Monday, January 20, 2020
Thursday, 11 November 2010 15:05

Where Are We in 2010? - Pending Legislation

Written by Carrie Cherveny

We entered 2010 with a myriad of pending employment law related legislation. It’s now October. Below is an update of some of the current pending legislation: 

The Employment Nondiscrimination Act (ENDA) Federal laws protect employees from discrimination in the workplace on the basis of race, national origin, sex, religion, disability, pregnancy and age, but not on the basis of sexual orientation. However, the U.S. Supreme Court has ruled that federal bans on workplace sexual harassment apply when both parties are of the same gender. In the 110th Congress, the House passed the Employment Non-Discrimination Act (ENDA) by a vote of 235-184, but the issue was not taken up by the Senate. It is expected that ENDA will be reintroduced in the new Congress and will be expanded to include provisions to prohibit discrimination based on gender identity.

The Employee Free Choice Act (EFCA) Yes, it’s still alive! Under the terms of the National Labor Relations Act (NLRA), enacted in 1935, a union can seek to be certified as the collective bargaining agent for an organization’s employees through a secret-ballot election. Under limited circumstances, employers can also allow recognition of the union through a card check process if the union obtains a majority of employee authorization cards from the workforce unit. This proposal would amend the organizing rules provided by the NLRA by allowing unions to bypass private ballot elections in favor of the card check process. If EFCA were to be enacted, it would compel an employer to recognize a union if 50 percent plus one employee in a bargaining unit sign authorization cards. In the 110th Congress, the House passed EFCA, but it died in the Senate after a successful filibuster.

* This bill is in the first step in the legislative process.1

Healthy Families Act President Obama said during his campaign that workplace flexibility would be one of his administration’s priorities. The Healthy Families Act—legislation to mandate paid sick leave— will come up in the 111th Congress. In addition, paid leave proposals may surface again throughout state legislatures.

* This bill is in the first step in the legislative process.

Paycheck Fairness Act The Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 prohibit gender-based discrimination in the workplace. Depending on performance and seniority, jobs that have the same functions, similar working conditions and require relatively equal skill must be compensated equally. The Paycheck Fairness Act has been introduced to amend the Equal Pay Act to require employers to use comparable worth pay systems.

* This bill was considered in committee, which has recommended it be considered by the Senate as a whole.

Family and Medical Leave Act Yes, it may change again! Recent legislative initiatives have proposed expansions of the FMLA, including paid leave and expanded eligibility for the duration of leave. Although FMLA regulations were recently revised by the Department of Labor, HR professionals continue to have two primary concerns with the regulations—the definitions of “serious health condition” and “intermittent leave.” Congress expanded the scope of the FMLA in 2008, and expansion is likely in the next Congress. For example, the proposed Family Leave Insurance Act would provide for some paid leave and the Family and Medical Leave Inclusion Act would permit leave to care for a same-sex spouse, domestic partner, parent-in-law or grandparent.

* This bill is in the first step in the legislative process.

Employer Provided Educational Assistance Section 127 of the Internal Revenue Code allows an employee to exclude from income up to $5,250 per year in educational assistance at the undergraduate and graduate level, regardless of whether the education is job-related. Section 127 has been extended eight times, most recently in 2001. It is set to expire at the end of 2010. SHRM research has found that 65 percent of employees are using Section 127 to pursue degrees in fields where U.S. employers currently experience a shortage of skilled workers. The ongoing temporary extension of Section 127 causes confusion for employees and employers alike. Over the years, there have been efforts to make Section 127 permanent, but the current economic crisis will make another attempt difficult. However, efforts to extend Section 127 will begin in earnest in the 111th Congress.

* This bill is in the first step in the legislative process.

Weapons in the Workplace Unfortunately, a major trend in workplace violence involves gunrelated incidents. According to the U.S. Bureau of Labor Statistics, 491 of the 610 homicides committed in U.S. workplaces in 2007 were the result of shootings. Homicides involving guns are the fourth-leading cause of occupational deaths in the U.S. and the leading cause of workplace deaths for women. The Occupational Safety Health Act mandates that employers provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In the 2006 SHRM Weapons in the Workplace Survey Report, 98 percent of respondents suggested employers should be allowed to restrict weapons in the workplace. SHRM believes the freedom of employers to assess the safety needs of their organizations and establish appropriate policies is essential to the overall success and sustainability of their workforces. Eight states have enacted legal measures that restrict an employer’s right to enforce a no-weapons policy on company property. Other states (particularly in the Midwest and South) are expected to consider this legislation in future sessions.

* This bill is in the first step in the legislative processntroduced bills and resolutions first go to committees that deliberate, investigate and revise them before they go to general debate. The majority of bills and resolutions never make it out of committee.