Seven New Labor Law Proposals to Keep an Eye On

By Monica Ginsburg

Aug. 6, 2009

Dozens of worker-friendly laws are making their way through the halls of Congress, including an unprecedented expansion of mandates on small employers, in some cases reaching businesses with as few as 15 employees.

New laws that expand employee rights “sound good and are friendly, but aren’t necessarily good for small businesses,” says Bruce Stickler, a partner specializing in employment and labor relations at Drinker Biddle & Reath in Chicago. “It’s difficult to plan for it and assess it, but the consequences are huge. It puts small-business owners in a trick box.”

From unions to family leave, here are seven to watch:

1. Paycheck Fairness Act: This measure would increase the burden on employers to demonstrate that wage gaps between men and women doing the same work are not based on gender but have a business justification, such as education, training or experience. The act, designed to strengthen the Equal Pay Act, also prohibits employers from ordering employees not to share salary information with co-workers. The Department of Labor is charged with educating small businesses about the law and assisting with compliance. The act would go into effect six months after its passage.

Covers: Employers covered by the Fair Labor Standards Act, which regulates businesses with annual gross sales exceeding $500,000, hospitals, some health care institutions, schools and public agencies.

Status: Passed by the House of Representatives on January 9. The Senate may consider the legislation later this year. According to government watchers, the recent enactment of another pay-equity measure, the Lilly Ledbetter Fair Pay Act, may make further consideration of the Paycheck Fairness Act less of a priority.

2. Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act: The proposed law would amend the National Labor Relations Act by changing the definition of a supervisor. The bill removes the phrases “assign” and “responsibility to direct” from the duties currently associated with a supervisory role and requires that workers spend the majority of a workday in managerial duties in order to be labeled a supervisor. The new definition reduces the number of employees who qualify for the title and makes more employees eligible for union membership. Under current law, employees categorized as supervisors are unable to join a union.

Covers: Businesses covered under the National Labor Relations Act, which regulates employers with more than $500,000 in gross revenues. Does not cover employers who fall under the Railway Labor Act, such as railroads and airlines, and federal, state and local governments.

Status: Introduced in the 110th Congress but has yet to be reintroduced in the 111th Congress.

    3. FOREWARN Act: Would amend the Worker Adjustment and Retraining Notification Act by increasing the notification period for plant closings or mass layoffs to 90 days from 60. The act stiffens penalties for businesses to double back pay plus benefits for the period a business was delinquent in giving notice. The threshold for a mass layoff decreases to 25 employees from 50.

Covers: Employers with 50 or more employees, down from 100 under current law.

Status: Introduced in 2007. Expected to gain new ground with current administration.

4. Employment Non-Discrimination Act: Would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity. The bill is modeled on existing civil rights laws. Prohibits public and private employers, employment agencies and unions from using an individual’s sexual orientation or gender identity as the basis for employment decisions such as hiring, firing, promotion or compensation. Currently, 13 states including Illinois have policies that protect against both sexual orientation and gender identity discrimination.

Covers: Businesses with 15 or more employees. Religious organizations and military are exempt. Does not require domestic partner benefits be provided to same-sex partners of employees.

Status: A version that did not include protections based on gender identity passed the House in 2007.

5. Family Leave Insurance Act: Would amend the Family and Medical Leave Act to provide up to 12 weeks of paid leave benefits to workers who need to care for an ill family member or new child, treat their own illness or deal with the deployment of a member of the military. The act would extend Family and Medical Leave Act leave to employees who need to care for an ill domestic partner or the child of a domestic partner.

Covers: Business covered under the Family and Medical Leave Act, which regulates employers with at least 50 employees. Obama has indicated his support for expanding the Family and Medical Leave Act to cover companies with at least 25 employees.

Status: Introduced on March 25.

6. Healthy Families Act: Would provide up to seven days of paid sick leave for full-time employees working more than 30 hours per week. Part-time employees working more than 20 hours per week get a prorated share of paid leave. Time off can be used to meet an employee’s medical needs or to care for a family member.

Covers: Businesses that have at least 15 employees working 20 or more calendar weeks in the current or preceding year.

Status: Expected to be introduced in Congress.

7. Family and Medical Leave Enhancement Act: Would amend the Family and Medical Leave Act to allow employees up to four hours during any 30-day period, and up to 24 hours during any 12-month period, to attend a child or grandchild’s school or extracurricular activities. Time off also can be used to meet routine family medical care needs or the care needs of elderly family members.

Covers: Employers with between 25 employees and 50 employees.

Status: Referred to a House subcommittee in May.

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