Monday, February 9, 2009

Employment Law in the News

There is a lot of new legislation working its way through Congress – many of which effect how we run our businesses. Here is an update of new information and legislation.

Early Results Mixed for Union Agenda
Although the first bill signed into law by President Obama was a union-backed measure, there has been no legislative action thus far on several pro-labor initiatives, such as the unions' top legislative priority, the Employee Free Choice Act.

Last week, the House of Representatives voted mostly along party lines to approve the Senate's version of the Lilly Ledbetter Fair Pay Act. The legislation, which Obama signed Jan. 29, overturns a 2007 U.S. Supreme Court decision that enforced a strict 180-day statute of limitations for filing discriminatory compensation claims under the Civil Rights Act of 1964. It effectively extends the deadline for filing claims by providing that a violation of the law occurs each time compensation is paid if it results from a discriminatory pay decision made in the past.

In addition to claims under the Civil Rights Act of 1964, the new law applies to claims of discriminatory compensation under the Americans With Disabilities Act, the Rehabilitation Act of 1973, and the Age Discrimination in Employment Act of 1967.

Supporters of the Fair Pay Act argued that the Supreme Court decision unfairly required claims to be filed at the time of the first discriminatory paycheck, even though it might be years before a victim becomes aware of the discrimination. Opponents argued that the legislation would lead to a flood of lawsuits, based on decades-old facts, which would be difficult or impossible for employers to defend.

Meanwhile, Congress has yet to take up EFCA. Sometimes called the "card check" bill, EFCA would allow unions to be certified without a secret ballot election if a majority of workers signed authorization cards. Once thought to be on a fast track for passage, the bill is now on a back burner because of economic concerns. Democratic leaders believe the bill might be considered some time in the spring or summer.

When the bill does come up for consideration, it is likely to be significantly amended. Support among some Senate Democrats has weakened because of opposition from business groups, spurring some proponents to talk of compromise. President Obama, a co-sponsor of the legislation in 2007 when he was a senator, has also signaled his willingness to consider modifications to accommodate businesses' concerns.

E-Verify Contractor Rule Delayed Again
The federal government has agreed to further postpone, until May 21, regulations implementing an executive order that requires federal contractors to use E-Verify, the U.S. Department of Homeland Security's electronic employment eligibility verification system.

The regulations originally were scheduled to take effect Jan. 15. They require covered federal contractors to use E-Verify to check the employment eligibility of all employees hired after Nov. 6, 1986, and assigned to a federal contract, as well as all new employees hired during the contract term—regardless of whether the new hires are assigned to a federal contract.

A coalition of business groups led by the U.S. Chamber of Commerce filed suit in December challenging the legality of the executive order that the regulations purport to implement. Because of the lawsuit, the government agreed early last month to suspend the rule until Feb. 20. Last week, both sides reached an agreement to further extend the applicability date to May 21. According to a spokesman for DHS's Citizenship and Immigration Services, the postponement will give the Obama administration "an opportunity to review the rule prior to its widespread implementation."

Earlier this month, President Obama's chief of staff, Rahm Emanuel, issued a memorandum to the heads of all executive departments and agencies saying that agencies should "consider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect."