Looking Ahead to 2009: The Potential Revival of Previously Proposed Federal Employment Laws

In the recently convened Congress, we anticipate the revival of a significant number of labor and employment law bills previously introduced, but not enacted into law. The Democratic electoral successes suggest better prospects for the passage of these laws. In fact, one has already been rushed through the legislative process. However, those that appear to impose substantial cost burdens on business may be less palatable to Congress now that jobs have become such a critical concern.

Labor Law

In addition to the Employee Free Choice Act, discussed in a previous article, federal labor law would also be substantially altered by the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (the RESPECT Act).

This law would redefine “supervisor” for purposes of the National Labor Relations Act. As a result, many workers now deemed to be supervisors would be considered employees. As such, they would be eligible to form and join unions and enjoy other protections afforded to employees under the National Labor Relations Act.

Employment Discrimination Law

The following four efforts to modify existing employment discrimination protections were left on the table by the last Congress:

  1. The Ledbetter Fair Pay Act, a response to a Supreme Court case strictly interpreting the time period within which pay discrimination claims may be brought. This Act has now been passed by Congress. It allows such claims to be brought within a specified time after the date of any discriminatory paycheck, rather than after the date the discriminatory pay practice began.
  2. The Paycheck Fairness Act, which would amend the Equal Pay Act to make it more difficult for an employer to justify differences in pay between male and female employees. This Act would also protect employees who share salary information with their co-workers in furtherance of a sex discrimination investigation, and it would expand Equal Pay Act remedies to include compensatory and punitive damages. It has passed the House already this year, but may face a battle in the Senate.
  3. The Fair Pay Act, which would require equal pay for “equivalent work.” Employers could not pay jobs that are held predominately by women or minority employees less than jobs in the same company held predominately by men or white employees if those jobs are “equivalent in value” to the employer. The Fair Pay Act would make exceptions for different wage rates based on seniority, merit, or quantity or quality of work, and would contain a small business exemption.
  4. The Employment Non-Discrimination Act, which would add discrimination based on sexual orientation to Title VII of the Civil Rights Act of 1964.

Other Employment Issues

Other laws recently proposed involve a variety of other employment issues. These include:

  • The Working Families Flexibility Act, which would create a statutory right for employees to request a change in the number of hours worked, when work is performed, or where work is performed. This Act would not require that the employer agree to any particular request, but would require it to meet with the employee to consider such requests and to provide a written explanation and satisfy other procedural requirements if it refused them.
  • The Patriot Employers Act, which would provide tax credits to employers who increase the proportion of jobs located in the United States.
  • The Employee Misclassification Prevention Act, which would require employers to keep records on and notify workers of their employment or independent contractor classification and their right to challenge that classification. It would also impose penalties on employers who misclassify employees as independent contractors.
  • The Arbitration Fairness Act, which would ban mandatory arbitration agreements in the employment, consumer, franchise, and civil rights contexts.
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