the new Congress and the Obama Administration.

 

 

AMICUS BRIEF BEFORE SUPREME JUDICIAL COURT.   In November 2008, Nina authored an amicus brief before the Supreme Judicial Court in the case of Everett v. The 357 Corp., No. SJC-10238, on an issue relating to timing for filing claims of discrimination.  Nina wrote the brief on behalf of seven civil rights and advocacy groups in the Commonwealth.

 

 

THE NEW FMLA REGULATIONS.  The new FMLA regulations will go into effect on January 16, 2009.  We encourage employers who need guidance in complying with the new regulations, including revising their Employee Handbooks, to contact this office. 

 

Here are some of the highlights of the new FMLA regulations. 

 

Employer notice.  Employers have four notice obligations.  There is the general notice that must be posted and in a handbook.  Once an employee requests FMLA leave, there are three additional notices that must be sent (1) notice of eligibility explaining if employee is eligible or not for FMLA leave;  (2) notice of rights and responsibilities; and (3) designation of leave as FMLA leave.  DOL has prototypes for these forms.  Employers may provide this specific notice within 5 business days rather than the current 2 days. 

 

Employee notice.  In requesting leave, employees must comply with employer’s regular call-in policies (which could mean calling in before the start of a shift) and must request leave “as soon as practicable” which has been narrowed from two days to the same or next business day.  The new regulations add information that employees may give, but unlike in the proposed rule, the information is not mandatory.

 

Serious health condition. The new regulations add a requirement that to have a serious health condition defined as “absence plus treatment” the treatment must include the first visit to the health care provider within 7 days of incapacity, and the second visit within 30 days unless there are “extenuating circumstances.”  For persons with a chronic condition, they must see a health care provider at least twice a year.

 

Medical certification -- Content.  The medical certification now requires the health care provider to provide additional types of facts to describe the serious health condition, which can include a diagnosis, as well as information that establishes that an employee cannot perform the essential functions of his or her job.   The medical certification also requires the employee to include contact information for his or her health care provider.

 

Medical certification – Incomplete or Questions.  If the employer deems a medical certification incomplete, it must designate in writing what is missing and give the employee 7 days to complete it.  If the employer has questions about the authenticity or needs clarification, the new regulations allow certain persons (HR professional, a health care provider, a leave administrator, or a management official, but not the employee’s supervisor) to contact the health care provider directly to seek “authentication” or “clarification” of information on the medical certification form.  By contrast, the current regulations only allow a health professional designated by the employer to contact the employee’s health care provider.

 

Military leave.  The new regulations set out provisions governing the two new forms of military leave: military family leave, which is a one-time leave of up to 26 weeks to care for a family member seriously ill or injured in the line of duty; and leave for qualifying exigencies, which is up to 12 weeks of leave for reasons related to a family member’s deployment in the military.

 

There are many other provisions, much too numerous to list here, given that the regulations are over 200 pages in the Federal Register.  For further information, contact this office.

 

 

EMPLOYMENT LAW GUIDE.  The Labor & Employment Section of the Boston Bar Association recently completed its “Employment Law Guide: A Practical Guide to Understanding Massachusetts Employment Law.”  The Guide was drafted by a group of attorneys who represent both employees and management and was created to assist employers and employees in Massachusetts in understanding their rights and obligations in the workplace.  Kimball Brousseau firm members have been integral in the production of the Guide: Attorney Justine Brousseau organized the project and is one of the authors, Attorney Nina Kimball is the Reviewer and Editor of the Guide, and paralegal Beth Hennessy is the Layout and Assistant Editor.  You can view the Guide at the BBA’s website at:  http://www.bostonbar.org/sc/le/employmentlawguide.pdf.

 

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2008 LEGISLATIVE UPDATE

By Nina Joan Kimball

Kimball Brousseau LLP

 

 

This is a summary of the major pieces of legislation and regulations on the federal and state level in the employment area over the last year.  Also included are some bills that may be enacted next year given the new Administration and larger Democratic majorities in Congress. 

 

FEDERAL LEGISLATION

 

Americans with Disabilities Amendments Act (ADA-AA).  The most far-reaching changes in employment legislation this past year are the Amendments to the Americans with Disabilities Act, Public Law 110-325, which President Bush signed into law on September 25, 2008, and which will become effective on January 1, 2009.  This statute brings sweeping changes to how the ADA (42 U.S.C. § 12101 et seq.) will be interpreted and applied, and reverses several Supreme Court decisions  that had narrowly interpreted the ADA.

 

In the Findings and Purposes, Congress specifically rejects the Supreme Court’s decisions in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), and its companion cases and Toyota Motor Manufacturing Kentucky, Inc. v. Williams, 534 U.S. 134 (2002), stating that those decisions “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect” and that as a result “lower courts have incorrectly found . . . that people with a range of substantially limiting impairments are not people with disabilities.”  The Amendments are meant to “reinstate” a “broad scope of protection” under the ADA.

 

The primary focus of the Amendments is to broaden how the term “disability” is defined and applied so that it will be easier for an individual to prove that he or she is disabled.  Here are the main provisions of the Amendments.

 

1. Definition of disability.  Although the definition of disability remains the same, Congress has added definitions for the terms “substantially limits” and “major life activities” which currently are only defined in the EEOC regulations, and added a broad rule of construction.  ADA-AA § 4(a). Congress also specifically delegates to the EEOC, the Attorney General and the Department of Transportation the authority to issue regulations to define terms within the definition of disability, thus assuring the deference to be paid to their regulations.  ADA-AA § 6.

 

2. “Substantially limits.”  The Amendments define “substantially limits” to mean “materially restricts.” This is a broad standard that explicitly rejects the holding of Toyota Manufacturing, which had said that the terms “substantially” and “major” were meant to be interpreted “strictly to create a demanding standard for qualifying as disabled” such that the impairment “prevents or severely restricts” activities of “central importance to people’s daily lives.”  By explicitly rejecting this language of Toyota Manufacturing, Congress clarifies that “substantially” does not mean “severe,” and the new standard of “materially restricts” should be given a very broad reading in favor of finding a person disabled rather than not.   ADA-AA § 4(a)(2).

 

3. “Major life activities.”  To make sure that courts will interpret the term “major life activity” broadly, the Amendments add a non-exhaustive list of examples of “major life activities” which currently are found only in the EEOC regulations.  The list adds some new activities not found in the EEOC regulations, specifically eating, sleeping, standing, lifting, bending, reading and communicating.  The Amendments also clarify that major life activities include bodily functions, and provide a list of non-exhaustive bodily functions “including but not limited to, functions of the immune system, normal cell growth, digestive behavior, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” ADA-AA § 4(a)(3).

 

4. “Regarded as.”  In order to restore a broad interpretation of the third prong of the definition of disability – “being regarded as having an impairment” – Congress clarified that to meet this standard an individual does not have to prove that his or her actual or perceived impairment limits or is perceived to limit a major life activity.  ADA-AA § 4(a)(4)(A).  By doing so, Congress rejects the Supreme Court’s narrow interpretation of the third prong from the Sutton decision and reinstates the Supreme Court’s reasoning in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), where the Court, interpreting the identical provision of the Rehabilitation Act, explained that “Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from the actual impairment.”  Id. at 284.  This will allow the EEOC to return to its original interpretation of the “regarded as” prong where it had said that an individual who suffers an adverse action because of the “myths, fears, and stereotypes” associated with an impairment is covered under the “regarded as” prong.

 

The Amendments provide that the “regarded as” prong does not apply to impairments that are “transitory and minor,” specifying that “transitory” means a duration of six months or less. ADA-AA § 4(a)(4)(B). In addition, the Amendments provide that an employer need not make a reasonable accommodation to an individual who is regarded as disabled. ADA-AA § 6.

 

5. Rules of construction.  In order to ensure that courts will follow Congress’s directive to “reinstate” a broad scope of protection under the ADA, the Amendments add rules of construction, including that the definition of disability is to be “construed broadly” and that an impairment need only limit one major life activity to be considered a disability.  ADA-AA § 4(a)(5)(A) & (B).

 

6. Episodic or in remission impairments count.  Another rule of construction clarifies what had been controversial, that an impairment that is “episodic or in remission is a disability if it would substantially limit a major life activity when active.” ADA-AA § 4(a)(5)(C).

 

7. Mitigating measures don’t count.  Rejecting the Supreme Court’s Sutton trilogy,  the Amendments provide that 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 medication, medical supplies, equipment or appliances, and low-vision devices.  However, ordinary glasses or contact lenses would not be considered mitigating measures. ADA-AA § 4(a)(5)(D).

 

8. Temporary disabilities might count.  The Amendments do not address whether a disability that is only temporary in nature – such as a serious short-term illness or pregnancy-related disabilities – are covered.  However, an argument can be made that since Congress only applied the exception for transitory and minor impairments to the “regarded as” prong, it indicates that transitory impairments that do in fact substantially limit a major life activity would count as a disability under the first prong of the definition.

 

 

 

Family & Medical Leave Act Amendments.  An act known as the Family Leave in Connection with Injured Members of the Armed Services was enacted as Section 585 of the National Defense Authorization Act for FY 2008, Public Law 110-181, and signed into law on January 28, 2008.  This legislation amends the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (FMLA), by creating two new forms of leave: (1) military family caregiver leave, and (2) leave for “qualifying exigencies.”  On November 17, 2008, the Department of Labor (DOL) issued new final regulations governing the FMLA, which include important provisions governing both forms of military family leave.

 

1.  Military Family Caregiver Leave is a new type of leave of 26 weeks for an employee who has a family member (including a next of kin) who has suffered a serious injury or illness in connection with serving in the line of duty in the Armed Services.  The employee can use the 26 weeks leave period just once in a 12-month period.  In its final regulations, DOL points out some of the differences between military family caregiver leave and other forms of FMLA leave:  for example, the amount of total leave is 26 weeks instead of 12; it can be used in only one 12-month period, but the 12-month period may not equate to the employer’s FMLA leave year, but begins on the first day the employee takes leave; it is a one-time leave but is is available on a per-service member, per-injury basis; and the employee can be the “next of kin” of the service member, meaning the closest blood relative, which potentially extends leave to more distant family members than other forms of FMLA leave. 

 

The other provisions of the FMLA apply to this type of leave such as it can be used intermittently or on a reduced basis as well as all at once; same notice provisions are required; the employee can use paid leave; medical certification is required; health insurance remains in effect during leave. 

 

2.  Leave for “Qualifying Exigencies” is leave that can be up to 12 weeks in a 12-month period if an employee has to be absent from work due to a “qualifying exigency” arising out of the fact that a family member is on active duty or has been notified of impending call to active duty.  In its final regulations, DOL has defined the type of “exigencies” that will qualify for this type of leave, providing examples of each category: (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities.  The regulations also contain definitions of other important terms, such as covered military member and contingency operation, and provide for certification requirements for this form of leave.

 

Genetic Information Nondiscrimination Act (GINA), Public Law 110-233, was signed into law on May 21, 2008.   GINA prohibits employers and insurance companies from discriminating against employees and prospective policy purchasers on the basis of genetic information.  Due to advances in genetic testing, deciphering the human genome, and the fact that many genetic conditions and disorders are associated with racial groups, ethnic groups or gender, Congress has prohibited employers from making employment decisions on the basis of genetic information, and prohibits health insurance companies from making enrollment decisions or basing premium amounts on the basis of genetic information.  Employers also may not request or collect genetic information from or about their employees (with certain exceptions, such as if the information is part of an employee’s medical history that an employer is entitled to receive to comply with certification requirements under the FMLA).  Any genetic information that an employer has of an employee or his family must be treated as a confidential medical record.  The procedures and remedies of Title VII apply to enforcement of this statute. The statute as it relates to employers takes effect in November 2009.  Note that Massachusetts already prohibits employers from discriminating on the basis of genetic information. 

 

 

Whistleblower Protections:  In 2007 and 2008, Congress enacted recommendations of the 9/11 Commission to protect employees who blow the whistle in various different situations.  This is some of the most protective federal whistleblower legislation.

 

1. National Defense Authorization Act of 2008, Public Law 110-181, signed on January 28, 2008, contains a provision, Section 846, that protects employees of defense contractors who blow the whistle on fraud. This claim has no statute of limitations.  It has make-whole damages, but no punitive damages.  Codified at 10 U.S.C. § 2409.

 

2. Consumer Product Safety Improvement Act of 2008.   In the wake of the children’s toys lead paint scare, Congress enacted the Consumer Products Safety Improvement Act, Public Law 110-314, signed on August 14, 2008.  It protects employees of private companies that manufacture, label or retail 15,000 different consumer products regulated by the Consumer Product Safety Commission who blow the whistle on risky practices, safety, fraud or mismanagement. The statute provides employees who are retaliated against for reporting violations of consumer product safety laws an administrative remedy followed by a cause of action for injunctive relief and compensatory damages, including back pay, attorneys’ fees and costs.  To be codified at 15 U.S.C. § 2087.

 

3. National Transit System Security Act of 2007 (NTSSA), Public Law 110-53.  In 2007, Congress passed the NTSSA legislation to protect public transportation employees, railroad employees and commercial motor carrier employees who report on regulatory, health, safety and security measures.  In addition to back pay, compensatory damages and attorneys’ fees, an employee may be awarded punitive damages up to $250,000.  Codified at 6 U.S.C. § 1142.

 

Unemployment Benefits extended.  On June 30, 2008, as part of the Supplemental Appropriations Act, Congress enacted an emergency program to provide federal funds allow states to extend their unemployment benefits (Title IV of Public Law 110-252). Individuals who have exhausted their unemployment benefits under state law will get an additional 50 percent of the unemployment benefits they had received up to a maximum of 13 additional weeks.  The emergency program ends June 30, 2009.  It is likely that Congress in its lame duck session will extend this program.  Governor Patrick immediately put the program into effect in Massachusetts.  See below.

 

 

Fair Minimum Wage Act of 2007, Public Law 110-28, which was signed on May 25, 2007, raised the federal minimum wage for the first time in 10 years.  The minimum wage rises in three-year increments from $5.15 an hour to $5.85 on July 24, 2007; to $6.55 an hour on July 24, 2008; to $7.25 an hour on July 24, 2009.  While this affects employers doing business in other states, it has no practical effect in Massachusetts where the state minimum wage is currently $8.00.

 

 

FEDERAL REGULATIONS

 

FMLA Final Regulations.  The Department of Labor issued final regulations for the FMLA on November 17, 2008.  They are effective in 60 days, on January 16, 2009.  The final regulations can be found at http://www.federalregister.gov/OFRUpload/OFRData/2008-26577_PI.pdf.  Due to publication deadlines and the massive size of the final regulations (762 pages of the Federal Register) only a few high points are noted here:

 

n      Employer notice.  Employers have four notice obligations.  There is the general notice that must be posted and in a handbook.  Once an employee requests FMLA leave, there are three additional notices that must be sent (1) notice of eligibility explaining if employee is eligible or not for FMLA leave;  (2) notice of rights and responsibilities; and (3) designation of leave as FMLA leave.  DOL has prototypes for these forms.  Employers may provide this specific notice within 5 business days rather than the current 2 days. 

n      Employee notice.  In requesting leave, employees must comply with employer’s regular call-in policies (which could mean calling in before the start of a shift) and must request leave “as soon as practicable” which has been narrowed from two days to the same or next business day.  The regulations add information that employees may give, but unlike in the proposed rule, the information is not mandatory.

n      Serious health condition. The new regulations add a requirement that to have a serious health condition defined as “absence plus treatment” the treatment must include the first visit to the health care provider within 7 days of incapacity, and the second visit within 30 days unless there are “extenuating circumstances.”  For persons with a chronic condition, they must see a health care provider at least twice a year.

n      Medical certification -- Content.  The medical certification now requires the health care provider to provide additional types of facts to describe the serious health condition, which can include a diagnosis, as well as information that establishes that an employee cannot perform the essential functions of his or her job. 

n      Medical certification – Incomplete or Questions.  If the employer deems a medical certification incomplete, it must designate in writing what is missing and give the employee 7 days to complete it.  If the employer has questions about the authenticity or needs clarification, the new regulations allow certain persons (HR professional, a health care provider, a leave administrator, or a management official, but not the employee’s supervisor) to contact the health care provider directly to seek “authentication” or “clarification” of information on the medical certification form.  By contrast, the current regulations only allow a health professional designated by the employer to contact the employee’s health care provider.

n      Military leave.  Some of the provisions governing the new military family caregiver leave and leave for qualifying exigencies is described above in the description of the Family and Medical Leave Act Amendments.

n      For the many other changes far too numerous to include here, see the regulations, contained in the November 17, 2008 issue of the Federal Register.  The actual regulations are contained in pp. 556-762 of the document, to be codified at 29 C.F.R. Part 825.

 

EEOC Guide: Veterans with Service-Connected Disabilities and the Americans with Disabilities Act.  The EEOC issued a guide covering issues related to employing military veterans with service-connected disabilities.   The guide answers questions relating to recruiting, hiring, and accommodating military veterans under both the Uniformed Services Employment and Reemployment Rights Act (USERRA) and under the ADA.  It covers issues such as what questions employers may and may not ask of applicants with service-related disabilities; what disclosures veterans are and are not required to make in applications; how to appropriately communicate preferences for veterans; and examples of reasonable accommodations that can be made.  The guide can be found on the EEOC’s website at http://www.eeoc.gov/facts/veterans-disabilities-employers.html.

 

EEOC Compliance Manual on Religious Discrimination.   On July 22, 2008, the EEOC issued a detailed new Compliance Manual on religious discrimination, which provides guidance and instructions for investigating and analyzing charges of discrimination based on religion covering issues including definitions of the term religion, what is “sincerely held,” employer inquiries, general employment decisions, harassment, and reasonable accommodation, including common methods of religious accommodation in the workplace.  The Compliance Manual can be found on the EEOC’s website at http://www.eeoc.gov/policy/docs/religion.html.

 

 

STATE LEGISLATION AND REGULATIONS

 

 

Wage Act Amendments.  Senate Bill No. 1059, which became law on April 14, 2008, amends the state wage statutes to clarify the Massachusetts Legislature’s intent that violation of the wage statutes will result in mandatory, not discretionary, treble damages.  The new amendment provides: “An employee so aggrieved who prevails in such [wage and hour] action shall be awarded treble damages, as liquidated damages.”  This language reverses the Supreme Judicial Court’s 2005 decision in Wiedmann v.  The Bradford Group, Inc., 444 Mass. 698 (2005), which ruled that treble damages were discretionary and could only be awarded if the plaintiff proved “reckless indifference” or “evil motive.”

 

Although many management attorneys have argued that this amendment changes the law, in fact, no reported decision prior to Wiedmann had ever ruled that treble damages were discretionary.  Prior to 2005, the few reported decisions either held that treble damages were mandatory, or avoided deciding the issue by finding the conduct to be sufficiently willful to support treble damages.  The treble damages provisions applies to various wage and hour statutes including violations of the payment of wages statute, M.G.L. c. 149, § 148, and the minimum wage and overtime law, M.G.L. c. 151, §§ 1A, 1B, 19.  The amendments went into effect on July 13, 2008.   It is unresolved whether the amendments apply retroactively.  However, that issue is currently on appeal.

 

Attorney General Advisory on Independent Contractors. 

 

On May 1, 2008, the Attorney General issued a new Advisory 2008/1 interpreting and applying the Massachusetts Independent Contractor Law, M.G.L. c. 149, §148B, which replaces the former Advisory on the law (2004/2).  In 2004, the Legislature amended the statute to require stricter requirements for classifying individuals as independent contractors rather than as employees, in large part as a result of abuses in the public construction industry.  The law establishes a three-part test to determine if an individual is an independent contractor, requiring all three factors to apply:  (a) freedom from control; (b) performing services “outside the usual course of business of the employer”; and (c) “engaged in an independently established trade, occupation, profession or business.” 

 

The second prong has generated the most controversy.  Recognizing the “complexity that prong two presents and the concerns regarding legitimate independent contractors,” the AG has attempted to soften the harshness of the second prong.  The advisory explains that the intent of the law is to address misclassification of employees, and not to disrupt the business of legitimate independent contractors and business-to-business relationships.  In determining if misclassification has occurred, the AG will consider “whether the service the individual is performing is necessary to the business of the employing unit or merely incidental.”  This standard is more employer-friendly than the prior advisory, which had looked at whether the individual was “performing similar or identical services as employees of the same entity.”

 

Regulations to Implement Security Breach Act, M.G.L. c. 93H.  On September 22, 2008, the Office of Consumer Affairs and Business Regulation (OCABR) issued final regulations to implement the Security Breach Act, M.G.L. c. 93H, to establish standards for how businesses in Massachusetts protect and store individuals’ personal information.  The regulations are effective January 1, 2009.  In addition, Governor Patrick signed Executive Order No. 504 to apply similar standards to state agencies.  The regulations, codified at 201 C.M.R. 17.00, require any person (which includes employers) that owns, licenses, sells or maintains “personal information” about a Massachusetts resident to develop a “comprehensive, written information security program applicable to any records containing personal information.”  “Personal information” means a person’s name plus either their social security number, driver’s license number, or financial account, or credit or debit card number.  The regulations contain detailed requirements for a written security program which include among other things:

 

(a)  designating employees to maintain the security program;

(b)  identifying internal and external risks to security;

(c)   developing security policies;

(d)  imposing disciplinary measures;

(e)  preventing terminated employees from accessing records containing personal information by immediately terminating electronic access;

(f)    verify that third-party service providers protect personal information;

(g)  limiting amount of personal information collected and limiting access;

(h)  identifying where personal information is stored;

(i)    impose reasonable restrictions for access;

(j)    adopt regular monitoring, review scope of security measures, and document responsive actions; and

(k)  follow the requirements set out for computer systems security.

 

 

Regulations Implementing Health Care Reform Act.  The Massachusetts Division of Health Care Finance and Policy has issued final regulations to implement the Health Care Reform Act, enacted in 2006 to reform health care insurance in the Commonwealth and broaden insurance coverage.  The final regulations will make it harder for larger employers (with 50+ employees) to meet the Act’s fair share contribution test.  The law requires employers with 11 or more employees to make a “fair and reasonable” contribution to the cost of health insurance for full time employees or else pay an annual “fair share contribution” of $295 per employee.  Currently, employers can meet the “fair and reasonable” contribution test through one of two ways: (1) the 25% test, requiring the employer’s health insurance plan to cover 25% of its full-time employees; or (2) the 33 % test, requiring the employer to pay at least 33% of the health insurance costs of its full-time employees.  Under the new regulations, larger employers (with 50+ employees) must meet both of these tests or cover at least 75% of their full-time employees in Massachusetts to avoid the $295 penalty. 

             

 

Extension of Unemployment Benefits.  Acting quickly to extend unemployment benefits in Massachusetts after Congress passed a law providing federal funding, Governor Patrick extended unemployment benefits in the Commonwealth effective July 7, 2008.  The program provides up to 13 weeks of additional unemployment benefits for individuals who have exhausted their unemployment benefits under the regular state program (the total cannot exceed 39 weeks of benefits).  People are eligible who worked an equivalent of 20 weeks during the year prior to receiving unemployment.  The extended benefits are available until March 31, 2009 (with potential payouts ending June 30, 2009).  In Massachusetts, unemployment benefits are usually capped at 30 weeks.  However, during an extended benefits period, Massachusetts benefits are capped at 26 weeks, and individuals are eligible for up to 13 weeks of additional extended benefits.  

 

 

 

READING THE TEA LEAVES: WHAT TO EXPECT IN 2009

 

Looking at the progress of legislation in the 110^th Congress and Obama’s campaign proposals, here is a sense of what we may expect from the Obama Administration and the new 111^th  Congress.

 

Lilly Ledbetter Fair Pay Act.  The Lilly Ledbetter Fair Pay Act (H.R. 2831, S. 1843) would reverse the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618  (2007), by rejecting the Court’s holding that Lilly Ledbetter’s wage discrimination claim was untimely because she did not file her claim until many years after her wage rate was set lower than her male counter parts.  Ledbetter rejected the paycheck accrual rule, which resets the statute of limitations each time an employee received a discriminatory paycheck.  The Fair Pay Act restores the paycheck accrual rule.  The new Act would clarify that a discriminatory act occurs (1) when a discriminatory compensation decision is adopted: (2) when an individual is subjected to a decision or practice; or (3) when an individual is affected by a discriminatory pay practice or decision including the receipt of compensation.  The Act would amend Title VII, the ADA, the ADEA, and the Rehabilitation Act.  Given that this bill passed the House in 2007 by a vote of 225-199, and that it was supported by a majority of Senators (including Obama), but only failed on a vote to invoke cloture 56-42, to cut off a filibuster (which requires a 3/5 majority), it is likely to be enacted early in the new Congress.   

 

Employee Free Choice Act.  Another bill that passed the House (241-185), had a majority support in the Senate (Obama was a co-sponsor), but was blocked by a Republican filibuster, is the Employee Free Choice Act (H.R. 800, S. 1041), which looks likely to pass in some form next year.  This bill would streamline the process of union organizing and contract negotiation.  The Act provides: (1) when a majority of employees sign union authorization cards the union is certified by the NLRB without the necessity of an election; (2) if a contract is not reached within 90 days, either party may request mediation followed by arbitration to reach a contract; and (3) stiffer penalties for unfair practices during organizing and initial contract negotiation process.

 

Minimum Wage.  We may see another increase to the minimum wage beyond the $7.25 due to go in effect July 24, 2009.  According to Obama’s campaign website, he proposes increasing the minimum wage to $9.50 by 2011 and indexing the minimum wage to inflation.

 

Extension of unemployment benefits.  Given the economic crisis, Congress will most likely extend the current extension of unemployment benefits, which are due to end in June 2009.

 

Whistleblower Protection Enhancement Act.  H.R. 985

Federal Employee Protection Disclosures Act.  S. 274

Both bills passed in 2007, but the House and Senate were unable to reconcile the two different bills.  The bills would improve laws protecting federal government whistleblowers by, among other things, removing exclusive Federal Circuit jurisdiction; providing compensatory and punitive damages; and protecting reports made as part of job duties (thus reversing the Supreme Court’s Garcetti decision for federal employees).

 

Federal Employees Paid Parental Leave Act, H.R. 5871, which would provide four weeks of paid parental leave to federal employees, passed the House 278-146 in June 2008.  A Senate counterpart was introduced in July 2008. 

 

Paid Leave: Healthy Families Act.  S. 910 and H.R. 1542 would require employers to provide up to seven days of paid sick leave.  These bills did not reach votes in either Chamber.  According to Obama’s campaign web site, he supports providing seven days of paid sick leave for private-sector employees; and he would provide federal funds to assist states adopt paid-leave policies.

 

Family and Medical Leave Act.  Obama supports extending the FMLA to smaller employers (25+ employees), and increasing the scope of protections: to care for elder needs; to provide 24 hours to participate in children’s academic activities; to care for individuals who reside in their homes; and leave for victims of domestic violence and sexual assault.  Also, Congress and the Obama Administration may want to reverse some of the more restrictive changes introduced in the DOL’s new FMLA regulations issued November 17, 2008, which go into effect 60 days later, on January 16, 2009 just four days before the end of Bush’s term.

 

Employment Non-Discrimination Act (ENDA).  Two bills in the House, H.R. 3685, would ban employment discrimination on the basis of sexual orientation; and H.R. 2015, would ban employment discrimination on the basis of sexual orientation and gender identity.  H.R. 3685 passed the House 235-184.  No vote in the Senate.

 

Health Care legislation.  Obama will push to enact some type of reform of health care legislation that will affect employers in some way.  According to Obama’s campaign website, his health care plan calls for the creation of a “National Health Insurance Exchange to help Americans and businesses that want to purchase private health insurance directly” and requires “all employers to contribute towards health coverage for their employees or towards the cost of the public plan.”  
 

Retirement security.  From the Obama website: “The Obama-Biden retirement security plan will automatically enroll workers in a workplace pension plan. Under their plan, employers who do not currently offer a retirement plan, will be required to enroll their employees in a direct-deposit IRA account that is compatible to existing direct-deposit payroll systems. Employees may opt-out if they choose.”

 

Amendments to WARN Act.  H.R. 3896 and S. 1792 would extend the notice from two months to three months, expand coverage, and strengthen the penalties of the Worker Adjustment and Retraining Notification Act.  H.R. 3896 passed the House in 2007.

 

__________________________

I want to thank my paralegal, Beth Hennessy, for helping prepare these materials, and Donna Lenhoff, the Legislative & Public Policy Director of the National Employment Lawyers Association, for her input.