Regardless of the outcomes in the upcoming elections, it’s likely that a wave of changes is coming to the human resources’ side for most organizations. These changes may vary somewhat in their final format and impact, but the expectation is that several pieces of pending federal legislation will be passed in some form. The following summary of these proposed legislative actions is not intended to suggest that any individual piece is either positive or negative. Rather, it is designed to simply inform business executives and HR professionals about what may occur in the next few months. Due to the impact of some of these potential changes, it’s to the benefit of every business organization to educate and prepare its supervisors and managers now, rather than waiting to feel the impact.• The Employee Free Choice Act (EFCA) not only increases the opportunity for a union to organize a workforce, but also imposes a burden on the employer to reach an initial settlement with the union.
-EFCA provides that a union can be certified as the employees’ bargaining representative based on a majority of the covered employees signing authorization cards, with no actual election occurring.
- The employer must not only meet within 10 days after being requested to do so by the new union, but if no agreement is reached within 90 days of initial bargaining, either party can request federal mediation involvement. Then, if no agreement is reached within the following 30 days, either party can request binding arbitration. An arbitration panel will apparently have authority to impose contract terms where no agreement has been reached.
- Monetary penalties for committing an unfair labor practice will significantly increase regarding back pay to an affected employee, as well as civil penalties against the business.
• The Working Families Flexibility Act provides employees with the right to individually bargain over the number of hours and times the employee is required to work.
• The RESPECT (Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers) Act increases the standard for a person to be classified as a supervisor under the National Labor Relations Act, meaning some current supervisors may be reclassified as employees and therefore become subject to union organizing. This may also change their status regarding exempt / nonexempt, which could mean significant additional overtime charges for employers.
• Under the Patriot Employers Act there would be a 1% tax credit for any business taxpayer who, among other requirements, remains neutral in employee organizing drives, maintains an equal ratio of full-time workers in the United States compared to outside, pays at least 60% of employees’ health insurance premiums, and maintains a retirement plan that matches at least 5% of employees’ contributions.
• Damages for gender, religion, and disability discrimination will potentially increase under the Equal Remedies Act. The bill removes the limits on the dollar amount of damages awardable to ensure the amounts for gender, disability and religious discrimination claims match those available to individuals who bring claims for race or national origin discrimination. It would apply in cases of intentional employment discrimination, for pecuniary and non-pecuniary losses and punitive damages.
• Protection for employees’ gender identity, as well as sexual orientation, would be broadened by the proposed Employment Non-Discrimination Act. The proposed federal law would prohibit discrimination against employees on the basis of sexual orientation and gender identity, making both of these protected classes. In addition to sexual orientation protection, the bill is likely to include protection for those undergoing gender reassignment, as well as those who choose not to make a physical change, but whose attire and persona depict a different gender from that identified on their birth certificate.
• The time limitations for pursuing pay discrimination claims would be uniformly lengthened by the Ledbetter Fair Pay Act. This act would amend Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans With Disabilities Act of 1990, and the Rehabilitation Act of 1973 to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes. This change would dramatically alter the statute of limitations currently in existence and allow employees to wait until just before departure or retirement to bring forward such a claim and would likely substantially increase the amount of the awards.
• The Healthy Families Act that didn’t make it to the floor during the 2005 session is likely to reappear next year. If fashioned as before, it would require employers with 15 or more employees to provide paid time off to employees who work 20 or more workweeks a year, to provide a minimum paid sick leave of: (1) seven days annually for those who work at least 30 hours per week; and (2) a prorated annual amount for those who work less than 30 but at least 20 hours a week. It would allow employees to use such leave to meet their own medical needs or to care for the medical needs of certain family members.
Updated
