Labor law initiatives for ’09: an overview

The Society for Human Resources Management predicts that the 111th Congress will have the most active and sweeping workplace policy agenda that we have seen in the last 30 years. Employment law practitioners agree that the new legislative enactments will affect how law firms, their corporate clients and employers everywhere do business. And it likely won’t be “business as usual.” Employees, not employers, are expected to greatly benefit.

Key initiatives include dramatic changes to labor laws by revamping the union organizing process (under the Employee Free Choice Act), implementing paid sick leave benefits (as Washington, D.C., and San Francisco already have), providing enhanced gender non-discrimination in pay decisions, and forbidding discrimination in the workplace on the basis of sexual orientation and gender identity. Increased regulatory enforcement activity on human resources issues, such as safety, also is expected.

Employers also should be on the watch for activity at the Equal Employment Opportunity Commission, which will be crafting rules and regulations to implement the Americans with Disabilities Act Amendments Act, which went into effect Jan. 1.

Though the legislative process can yield wildly different results than the bills initially proposed, here is a synopsis of some of the most discussed proposals that President Obama supports, and which are likely to be signed into law this year:

• Employee Free Choice Act (EFCA): This legislation would amend the National Labor Relations Act and change the procedures by which employees choose whether to join a union. Employers would be required to bargain with a union if a simple majority of employees sign union authorization cards. In effect, because unions would not have to notify employers of an organizing campaign, a union could win representation before an employer was aware of the unionization effort. Shortened time lines for negotiating a contract and the assignment of mandatory federal mediation and an arbitration board are part of the proposal.

• Employment Non-Discrimination Act: This bill would amend Title VII of the Civil Rights Act of 1964 by adding an employee’s actual or perceived sexual orientation and possibly gender identity to the listing of protected categories covered under the law. The bill would prevent discrimination in employment on the basis of gender identity and include a reasonable access requirement to certain facilities that are not inconsistent with an employee’s identified gender.

While New Hampshire already recognizes sexual orientation as a protected category, this new legislation would create new responsibilities for New Hampshire employers, including the need to revamp their discrimination and harassment policies and to add to their training programs specific education on gender identity as a protected class.

• Lilly Ledbetter Fair Pay Act: While laws are on the books to provide for equal pay for equal work, regardless of gender, under both Title VII and the Equal Pay Act, gender disparity in pay still exists. This legislation would overturn the U.S. Supreme Court decision involving Lilly Ledbetter and Goodyear Tire & Rubber Co., which affirmed that plaintiffs have 180 days under the applicable statute of limitations to file suit if they are the victims of discrimination concerning their pay.

Under this proposal, a so-called “paycheck rule” would be in effect, thereby “restarting” the time within which to file a charge each time a paycheck is received. Moreover, family members and others affected by the alleged discrimination would have standing to file a claim.

• Paycheck Fairness Act: This measure would require employers to affirmatively demonstrate that pay differentials are not based on gender, restrict employers’ defenses when pay disparities exist, and facilitate class action lawsuits by automatically including employees in the class unless they opt out. The bill also would prohibit retaliation and remove caps on compensatory or punitive damages for pay discrimination violations.

• Employee Misclassification Prevention Act: This legislation would require employers to expressly notify workers as to whether they are classified as employees or independent contractors. Additionally, employers would be required to provide information to workers on employee rights as outlined on the Web site of the U.S. Department of Labor and to provide the name and contact number for the department’s state office, so it can be contacted if individuals believe they have been misclassified. This bill would provide penalties for employers who misclassify workers, and it would require that 25 percent of the federal DOL’s wage and hour audits focus on misclassification issues.

• Healthy Families Act: This legislation would require employers with 15 or more employees to provide seven paid sick leave days per year to those employees who work at least 30 hours per week. The paid time off could be used for the employee’s medical needs or a family member’s medical needs. Employees who work a minimum of 20 hours per week would receive a pro-rated share of sick days.

Julie Moore, president and founder of Employment Practices Group, North Andover, Mass., is clerk of the New Hampshire Bar Association’s Labor and Employment Section, For more information, visit on