Jottings By An Employer's Lawyer

Friday, October 31, 2008

More Political Predictions

John Phillips over at the The Word on Employment Law, has stuck his neck out to give his predictions on the top 6 legislative acts affecting employers that he thinks may be passed in the next Congress, Impact of Presidential Politics on Employment Law Issues — One Final Look.

His list in order, with my comments:
  1. Employment Non-Discrimination Act - Given that this bill almost passed this Congressional term, I think its passage is almost certain. See my post on September 17, 2007 here. Perhaps the only suspense is whether it will include only sexual orientation or also the more controversial, sexual identity. It was that divide that caused the delay the last time. My guess, we get both.
  2. Fair Pay Restoration Act - also known as the Lilly Ledbetter Fair Pay Restoration Act. I agree this will pass, but I think it actually might be the first. Even the current Congress nearly passed it as six Republicans joined with the Democrats to invoke cloture. Hard to see how it doesn't make it, and make it quickly. The Republicans actually offered an alternative that could be better, taking up the Supreme Court's suggestion in a footnote which indicated that it had not yet decided on the applicability of the discovery rule to Title VII claims. The Title VII Fairness Act would do just that. One difference to be noted is that the Lilly Ledbetter Act only applies to compensation claims, the Title VII Fairness Act all discrimination claims, so some might argue whether it is a better deal or not.
  3. Healthy Families Act - I also agree with John that picking order is difficult and that some form of expansion of the FMLA will pass. This version gives 7 paid sick days, Senator Dodd has a version that would use the unemployment insurance system (probably not as likely) and there are several versions that would either lower the number of employees for coverage and/or expand the reasons that would trigger an automatic leave. Two likely possibilities: victims of domestic violence (averted once before only because of faulty drafting, see here) and school involvement.
  4. Employee Free Choice Act - Clearly this is organized labor's number one item, and if the Democrats have a filibuster proof senate (which while not likely, is certainly possible), it is almost a certainty, and probably is in some form regardless of how the Senate votes turn out. My guess is that the likely "compromise" is to drop the card check provision, since it is the one that catches the most heat for doing away with "secret ballot elections" and instead require "quicky" elections, within a week to ten days after a petition is filed, but retaining the binding interest provision for initial contracts and the enhanced penalties. To me the binding interest arbitration should be the real poison pill for employers, but business better get organized quickly if it wants to make that point.
  5. Civil Rights Act of 2008 - I actually think this bill has more likelihood of passage than John does. Currently because of a quirk in the law, race and most national origin discrimination and retaliation claims are not subject to damage caps, while sex, religion and disability claims are. The current limit is $300,000 in compensatory and punitive damages for the largest companies, and scaled down depending on the number of employees. (Age claims are treated differently.) That's a hard position for members of Congress to argue to their female, disabled and other constituents concerned about possible religious discrimination once it is pointed out. My argument would be to put caps on all claims rather than remove them all, but I don't think that will get much support.
  6. FOREWARN Act– This would amend the WARN act to extend the time that has to be taken into account from 60 to 90 days, which would be a real problem as calculating coverage under the rolling time table is already difficult and this would make it even harder. This actually might get more attention given the recession and all the job lay-offs we are seeing, so it might get bumped up ahead of some of the others.

Two other acts that are high on my radar screen are the Arbitration Fairness Act which would ban requiring an employee to agree to resolve employment related claims by arbitration as a condition of employment, in effect eliminating binding arbitration as a means of avoiding jury trials in employment cases.

The second is the Protecting America's Workers Act which would toughen OSHA's whistleblower provisions, increase the penalties both civil and criminal and expand the coverage to the public sector. The financial crises and its impact on federal, state and local governments might actually hold the expansion to the public sector off for awhile as they could make a powerful argument about the extra cost that might get a sympathetic ear.

Whatever happens Tuesday, the next Congress will be far different for employers than those in the more than recent past. When you are watching the election results, obviously the most important decision will be the Presidency, but a close second will be the number of Senate seats claimed by the Democratic party. The closer to 60, the more likely that any of the above legislation will be passed. The final size of the Democratic control of the Senate might not even be known until December 2nd, if a run-off election is required in Georgia because neither major party candidate received more than 50% of the vote.

The tough decision for the employer community during the next Congress will be whether to go all out to prevent legislation it views as potentially harmful from passing (which will mean fighting over cloture in the Senate), which worked for the Labor Law Reform Act of 1977, or negotiate and get the best deal possible. That's what happened on the recently passed American with Disabilities Restoration Act.

And of course, business should always remember to urge Congress to consider incremental steps, given that employment and labor laws once passed do not get rolled back.

It's going to be an exciting ride. If it's not buckle your seat belt time, it's past time to make sure that you have one.


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