Employment Law Issues to Watch For in 2009

Sidney Gold, Esq. & Kelly Dobbs Bunting, Esq. on 03/09/2009

    Practitioners of labor and employment law have already seen one promise made in the 2008 election fulfilled - the passage of the Lilly Ledbetter Fair Pay Act, the first bill signed into law by President Obama this past January.  The new law amends Title VII of the Civil Rights Act of 1964 and other federal EEOC laws by stating that an unlawful employment practice occurs when: a discriminatory pay decision or other practice is adopted, or an individual becomes subject to the decision or practice, or an individual is affected by the application of the decision or practice, including each time he or she receives a paycheck.  The ADA Amendments Act of 2008 also became law.  The Act expands the definition of what sorts of disabilities substantially limit a major life activity, disallows consideration of “mitigating measures” with a few exceptions, and includes disabilities which are episodic or in remission.  New regulations are anticipated.

    Other legislation that was considered in the last session of Congress and may be on the horizon as well includes the Employee Free Choice Act, the Respect Act, the Working Family Flexibility Act and the Paycheck Fairness Act.  The Employee Free Choice Act would streamline union certification by permitting non-union workers to vote to organize by simply marking a card rather than engaging in a secret ballot process.  EFCA would also radically change the collective bargaining process by providing for mandatory binding arbitration of first labor contracts following a very short negotiation period.  The Respect Act, or “Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers” Act, designed to overrule certain decisions of the NLRB that clarified the definition of a “supervisor,” could prevent a significant number of managers from being classified as supervisors under the NLRA.

   The Working Family Flexibility Act would ensure that workers have more flexibility to negotiate terms of their employment.  The Act would give employees the right to apply once a year for changes in work schedules, hours and location.  The Paycheck Fairness Act, which would amend the FLSA to provide additional remedies to those who suffer wage discrimination on the basis of gender, was introduced again in January 2009.

    Perhaps the most sweeping of all potential legislation, however, is the Civil Rights Act of 2008, which would amend the Civil Rights Act of 1964, the ADEA, the ADA, the FLSA and the Federal Arbitration Act, among other statutes.  Examples of changes should the Civil Rights Act of 2008 become law:  it would eliminate damage caps for Title VII and ADA violations; permit compensatory and punitive damages under the FLSA; requires ADEA disparate impact claims to be analyzed using the same framework as Title VII claims; and would permit the NLRB to award back pay to undocumented workers.  Mandatory pre-dispute arbitration clauses in employment contracts and handbooks would be outlawed.

    The Labor and Employment Committee of the Philadelphia Bar Association is tracking these issues, presenting programs on an on-going basis and will present a wrap-up on November 12, 2009, of the sweeping changes in labor/employment law that will likely occur during the first year of the Obama administration.

    Join us throughout the year for discussions of issues pertinent to all practices.  Our next meeting is scheduled for March 16, 2009.  The topic: “Amendments to the ADA.”  At our April 24, 2009 meeting, we’ll discuss “Structured Settlements in Employment Litigation.”  And on May 19, 2009, the Committee will host a joint meeting with the Employee Benefits Committee at the Bar Association, to present a program on ERISA issues.  

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