Legally Speaking: Workplace Legislation in the 111th Congress

Bob Dunlevey

Bob Dunlevey is an attorney with Dunlevey, Mahan & Furry (www.dmfdayton.com) in Dayton, Ohio. He is well recognized for his counseling and defense of businesses having employment-related issues, including federal and state court litigation and OSHA proceedings, wage-hour compliance, collective bargaining, wrongful discharge defense, and regulatory compliance. He can reached at rtd@dmfdayton.com.

October 1, 2008

It is anticipated that this fall’s election will cause the upcoming 111th Congress to enact some of the most sweeping changes to employment laws that have ever occurred. Employers need to familiarize themselves with the candidates’ positions on these proposed laws before voting. Moreover, employers need to understand the impact of this intended legislation so that they can prepare themselves for limiting their exposure to liabilities.

One of the ways politicians attempt to endear themselves to constituents is to propose employment legislation providing better wages, benefits, working conditions, and employment rights to those in our work force. This campaign season certainly is no exception to that rule. Many employment law experts call these anticipated changes in our employment laws “revolutionary” and “sweeping.” Many employers may just consider these proposed laws to be “threatening.” Here are a few of the potentially revolutionary employment-related legislative changes anticipated:

The Employee Free Choice Act changes labor law provisions in existence for over 75 years and eliminates a secret ballot election in a union representation proceeding. Instead, if the union obtains authorization cards of more than 50 percent of employees, the union would automatically be installed. And, if the company and the union don’t successfully negotiate a “first contract” in 90 days, one will be imposed. Organized labor believes this is the single most important piece of legislation in the 111th Congress, earmarked as the primary way for unions to regain power.

The ADA Amendment Act overrides several U.S. Supreme Court decisions that had construed the federal disability act conservatively. The definition of “disability” is construed broadly in this proposed law and thereby gives many more employees protection under the Act. For example, even if a hearing device restores hearing to 100 percent, the employee will be considered to have a substantial limitation. These amendments will cause an explosion of ADA litigation.

The Paycheck Fairness Act ensures women earn the same as their male counterparts and secures additional rights and civil remedies for violation of equal pay laws.

The Employment Non-Discrimination Act prohibits employers, employment agencies, and labor organizations from discriminating against workers based on sexual orientation. Federal law and most states’ laws do not prohibit such.

The Federal Healthy Families Act guarantees to employees 7 paid days off for personal illness, injury, or medical condition, as well as preventive health care, and would also secure this entitlement for time off for the needs of an employee’s children, spouse, or parents. It applies to employers with 15 or more employees. The right to sue employers over violations along with significant damages is secured by the proposed law as well. It is similar to the Ohio Healthy Families Act recently deemed too costly for enactment by Ohio Governor Strickland and withdrawn by its proponents. This proposed federal law was mentioned from the floor of the Democratic convention just recently.

The Civil Rights Act Amendment would remove the statutory cap on damages under Title VII of the Civil Rights Act and the Americans with Disabilities Act, leaving employers exposed to unlimited damages in these cases. It would also bar mandatory pre-dispute arbitration of EEO claims and allow compensatory and punitive damages as remedies under our federal wage-hour law. This legislation also gives the NLRB authority to award back pay to undocumented employees.

The Fair Pay Restoration Act amends Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act to make it easier for employees to sue for pay discrimination by restarting the statute of limitations each time a paycheck is issued.

The Re-Empowerment of Skilled Professional Employees and Construction Tradeworkers (RESPECT) Act would amend the National Labor Relations Act and upset case precedent exceeding 50 years in duration to change the definition of a supervisor so that supervisors with limited authority would no longer be excluded from bargaining units—thus making supervisors part of the union and no longer aligned with management.

With regard to the U.S. Supreme Court, at least two Justices may be replaced during the next presidential term—Stevens and Ginsburg. These appointments could seriously impact the rights of employees and the obligations of employers for decades to come.

Pay attention to the position of the candidates as we move toward the election, because their election to office may dramatically impact your ability to operate your business and to make a profit.

Disclaimer: This discussion is generalized in nature and should not be considered a substitute for professional advice. Readers are advised to contact counsel before embarking on any of the options discussed in this article.