New Presidential Administration – New Employer Mandates

First –

On January 29, 2009, President Barack Obama signed his first article of legislation into law: the Lilly Ledbetter Fair Pay Act of 2009.  The Act overturns a controversial decision issued by the U.S. Supreme Court which significantly impaired employees’ opportunity to file suit for pay discrimination. According to the Court’s ruling, the statute of limitations, within which employees were required to file suit, began to run when the underlying pay decision was made, not from the point at which the employee received the paycheck being challenged.

The Lilly Ledbetter Fair Pay Act effectively reverses the Supreme Court’s ruling, and amends Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) and the Rehabilitation Act, to allow pay discrimination claims to be filed within 180/300 days of the issuance of the last discriminatory paycheck, regardless of how long ago the actual compensation decision was made. 

Companies will have to devise comprehensive recordkeeping policies and practices to counter potential claims of pay discrimination.  This act goes into effect on 5/28/09 but applies to cases filed after 5/28/07.

Then –

On February 17^th, the American Recovery and Reinvestment Act of 2009 revised COBRA requirements to entitle employees involuntarily terminated during the economic downturn to a period of subsidized COBRA continuation coverage.  Qualified individuals pay 35 percent of their ordinary COBRA premium for up to nine months.  The new rules require employers to:

1.       Identify "eligible individuals," which includes anyone who was or becomes eligible for COBRA (including those who'd previously declined it) between September 1, 2008 and December 31, 2009.  Those who lost their jobs between 9-1-08 and ARRA enactment and did not opt into COBRA will get a 2nd 60-day period to opt in ;

2.       Provide these individuals with notices (which the Labor Department is to develop within 30 days of February 17^th); and

3.       Pay 65 percent of their COBRA insurance premiums for up to nine months in return for a credit against their quarterly payroll taxes.

Although a revised model notice and other practical assistance is eagerly awaited, a fact sheet, FAQs, a new workplace poster (in two sizes), and flyers for employers and employees have been published. 

Still to come –

Republican members of the House and Senate concurrently introduced bills to amend the National Labor Relations Act (“NLRA” or the “Act”) to mandate that employees have the right to secret-ballot elections when deciding whether they want to be represented in collective bargaining by a union (the Secret Ballot Protection Act, H.R. 1176 and S. 478). 

Both versions of the amendment are intended to counter a bill, the Employee Free Choice Act (“EFCA”), that House and Senate Democrats plan to reintroduce sometime this year.  The three main effects of the EFCA, which was passed by the House but not the Senate in 2007, would be:

1.       To eliminate the need to have a NLRB-monitored secret ballot election if over 50% of the employees in a proposed collective bargaining unit have signed authorization cards.  While the EFCA would not completely eliminate the possibility of secret-ballot elections, as a practical reality, an employer could not insist on a secret-ballot election;

2.       To impose terms of the first collective bargaining agreement by a federal arbitrator, if there is no agreement between the employer and the union within 120 days (90 days of negotiation followed by optional 30 days of mediation); and

3.       To impose stiffer penalties, including triple back pay and injunctive relief, for employer violations during union organizing.