Tuesday, January 1, 2008

United States

New proposed Employment Legislation in the US 

by Philip M. Berkowitz
Nixon Peabody LLP

Congress is now in the (virtual) control of the Democratic Party, but the margin is too narrow for much legislation to pass. This margin may grow after the 2008 elections. Moreover, most pundits predict that the Democrats will re-take the White House in 2008. Thus, an examination of new and proposed legislation from Congress offers a glimpse of what life may be like after the 2008 elections.

Discrimination against Homosexuals 
In September 2007, Congress held hearings on the Employment Non-Discrimination Act (ENDA). This bill would prohibit discrimination against employees on the basis of both sexual orientation and gender identity. It would prohibit discrimination against gay, lesbian, bisexual and transgender employees.

The law would prohibit discrimination not only on the basis of protected status, but also on the basis of perceived protected status. Thus, it would seem to explicitly prohibit discrimination on the basis of sexual stereotypes.

ENDA goes beyond the protection offered by the numerous states, whose laws have already addressed discrimination against homosexuals. For example, the New York Sexual Orientation Nondiscrimination Act (SONDA) prohibits discrimination only on the basis of sexual orientation. Currently, thirteen states have policies prohibiting both sexual orientation and gender identity discrimination in employment, seven states including New York have state laws that prohibit discrimination based on sexual orientation only, and fifteen states have laws that have been interpreted to protect transgender persons.

Arbitration Fairness Act 
The Arbitrations Fairness Act (AFA), introduced in August 2007, would prohibit pre-dispute arbitration agreements that require arbitration of employment, consumer, or franchise disputes. The bill’s authors believe that mandatory arbitration of employment disputes inevitably favors the more powerful party – viz., the employer, because it allegedly favors repeat players (companies), is expensive and time consuming, imposes a shroud of secrecy over employment disputes, and is virtually devoid of judicial review. The Act would overturn fifteen years of Supreme Court precedent which has repeatedly favored arbitration of employment disputes, including claims of discrimination.

Fair Pay Restoration Act 
The Fair Pay Restoration Act (FPRA), introduced in July, would amend several federal employment discrimination statutes to specify that an unlawful job practice occurs each time an employee receives pay resulting from an allegedly discriminatory compensation decision. The bill seeks to supplant the U.S. Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which rejected the "paycheck rule" held that the time limit for filing a discrimination charge only starts to run when the employer makes a discriminatory decision about the employee's compensation.

The FPRA would amend federal anti-discrimination laws to provide that the time limit would be triggered each time wages, benefits, or other compensation is paid, resulting in whole or in part from an unlawful discriminatory decision.

Employee Free Choice Act In March 2007, the House passed the Employee Free Choice Act (EFCA), which aims to amend the National Labor Relations Act (NLRA). The Act would require the National Labor Relations Board (NLRB) to certify a union without an election as the exclusive representative of employees if a majority of the employees in an appropriate unit has signed valid authorizations.

EEOC Guidance on Family Caregivers Finally, one recent development shows an increased interest in enforcement of prohibitions of discrimination against individuals because of their family responsibilities. In April 2007, the Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination laws, issued a “Guidance on Family Responsibilities Discrimination.” The guidance draws attention to the possibility that increased discrimination claims may arise from the increase in dual-income households and the conflict between balancing work and family obligations.

The guidance points out how sex- and age-based notions of family obligations may violate existing laws, and even constitute a hostile environment. While hardly groundbreaking, it reflects an increased focus by the EEOC on this important area. Employers would be well advised to pay attention to their policies, particularly in the areas of leaves of absence and reasonable accommodation for disabilities.