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eTrends - Pending Federal Workplace Legislation Report

12.04.2009

Presently, there are more than 50 pending pieces of federal legislation governing virtually every aspect of the workplace – traditional labor, pay, leave, OSHA, immigration, civil rights, veterans’ rights, benefits and others.

More than ever before, it is vitally important that all business owners, executives and human resources professionals be proactive in having your voices heard by our elected officials on how these laws will impact employers.

A list of the pending legislation, along with its current status and key features, is summarized in this report.

Traditional Labor

Employee Free Choice Act(H.R. 1409, S. 560)

  Status:  In House subcommittee and Senate committee

  Key Features

  • Requires union recognition by simple majority of signed cards in bargaining unit; dispenses with secret ballot elections
  • Failure to reach first contract agreement allows union to force mandatory arbitration by federal arbitrator to set contract terms
  • Increases employer but not union penalties for unfair labor practices

Freedom From Union Violence Act of 2009(H.R. 2537)

Status:  In House subcommittee

  Key Features

  • Imposes fines or imprisonment or both on any person who commits act of violence or extortion against another person during labor dispute
  • Closes loophole in Hobbs Anti-Racketeering Act that allowed extortion and violence against workers

Rewarding Achievement and Incentivizing Successful Employees Act (RAISE)(H.R. 2732, S.1184)

  Status:  In House subcommittee and Senate committee

  Key Features

  • Amends NLRA to allow higher wages for hard workers who work under a CBA
  • Bonuses can be given to workers for going the extra mile, combined with benefits of CBA
  • Under current law, employers must get union permission prior to increasing wages of union workers

Truth in Employment Act of 2009(H.R. 2808, S. 1227)

  Status:  In House and Senate committees

  Key Features

  • Allows employers to fire union organizers who are suspected of “salting” (i.e., attempting to organize the workforce from within), protecting employers and employees from disruption by organizers
  • Amends NLRA to protect employers from being required to hire persons who seek employment solely to promote union interests

Worker Eligibility Fairness Act of 2009(H.R. 3048)

  Status:  In House committee

  Key Features

  • Amends the Food and Nutrition Act of 2008 (the “Farm Bill”) to remove the food stamp ineligibility of government workers who participate in strike

National Right-to-Work Act (H.R. 4107)

  Status:  In House committee

  Key Features

  • Amends the NLRA and the Railway Labor Act to enhance protections to workers forming, joining, or assisting labor organizations, or to refrain from same

Pay

Paycheck Fairness Act (H.R. 12, S. 182)

  Status:  Passed House, placed on Senate Legislative Calendar

  Key Features

  • Makes it more difficult to defend Equal Pay Act claim by requiring employer to demonstrate that lower pay is based not only on bona fide factor other than sex but also consistent with business necessity
  • Allows compensatory and punitive damages in EPA claims, even though intentional discrimination is not required
  • Allows for Rule 23 opt-out class actions (currently EPA requires use of FLSA opt-in procedures)
  • Expands definition of “same establishment” to mean all workplaces in county
  • Prohibits adverse action against employees who share salary information

Fair Pay Act (H.R. 2151, S. 904)

  Status:  In House subcommittee and Senate committee

  Key Features

  • Amends EPA to cover pay discrimination based on race and national origin (in addition to sex)
  • Adds job-related or legitimate business interest requirement to bona fide factor other than sex, race or national origin
  • Adds comparable worth theory to pay discrimination claims (which currently require comparison of equal skill, responsibilities and working condition) to allow comparison of jobs that are “equivalent”
  • Requires employers to publicly disclose job categories and pay scales

Breastfeeding Promotion Act of 2009(H.R. 2819, S. 1244)

  Status:  In House and Senate committees

  Key Features

  • Amends Title VII to include lactation as protected conduct under the Act
  • Requires employers of 50 or more employees to provide reasonable break time to employees to express breast milk, for one year after birth of child
  • Provides tax incentives to employers who promote breastfeeding efforts in the workplace

Taxpayer Responsibility, Accountability and Consistency Act of 2009(H.R. 3408)

  Status:  In House committee

  Key Features

  • Amends the Internal Revenue Code to clarify rules pertaining to the classification of workers as independent contractors
  • Recognizes that misclassified workers are denied workplace benefits, that compliant employers are disadvantaged, and that the U.S. Treasury suffers loss of tax revenue

Wage Theft Prevention Act(H.R. 3303)

  Status:  In House subcommittee

  Key Features

  • Amends the Portal-to-Portal Act to suspend the statute of limitations on FLSA litigation during investigations by DOL Secretary

Leave

Family and Medical Leave Restoration Act (H.R. 2161)

  Status:  In House subcommittee

  Key Features

Nullifies many 2009 regulations:

  • Restores protections that prevent an employer from forcing an employee to more incremental FMLA leave than is medically necessary
  • Reverses limitations placed on the use of accrued paid leave while a worker is on FMLA leave
  • Restores the prohibition on the denial of attendance bonuses as a consequence of taking FMLA leave
  • Restores protections that prohibit the waiver of FMLA rights without review and approval by DOL or the courts
  • Restores protections that prohibit an employer from approving or denying FMLA leave based on compliance or noncompliance with employer leave request policies
  • Restores employee privacy by reversing regulations that would allow an employer to directly contact an employee’s medical provider
  • Restores previous “fitness-for-duty” certification rules for employees who take intermittent leave
  • Directs the labor secretary to revise the 2008 regulations to revisit “the new, burdensome treatment and recertification timelines”  imposed by previous DOL leadership
  • Directs the labor secretary to revise the provided medical certification template to include the definition of a “serious health condition”

Family and Medical Leave Inclusion Act (H.R. 2132)

  Status:  In House subcommittee

  Key Features

  • Permits leave to care for domestic partner, child of domestic partner, parent-in-law, same sex spouse, adult child, sibling or grandparent, if that person has a serious health condition

Family Leave Insurance Act (H.R. 1723)

  Status:  In House subcommittee

  Key Features

  • Provides for paid leave for serious  health condition (employee’s own or covered family member), paid from federal fund to which employee and employer would contribute

Healthy Families Act (H.R. 2460, S. 1152)

  Status:  Introduced in House and Senate; in House subcommittee and Senate committee

  Key Features

  • Applies to employers with 15 or more employees
  • Requires employers provide seven paid sick days per year to care for employee or covered family member sickness
  • Covers absences for preventative care and to recover from incidents of domestic violence, stalking or sexual assault
  • Paid leave would accrue at a rate of 1 hour for each 30 hours worked

Living Organ Donor Job Security Act(H.R. 2776)

  Status:  In House subcommittee

  Key Features

  • Amends the FMLA to provide federal and non-federal employees with leave related to organ donation tests, evaluations, pre-op and post-op services, and recuperation

Airline Flight Crew Technical Corrections Act(S. 1422)

  Status:  Approved by Senate by unanimous consent on 11/10/09; held at the desk

  Key Features

  • Closes loophole in FMLA that excludes pilots and flight attendants from the Act’s coverage
  • Similar to H.R. 912 which passed House by voice vote in February

Balancing Act of 2009(H.R. 3047)

  Status:  In House subcommittee

  Key Features

  • Amends and expands the FMLA to provide paid sick leave and other family and parent involvement leave; relates to other recently introduced FMLA-related bills
  • Provides 12 weeks of paid leave for workers who must care for family members, newborns, recover from serious illness, or deal with military service deployment of family member
  • Employers with 15 or more employees must provide up to 7 days paid sick leave, accrued annually, as well as --
    • Parental involvement leave that extends to grandparents involved in educational and extra-curricular activities
    • Family wellness leave that allows for leave for regular medical appointments of family members and to assist elderly relatives
    • Domestic violence leave that covers employees and their family members who are victims of violence or sexual assault
  • Leave extends to domestic partners and others
  • Reduces FMLA’s hours-worked requirement, and covers part-time workers
  • Bill’s language is similar to Healthy Families Act

Paid Vacation Act of 2009(H.R. 2564)

  Status:  In House subcommittee

  Key Features

  • Amends FLSA to require companies with 100 or more employees to provide one week paid vacation
  • Three years after enactment, requires these companies to provide two weeks’ paid vacation, and companies with 50 or more employees to provide one week paid vacation
  • Applies to full-time and part-time workers after one year of employment

Supporting Military Families Act of 2009 (H.R. 3403, S. 1543)
  Status:  In House subcommittee and Senate committee

  Key Features

  • Amends FMLA to extend up to 26 weeks of unpaid leave to family members of injured vets for five years after the vet leaves military service, if injury or illness was service-related.

Pandemic Protection for Workers, Families, and Businesses Act (H.R. 4092, S. 2790)

  Status:  In House and Senate committees

  Key Features

  • Guarantees up to seven paid sick days annually for workers infected by H1N1 virus or with flu-like symptoms
  • Employees would decide whether they are too sick to work
  • Covers leave to care for sick child, or child whose school or day care has closed due to spread of contagious illness
  • Covers part-time workers under a different formula
  • Bill would sunset after two years

Note:  Earlier legislation was introduced in the House (the Emergency Influenza Containment Act (H.R. 3991)) that would guarantee five paid sick days for employees sent home by their employers due to a contagious illness.

OSHA

Protecting America’s Workers Act (H.R. 2067, S. 1580)

  Status:  In House subcommittee and Senate committee

  Key Features

  • Numerous amendments to OSHA
    • Expands coverage to federal, state and local governments and airline and railroad industries
    • Increases OSHA whistleblower protections (increasing investigation and adjudication procedures)
    • Increases civil and criminal (repeated and willful violations leading to death or serious injury) penalties; gives employees and families right to challenge reductions of fines and penalties
    • Requires OSHA to investigate all deaths and serious injuries

Nurse and Health Care Worker Protection Act of 2009 (S. 1788)

  Status:  In Senate committee

  Key Features

  • Directs OSHA to issue a standard that requires health care employees to use mechanical lift equipment when moving patients
  • Provides whistleblower protections to health care workers who report violations
  • Establishes $200 million grant program to assist health care facilities to purchase equipment

Arbitration

Arbitration Fairness Act (H.R. 1020, S. 931)

  Status:  In House subcommittee and Senate committee

  Key Features

  • Outlaws pre-dispute mandatory arbitration agreements in employment (unless provided under terms of collective bargaining agreement), consumer and franchise disputes

Immigration

Agricultural Job Opportunities, Benefits and Security Act (H.R. 2414, S. 1038)

  Status:  In House subcommittee and Senate committee

  Key Features

  • Creates 5-year program to identify undocumented agricultural workers and legalize status of those working in U.S. for 2 or more years ending December 2008.  Those qualifying would be issued a blue card and be eligible to apply for permanent residency after working in U.S. agriculture for at least 150 days per year for 3 years or at least 100 days per year for 5 years.
  • Reforms H-2A visa system for agricultural guest workers, including that all jobs first be advertised to U.S. workers

New Employee Verification Act (H.R. 2028)

  Status:  In House subcommittee

  Key Features

  • Mandatory verification process to replace E-Verify
  • Uses state “new hire reporting” portal to create Electronic Employee Verification System (EEVS); replaces Form I-9 system
  • Offers voluntary tool to confirm worker identity thereby combating identity theft

Reuniting Families Act (H.R. 2709, S. 1085)

  Status:  In House subcommittee and Senate committee

  Key Features

  • Amends the Immigration and Nationality Act to allow unused family-based and employment-based visas to be recaptured for future use
  • Includes mechanisms to streamline family-based immigration and reduce long waits that result in illegal immigration

Employee Verification Amendment Act of 2009 (H.R. 2679)

  Status:  In House subcommittee

  Key Features

  • Extends E-Verify as a voluntary program through September 30, 2014
  • Authorizes studies of E-Verify program and extends other immigration programs for 5 years
  • Same sponsor as introduced New Employee Verification Act, which will supplant E-Verify

Secure America Through Verification and Enforcement Act (SAVE) (H.R. 3308, S.1505)

  Status:  In House subcommittee and Senate committee

  Key Features

  • Requires employers to use E-Verify to ensure worker authorization, increases numbers of border patrol agents, and promotes new technology and infrastructure
  • Phases in over 4 years mandatory use of E-Verify by federal government, federal contractors, and employers with 250 or more employees; smaller businesses would undertake gradual implementation

Strengthen and Unite Communities With Civics Education and English Skills Act (H.R. 3249,
S. 1478)

  Status:  In House and Senate committees

  Key Features

  • Promotes the integration of immigrants into U.S. society and workplaces
  • Provides tax incentives to businesses offering English literacy programs to employees
  • Doubles Department of Education funding to states for improved English language classes and expanded access to such classes

H-1B and L-1 Visa Reform Act of 2009(S. 887)

  Status:  In Senate committee

  Key Features

  • Intends to return visa programs to original intent of providing foreign workers when there is shortage of qualified U.S. workers
  • Increases enforcement of terms of these programs, modifies wage requirements, and ensures protections for U.S. worker and visa holders

New IDEA (Illegal Deduction Elimination Act (H.R. 3580)

  Status:  In House subcommittee

  Key Features

  • Amends Internal Revenue Code to make wages and benefits paid to unauthorized aliens non-deductible for federal tax purposes
  • Provides safe harbor to employers who comply with E-Verify and confirm employment eligibility

Improving Methods to Promote Regular Occurrences of the Verification of Employability Status (IMPROVES) Act of 2009 (H.R. 3676)

  Status:  In House subcommittee

  Key Features

  • Would make the federal E-Verify system permanent
  • Allows employers to pre-screen applicants, whereas current law allows verification of eligibility to work only after the individual is hired

Civil Rights

Employment Non-Discrimination Act (H.R. 3017, H.R. 2981, S. 1584)

  Status:  House and Senate hearings held; Obama will sign

  Key Features

  • Prohibits discrimination on actual or perceived sexual orientation or gender identity (exemption for U.S. military, vets’ service groups, and religious organizations), but does not require same benefits for unmarried same sex couples as are offered to married couples
  • First time such bill has been introduced in Senate

Protecting Older Workers Against Discrimination Act (H.R. 3721, S. 1756)

  Status:  In House subcommittee and Senate committee

  Key Features

  • Amends the Age Discrimination in Employment Act to clarify a plaintiff’s burden of proof in lawsuits brought under the ADEA
  • Introduced in response to the Supreme Court’s decision on June 28, 2009 in Gross v. FBL Financial Services, Inc. and intends to “restore vital protections”
  • Allows a plaintiff to establish an unlawful employment practice by showing by a preponderance of the evidence that age was a “motivating factor,” even if other factors contributed to the decision, or that the adverse action would not have occurred absent the employee’s age

Veterans

Wounded Veteran Job Security Act (H.R. 466, S. 1607)

  Status:  Passed House; in Senate committee

  Key Features

  • Amends USERRA to prohibit discrimination or reprisal against service members who seek excused leave to receive treatment for military service-related illness, injury or disability

Veterans’ Worker Retraining Act of 2009 (H.R. 1098)

  Status:  Ordered to be reported (amended) by voice vote

  Key Features

  • Allows veterans to use educational assistance entitlement to pursue full time apprenticeship or other on-the-job training

Military Family Leave Act of 2009 (H.R. 3257, S. 1441)

  Status:  In House and Senate committees

  Key Features

  • Allows active military members and their family members 2 weeks unpaid leave after receiving notice of impending duty
  • Applies to part-time workers and workers in small businesses
  • Provides for reinstatement into same position with same benefits upon return from leave

Post-9/11 Veterans’ Job Training Act of 2009 (H.R. 3337, H.R. 2928)

  Status:  In House subcommittees

  Key Features

  • Expands Post-9/11 G.I. Bill to include subsidy for on-the-job training and apprenticeship programs for Iraq and Afghanistan war vets who do not pursue college programs

Hiring Heroes Tax Incentive Act of 2009 (H.R. 3620)

  Status:  In House committee

  Key Features

  • Amends the Internal Revenue Code to provide income tax credit of 15% of qualified wages to employers hiring members of Ready Reserve, National Guard, and recently-separated veterans

Other

Working Families Flexibility Act (H.R. 1274)

  Status:  In House subcommittee

  Key Features

  • Requires employers to negotiate with employees in response to individual employee requests for changes in number of work hours, work times, and work location; requires employer to meet with employee to discuss request and provide written decision providing specific company information about cost and impact of granting request; gives employee right to initiate federal investigation of denial of request and hearing before administrative law judge

Volunteer Firefighter and EMS Personnel Job Protection Act (S. 1025)

  Status:  In Senate committee

  Key Features

  • Prohibits employers from firing or disciplining volunteer firefighters or EMS workers who miss work to respond to presidentially-declared disaster or emergency relief efforts
  • Allows workers to bring civil actions in U.S. district courts against employers who violate the Act

Tax Equity for Health Plan Beneficiaries Act of 2009 (H.R. 2625, S. 1153)

  Status:  In House and Senate committees

  Key Features

  • Amends Internal Revenue Code to prohibit the taxing of health care benefits of qualified beneficiaries, including domestic partners, that may be part of health-care reform legislation or other legislation

Green Jobs Improvement Act (H.R. 2026, S. 1238)

  Status:  In House subcommittee and Senate committee

  Key Features

  • Amends Workforce Investment Act of 1998 to make “Green Jobs” federal funding available for non-union training programs

401(k) Fair Disclosure and Pension Security Act (H.R. 2989, S. 401)

  Status:  In House and Senate committees

  Key Features

  • Amends ERISA to provide temporary funding relief for defined benefit pension plans
  • Responds to financial markets’ turmoil and decline that leaves plans unable to meet funding requirements under the Pension Protection Act
  • Includes investment adviser and fee disclosure provisions

Federal Oversight, Reform, and Enforcement of the WARN Act (FOREWARN) (H.R. 3042, S. 1374)

  Status:  In House and Senate committees

  Key Features

  • Closes loopholes in WARN Act; increases penalties for violation to double back pay
  • Trigger figures are reduced, to 25 laid-off workers from 50 laid-off workers, and to employers of 75, not 100, employees

Equal Employment for All Act (H.R. 3149)

  Status:  In House committee

  Key Features

  • Amends FCRA to prohibit the use of consumer credit checks by employers against prospective and current employees as part of hiring or firing process
  • Prohibits employers from requesting job applicants to voluntarily submit to credit checks

Emergency Unemployment Compensation Extension Act of 2009 (H.R. 3404, S. 1647; H.R. 3548)

  Status:  In House subcommittee and Senate committee

  Key Features

  • Continues federal extended unemployment benefits programs until the end of 2010 for all states
  • Provides additional weeks’ funding to workers in highest-unemployment states, and requires states to increase regular benefits by $25/week
  • Senate bill sets the unemployment rate threshold at 6%, not 9%
  • Note: a pared-down bill (H.R. 3548) intended to expedite the legislative process was signed by President Obama and became law on November 6, providing an additional 13 weeks of emergency unemployment compensation in states with a 3-month average total unemployment rate of 8.5%.

Employee Stock Ownership Plan Promotion and Improvement Act of 2009 (S. 1612)

  Status:  In Senate committee

  Key Features

  • Amends the Internal Revenue Code to repeal 10% excise tax on S corporations’ distributions that are passed through to ESOP participants in cash
  • Includes other provisions to improve operation of ESOPs

Emergency Retiree Health Benefits Protection Act(H.R. 1322)

  Status:  In House subcommittee

  Key Features

  • Amends ERISA to provide retiree health benefits protections
  • Prohibits profitable companies from canceling or reducing retiree health benefits
  • Requires group health plan sponsors to give retired plan participants the option of benefit restoration

Healthy Workforce Act(H.R. 1897, S. 803)

  Status:  In House and Senate committees

  Key Features

  • Amends the Internal Revenue Code to include a qualified wellness program tax credit to employers for up to 50% of expenses
  • Provides a credit of $200/employee for companies with less than 200 employees and $100/employee for companies with more than 200 workers
  • Is a component of current health reform efforts

Children’s Act for Responsible Employment of 2009 (CARE) (H.R. 3564)

  Status:  In House committee

  Key Features

  • Amends the FLSA to strengthen prohibitions against child labor by narrowing the exemption for children working in agriculture, and increasing civil and criminal penalties for violators

Preserve Benefits and Jobs Act of 2009 (H.R. 3936)

  Status:  In House committee

  Key Features

  • Amends ERISA to protect workers in their 50’s from having pension benefits frozen
  • Extends pension funding relief for employers and strengthens the Pension Benefit Guaranty Corporation
  • Supported by Teamsters
  • Senate companion bill is expected

Extended COBRA Continuation Protection Act of 2009 (H.R. 3930)

  Status:  In House committee

  Key Features

  • Extends for six months the maximum COBRA continuation period for workers involuntarily terminated between 4/1/08 – 12/31/09
  • Extension would not go beyond 12/31/10

Yet To Be Re-Introduced Federal Workplace Legislation

Traditional Labor

Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers (RESPECT) (H.R. 1644, S. 969)

  Status:  In House and Senate committees; Obama co-sponsored
 
 Key Features

  • Reduces number of firstline supervisors who qualify for supervisory status  under NLRA by eliminating duty to “assign work” and “responsibly direct work” from list of qualifying duties and requires that supervisor spend majority of time on remaining qualifying duties

 

Civil Rights

Civil Rights Act of 2008 (H.R. 5129, S. 2554)

  Status:  In House subcommittee and Senate committee; Obama co-sponsored

  Key Features

  • Amends numerous civil rights laws to expand rights and relief
    • Expands disparate impact claims under ADEA to, among other things, use same standards as those under Title VII
    • Outlaws pre-dispute arbitration agreements
    • Removes caps on punitive and compensatory damages
    • Allows compensatory and punitive damages in FLSA claims



Other Labor Initiatives

U.S. Department of Labor, Wage and Hour Division

  • Increasing number of investigators by one-third to refocus agency on FLSA enforcement
  • Contractors on stimulus projects under heightened scrutiny

U.S. Department of Labor OSHA

  • Announced plan to use general duty clause to cite employers for ergonomic and workplace violence injuries
  • Plans to complete standards left uncompleted under prior administration: crystalline silica rule and update to hazard communication standard

DHS, Immigration and Customs Enforcement

  • Shift focus in enforcement activities to employers who hire illegal workers and away from the worker – agents directed to obtain indictments, criminal arrest and search warrants and commitment of local U.S. Attorney to prosecute employer, all before arresting worker
  • Criminal prosecutions of employers expected to increase
  • H-1B fraud also to be focus of scrutiny
 

Please contact Kim Korando with any questions.

Employment, Labor and Human Resources

Employee Benefits and Compensation

Environmental Health and Safety

Government Contracting

Privacy

  • Alicia A. Gilleskie agilleskie@smithlaw.com
  • Frederick R. Zufelt fzufelt@smithlaw.com

Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.

Reproduction in whole or in part is permitted
when credit is given to Smith Anderson.
©Copyright Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. 2012
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