2009 brings with it a new presidential administration and a Congress in Washington, D.C., which is dominated by democrats. Since democrats took control of the House and the Senate, a number of employee-friendly pieces of legislation have been filed that will, if passed and signed into law, significantly expand employee rights and modify statutes such as the National Labor Relations Act (“NLRA”) and the federal Civil Rights Act.
On January 29, 2009, President Obama signed into law, the Lily Ledbetter Fair Pay Act of 2009 (“Fair Pay Act”) which amends Title VII of the Civil Rights Act (“Title VII”), the Age Discrimination and Employment Act of 1967 (“ADEA”), the Americans with Disabilities Act of 1990 (“ADA”) and the Rehabilitation Act of 1973 (“RA”). The Fair Pay Act provides that an unlawful, discriminatory employment practice occurs when: (1) a discriminatory compensation decision or other practice is adopted, (2) an individual becomes subject to the decision or practice, or (3) an individual is affected by the application of the decision or practice, including each time compensation is paid. Among other things, the Fair Pay Act would provide the additional remedy of back pay to the aggrieved individual for up to two (2) years and extends the time frame for the filing of a pay discrimination lawsuit.
On January 9, 2009, the Paycheck Fairness Act (“Fairness Act”) passed in the House of Representatives. The Fairness Act would amend the Fair Labor Standards Act (“FLSA”). The FLSA is the federal law governing minimum wage and overtime compensation. If the Fairness Act passes, wage rate differentials between men and women would be limited to bonified factors such as education, training or experience. Introduction of the Fairness Act and its passage in the House of Representatives is a direct result of the number of studies that have been conducted and reported over the years that still show that women, on average, make less than men and, depending on what segment or sector of the economy is being examined, that difference can range anywhere from 25 to 35 percent depending upon the report or study. Available remedies under the Fairness Act include compensatory and punitive damages.
It is likely that another bill originally introduced during the 2007 legislative session referred to as the Employee Free Choice Act (“Free Choice Act”) will be reintroduced in this 2009 legislative year. The message from Washington is that the Free Choice Act will pass. It will amend the NLRA. Currently under the NLRA, if a majority of employees present a signed petition to form a union, the National Labor Relations Board (“NLRB”) conducts and holds an election to certify the union. The Free Choice Act will eliminate the election process and provides that, upon presentation of a petition by a majority of the employees that would make up the collective bargaining unit to the NLRB, the NLRB would be required to certify the petition and order the parties to bargain, which is a major change. The Free Choice Act would further amend the NLRA to expand the remedies available to an aggrieved employee under the NLRA to include back pay and would also impose the potential for significant penalties against an employer who violates an employee’s rights under the NLRA.
Whether the other two pieces of legislation discussed in this article will become law remains to be seen. It is important to note, however, the Fair Pay Act became law on January 29, 2009 and the Fairness Act has already passed the House of Representative and has been sent to the Senate. It is anticipated by many that the Fairness Act and the Free Choice Act will become law some time this year.
A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice. This article has been reprinted with the permission of Lee Building Industry Association,www.bia.net. Questions regarding the content of this column or past columns may be e-mailed to Christina Harris Schwinn at firstname.lastname@example.org. To view past columns written by Ms. Schwinn please visit the firm’s website atwww.paveselaw.com. Ms. Schwinn is an experienced employment lawyer and a partner with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone: (239) 336-6228; Telecopier: (239) 332-2243.