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Bar News - January 16, 2009


Labor Law Agenda for 2009 and Its Impact on Employers

By:

Julie A. Moore

I recently attended the annual Leadership Conference for the Society for Human Resources Management (SHRM) in Virginia and the buzz was all about all the new workplace legislation that is on the horizon under the new Obama Administration. SHRM 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 so-called Employee Free Choice Act), implementing paid sick leave benefits (as Washington, D.C. and San Francisco presently 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, is also expected.

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

Though the legislative process can yield wildly different results from the bills that were initially proposed, below is a synopsis of some of the most oft-discussed proposals that President-Elect Obama supports and which are likely to be signed into law this year.

Employee Free Choice Act (EFCA) (HR800/S 1041)

This legislation would amend the National Labor Relations Act and change the procedures by which employees choose whether to join a union. The bill would eliminate the secret-ballot election process and mandate that a card check process be used in collective bargaining. 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.

Last year, the EFCA passed the House, but was short nine votes in the Senate. Democrats overwhelmingly support the bill, as does President-Elect Obama, who co-sponsored the Senate version of the bill and campaigned on a pro-union platform.

Practice Pointer: Businesses can respond by taking a number of steps to affirmatively espouse a union-free management objective, and proactively address potential areas of employee discontent. (See the website version of this article for a detailed list.)

Employment Non-Discrimination Act (HR 3685)

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. While New Hampshire already recognizes sexual orientation as a protected category under RSA 354-A, this would create a federal mandate and could apply to New Hampshire businesses with operations in other states as well.

Gender identity is an individual’s own sense of identification as male or female and, if added as a protected category, would protect transgender workers. 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.

Practice Pointer: While the New Hampshire Commission for Human Rights has offered protection to transgender workers in the past, 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 (S 1843/HR 2831)

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.

Practice Pointer: New Hampshire employers should audit the pay of their employees to ensure that it is fair and nondiscriminatory when considering gender as well as the other protected categories, i.e. race, national origin, religion.

Paycheck Fairness Act (S 766/HR 1338)

Another proposed amendment to equal pay laws 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. Further, the bill prohibits retaliation and removes caps on compensatory or punitive damages for pay discrimination violations.

Practice Pointer: Take a proactive approach to assess employees’ pay and ensure that an employee cannot reasonably argue that a pay differential is gender-based.

Employee Misclassification Prevention Act (S 3648)

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 website of the U.S. Department of Labor (DOL) and to provide the name and contact number for the state DOL 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.

Practice Pointer: New Hampshire’s law related to the classification of employees and independent contractors was amended effective January 1, 2008, and the Department of Employment Security provides excellent resources that will assist employers in complying with the state law. Employers would be well-advised to assure that they are in compliance with state law, have contracts in place with all independent contractors, and are otherwise vigilant about the danger of improperly classifying workers.

Healthy Families Act (S 910)

This legislation would require employers with fifteen (15) or more employees to provide seven (7) paid sick leave days per year to those employees who work at least thirty (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 twenty (20) hours per week would receive a pro-rated share of sick days.

Practice Pointer: Employers need not amend their benefits policies at this time, as paid time off is not currently mandated under the Family and Medical Leave Act or other state or federal law. If the legislation passes, however, a review and revision of sick leave and other benefit policies is a must.

Given the current employment law landscape, New Hampshire attorneys should carefully monitor these and other pieces of legislation that come before Congress in this legislative session.

Julie Moore is president and founder of Employment Practices Group in North Andover, a human resources and employment law consulting practice. She is the clerk of the NH Bar Association’s Labor and Employment Section. More information can be found on www.EmploymentPG.com.

Note: Moore will be a panelist at the CLE "What’s New at the EEOC" at the Midyear Meeting on Jan. 23. Visit http://www.nhbar.org/about-the-bar/mym.asp for further information and to register.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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