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Although Senators John McCain and Barack Obama disagree on many things, they both pledge “change is on the way” if they are elected. This campaign pledge about “change” is usually interpreted to refer to foreign policy and economic issues, but many understandably wonder whether these changes might also apply to employment law generally, and whether there are substantive differences in the employment law changes each candidate might make.
At least one prominent employer seemed to think this election might impact federal employment law. If recent newspaper headlines are to be believed, a major retailer held meetings to discourage employees from voting for a particular Presidential candidate due to concerns about pending employment-related legislation. The retailer denied the allegation and the story has not resurfaced.
Nonetheless, is there any validity to this employer’s apparent concern about this election having significant employment-related consequences? With this question in mind, this article briefly highlights some of the more significant pending employment legislation, identifies the candidates’ stated or likely positions on each bill, and projects the likelihood of each bill being enacted by either new administration. This article is not being written from a particular ideological viewpoint or to sway votes, but simply to provide an “election guidebook” of sorts, as it relates to the potential changes in employment-related laws. And, as demonstrated by the recent overwhelming bi-partisan support for passage of the recent ADA Amendments Act (S.3406), which both Presidential candidates supported, there clearly are areas where both campaigns are in agreement.
Those disclaimers aside, some of the more significant employment-related legislative items the new administration may face include the following:
New Union Voting Rules
The Employee Free Choice Act (EFCA) (H.R. 800/S. 1041) is likely the most attention grabbing bill of those currently pending. The EFCA would amend the National Labor Relations Act election process for employees to become unionized. Specifically, this bill would eliminate the traditional secret ballot process for union elections and instead require the National Labor Relations Board to certify a union if a majority of employees sign authorization cards. If signed into law, this would be a landmark change in the collective bargaining process.
The House of Representatives passed its version in 2007 but it stalled in the Senate, and both versions have been fairly dormant this year. However, Senator Barack Obama is a co-sponsor of the Senate version of the EFCA, and has signaled it will be an early and major legislative priority for his administration. Senator John McCain has indicated he opposes the EFCA.
Paid Sick Leave
Known as the Healthy Families Act (H.R. 1542/S. 910), these identical bills would require public and private employers with more than 15 employees to provide paid sick leave to their full and part-time employees. Employees working more than 30 hours per week would accrue up to seven days of paid sick leave annually, while part-time employees (more than 20 hours per week) would receive a pro-rata share of paid leave. This leave could be used on an hour-by-hour basis or in the smallest increment the employer’s payroll system tracks, and may be used for the employee’s illness or medical visits, or to care for a sick child, parent, spouse, domestic partner or other individual related by blood.
The Democratic majority has identified these bills as a major legislative priority, and Senator Obama is a co-sponsor. Senator McCain has signaled he opposes these bills.
Prohibition on “Sexual Orientation” Discrimination
Known as the Employment Non-Discrimination Act of 2007 (H.R. 3685), this bill would amend Title VII to prohibit discrimination based on sexual orientation, and require employers to provide reasonable access to facilities consistent with the employee’s identified gender. This bill previously passed the House by a sizable margin, and appears to be gaining momentum and legislative support, particularly after dropping language prohibiting discrimination based upon “gender identity.” Senator Obama has indicated he supports this bill. Senator McCain does not appear to have taken a public position on this particular bill.
Equal Pay Act Amendments
Known as the Paycheck Fairness Act (H.R. 1338) this bill seeks to amend the Equal Pay Act (EPA) and the Fair Labor Standards Act (FLSA) to further eliminate gender-based wage discrimination. This bill would remove the caps on compensatory and punitive damages for EPA violations, and either eliminate completely or make it more difficult for employers to assert defenses for wage differential such as where pay disparities flow from factors other than gender. This bill would also amend the FLSA to prohibit employers from precluding employees from discussing their wage information. This bill recently passed the House by a sizable margin and will proceed to the Senate, where a similar bill co-sponsored by Senator Obama has recently been introduced (S. 766). It does not appear Senator McCain has taken a public position on this bill.
New Statute of Limitations for Title VII and Equal Pay Act Claims
Known as the Lilly Ledbetter Fair Pay Act (a.k.a. the Fair Pay Restoration Act (H.R. 2831/S. 1843)), these bills would amend Title VII’s statute of limitations in response to the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. (2007) 127 S. Ct. 2162. In Ledbetter, the Court held the statute of limitations for a gender discrimination and equal pay act claim commenced upon the original discriminatory decision and did not restart with each successive paycheck flowing from this original decision.
This bill would re-start the statute of limitations each time an employee receives a check or a retiree receives an annuity check, thus potentially permitting suit years after the original discriminatory decision. This bill would also permit family members of employees and others “affected by” alleged discrimination to sue.
This bill has previously passed the House, but stalled in the Senate in April 2008, falling several votes short to invoke cloture. Senator Obama is a co-sponsor of the bill and voted to invoke cloture. Senator McCain did not vote during the April 2008 cloture vote, but his comments during the third Presidential debate suggest he opposes this bill.
Notably, Republican senators recently submitted the Title VII Fairness Act (S. 3209) which would reaffirm that the statute of limitations is generally measured from the original discriminatory action unless the employee demonstrates she was unaware of or should not have known of the discriminatory action, in which case the limitations period would commence from the date of discovery. This just-introduced bill remains pending in the Senate, but its introduction suggests a compromise may be possible.
Minimum Wage Increases
Effective July 24, 2008, the federal minimum wage increased to $6.55 per hour. On the campaign trail, Senator Obama has signaled support for future minimum wage increases, including potentially beyond the increase to $7.25 scheduled for 2009. Senator McCain has not signaled support for any specific future minimum wage increases, but has generally voted against prior minimum wage increases, except for the most recent increase.
Arbitration Agreements
Known as the Arbitration Fairness Act (H.R. 3010/S. 1782) these bills would amend the Federal Arbitration Act to prevent employers from requiring employees to agree to arbitrate future employment disputes as a condition of employment. These bills remain pending in their respective chambers, but appear to be gaining legislative momentum.
It is not presently clear whether Senator Obama or Senator McCain actively supports or opposes the bill, but it is foreseeable Obama would sign while McCain would veto this bill if passed by Congress.
Immigration/Employment Verification
Senators Obama and McCain both initially supported last year’s proposed “comprehensive immigration reform” bill proposed by President Bush, with Senator McCain being one of its primary sponsors. In the absence of a comprehensive bill, many states and both parties have increasingly focused on enforcement efforts, with employment verification programs a hotly-debated topic. Notably, in September 2008, Congress approved only a six-month extension of its federal E-Verify program, which will expire in March 2009, suggesting the next administration will have an early debate on immigration-related issues.
In summary, there is a full plate of federal legislation potentially affecting employers, whoever the new President will be.
Michael S. Kalt (mkalt@wpkt.com or 619.236.9600)
Leonid M. Zilberman (lzilberman@wpkt.com or 619.236.9600)
Wilson, Petty, Kosmo & Turner LLP
San Diego, California |
