Pending Federal Employment Legislation Update: Employers Beware!
Congress has been busy so far this year introducing employment-related legislation that, if passed, will significantly affect employers throughout the country. As such, employers need to be aware of the variety of employment-related legislation currently before Congress. While the proposed legislation may be significantly altered through amendments or could lose the support of important proponents as political considerations arise, informed employers have the ability to effectively prepare for and respond to these potentially dramatic changes in the workplace.
This article provides a brief description of the pending legislation, as well as the significant changes called for under each piece of legislation. Developments with these bills may be tracked by utilizing the Library of Congress website, http://thomas.loc.gov/, and simply entering the corresponding bill number into the search engine, or, alternatively, by contacting Arnstein & Lehr LLP’s Labor & Employment Law Practice Group.
Click a link below to jump to the corresponding section:
The Federal Oversight, Reform, and Enforcement of the WARN Act (S. 1374, H.R. 3042)
The Patriot Employers Act (S. 829)
The Patriot Corporations of America Act (H.R. 1874)
Fair Pay Act of 2009 (S. 904, H.R. 2151)
Family Leave Insurance Act of 2009 (H.R. 1723)
Family and Medical Leave Inclusion Act (H.R. 2132)
Family and Medical Leave Restoration Act (H.R. 2161)
Equal Remedies Act of 2008 (S. 2554, H.R. 5129)
R.E.S.P.E.C.T. Act (S. 969, H.R. 1644)
Employee Free Choice Act (S. 1041, H.R. 800)
Independent Contractor Proper Classification Act (S. 2044)
Alert Laid Off Employees in a Reasonable Time (ALERT) Act (H.R. 2077)
English-Only Workplace Legislation (H.R. 1588)
Arbitration Fairness Act of 2009 (S. 931)
Protecting America’s Workers Act (H.R. 2067)
Excessive Pay Shareholder Approval Act (S. 1006)
Excessive Pay Capped Deduction Act of 2009 (S. 1007)
Michelle’s Law (H.R. 2851)
Healthy Families Act (S. 1152, H.R. 2460)
Working for Adequate Gains for Employment in Services Act (H.R. 2570)
The Paid Vacation Act of 2009 (H.R. 2564)
The Family and Medical Leave Enhancement Act (H.R. 824)
Employee Non-Discrimination Act of 2009 (H.R. 3017)
The Federal Oversight, Reform, and Enforcement of the WARN Act (S. 1374, H.R. 3042)
Introduced just recently into the House and Senate, the Federal Oversight, Reform, and Enforcement of the WARN Act (“FOREWARN Act”) would dramatically amend the Worker Adjustment and Retraining Notification Act (“WARN Act”). The FOREWARN Act was introduced in response to the significant rise in factory closings and mass layoffs currently being implemented in the United States.
Initially, the FOREWARN Act would require employers to give at least 90 days advance written notification, as opposed to current requirement of 60 days, of a covered plant closing or mass layoff. In addition to the currently required recipients of WARN Act notices, new notices would also need to be sent to the Secretary of Labor and the governor of the state where the plant closing or mass layoff will occur. Additionally, under the FOREWARN Act, employers with at least 75 full or part-time employees (down from 100 full-time employees) would be covered under the WARN Act. Further, a covered “plant closing” would be one affecting at least 25 full or part-time employees (down from 50 full-time employees) and a covered “mass layoff” would be one that affects at least 25 employees (down from 33% of full-time employees amounting to at least 50 workers, or 500 workers). A “mass layoff” would also no longer have to involve a single site of employment.
Among other significant changes, the FOREWARN Act would also modify the required contents of a WARN Act notice, obligate covered employers to post a WARN Act poster and increase the potential damages to an aggrieved employee to double back pay for each day the employer was required to provide notice, along with interest. Finally, the FOREWARN Act would also prohibit an employee from waiving, deferring or losing any rights under the WARN Act without the approval of the Secretary of Labor or the attorney general of the relevant state or unless a private attorney on behalf of the affected employee negotiates the waiver/agreement.
The FOREWARN Act has been referred to the Senate Health, Education, Labor and Pension Committee and the House Committee on Education and Labor.
The Patriot Employers Act (S. 829)
In April 2009, the “Patriot Employers Act” was introduced to reward companies that invest in American jobs, pay decent wages, provide good benefits, and support their employees when they are called to active duty. On its face, it appears to offer American corporations a tax reduction in exchange for increasing employee benefits and reducing outsourcing, but there are some disadvantages.
Among the advantages, companies would be designated as “patriot employers” and receive a 1% tax credit on all corporate profits if they: (1) maintain their headquarters in the United States; (2) pay at least 60% of the health care premiums of their employees; (3) observe a policy requiring neutrality in employee organizing drives; (4) maintain or increase the number of their full-time workers in the United States relative to their full-time workers outside of the United States; (5) provide full differential salary and insurance benefits for all National Guard and Reserve employees called to active duty; and (6) provide their employees with a certain level of compensation and retirement benefits.
Among other potential disadvantages, employers who agree to the Act’s conditions will be giving up their rights under the National Labor Relations Act to inform employees about unions and their potential drawbacks. In reality, companies who become “patriot employers” will make it much easier for unions to organize their work forces. As well, employers will face increased upfront costs related to the employee benefit provisions of the bill.
Currently, the Patriot Employers Act is in Senate Committee on Finance with no further action reported. A substantially similar bill, the “Eagle Employers Act,” is currently in committee in the House (H.R. 989).
The Patriot Corporations of America Act (H.R. 1874)
Similar to the Patriot Employers Act, the Patriot Corporations of America Act (“PCAA”) was introduced in April 2009, and is packaged as a tax reduction for American corporations in exchange for conditions that increase employee benefits and reduce the outsourcing of labor. A corporation that is deemed to be a “patriot corporation” will receive a 5% reduction of their taxable income and also receive preference in obtaining federal contracting bids. However, similar to the Patriot Employers Act, a corporation must give up a lot to be designated as a “patriot corporation” under the PCAA. Specifically, a corporation must: (1) produce at least 90% of its goods and services in the United States; (2) not pay its management-level employees at a rate more than 10,000% of the compensation of its lowest paid employee; (3) conduct at least 50% of its research and development in the United States; (4) contribute at least 5% of its payroll to a portable pension fund for its employees; (5) pay at least 70% of its employees’ health insurance costs; (6) maintain a policy of neutrality in union organizing drives; (7) provide full differential salary and insurance benefits for all National Guard and Reserve employees who are called to active duty; and (8) not violate federal regulations at any time during the taxable year, including regulations relating to the environment, workplace safety, labor relations, and consumer protections.
The PCAA has been referred to the House Committees on Ways and Means and Oversight and Government Reform.
Fair Pay Act of 2009 (S. 904, H.R. 2151)
Introduced in April 2009, the Fair Pay Act of 2009 (“FPA”) essentially would amend the Equal Pay Act provisions of the Fair Labor Standards Act (“FLSA”) to prohibit employers from paying lower wages for jobs dominated by women and minorities than paid for equivalent jobs dominated by men. “Equivalent jobs” are defined as “jobs that may be dissimilar, but whose requirements are equivalent, when viewed as a composite of skills, effort, responsibility, and working conditions.” The Fair Pay Act raises again the concept of “comparable worth” that was so controversial in the 1980’s.
The FPA would also prohibit discrimination against any employee that discusses his or her wages with another employee and allow for the recovery of compensatory and punitive damages. Finally, the FPA would require employers to provide certain information to the Equal Employment Opportunity Commission, such as wage rates of its employees broken down by, among other things, position and classification.
The FPA has been referred to the Senate Committee on Health, Education, Labor and Pensions. A similar bill has been introduced in the House of Representatives and is currently in House Committee on Education and Labor.
Family Leave Insurance Act of 2009 (H.R. 1723)
Introduced in March 2009, the Family Leave Insurance Act (“FLIA”) would essentially create a new federal insurance fund to provide employees with up to twelve weeks of paid family and medical leave each year. The FLIA would supplement the existing Family and Medical Leave Act, which requires only unpaid leave.
As currently drafted, the FLIA would provide up to 12 weeks of annual paid leave for workers who need time off to care for a family member with a serious health condition, a newborn child, to tend to their own serious health condition, or as a result of an emergency arising out of a military deployment. Larger employers (with 20 or more employees) and employees would each pay premiums into the fund equivalent to 0.2 percent of each worker’s earnings. Those employers with fewer than 20 workers would pay a 0.1 percent premium, and would then have the option of participating in the fund. In order to qualify for the paid benefit, the employee would need to pay into the fund for six consecutive months and accumulate at least 625 work hours during that six-month period.
Benefits under the FLIA are also tiered, with 100% weekly earnings going to those employees making $20,000 or less, 75% weekly earnings for those employees making $30,000 or less, 55% weekly earnings for employees making $60,000 or less, 45% weekly earnings for employees making $97,000 or less, 40% weekly earnings for employees making over $97,000. States with materially equivalent or better paid leave programs may opt out, and companies with materially equivalent or better benefits can opt out and self-insure.
The FLIA has been referred to the House Committees on Education and Labor, Oversight and Government Reform, and Ways and Means. Therefore, it may be quite some time before this proposed legislation makes it to the House floor. However, considering that this bill would increase the costs incurred by all companies, employers should track this legislation and voice any opposition that they may have to it to their representatives.
Family and Medical Leave Inclusion Act (H.R. 2132)
The Family and Medical Leave Inclusion Act would expand the Family and Medical Leave Act of 1993 (“FMLA”) to permit an eligible employee to take up to 12 weeks of unpaid leave from work to care for a domestic partner, child of a domestic partner, same-sex spouse, parent-in-law, adult child, sibling, or grandparent if that person has an FMLA qualifying “serious health condition.”
While some states, as well as the District of Columbia, include unmarried partners in state family and medical leave laws, this is the first legislation at the federal level that would provide such benefits. Of course, if passed, the Family and Medical Leave Inclusion Act would greatly expand the number of potentially eligible employees entitled to FMLA benefits.
Currently, the Family and Medical Leave Inclusion Act has been referred to the House Administration Committee, the House Education and Labor Committee, and the House Oversight and Government Reform Committee.
Family and Medical Leave Restoration Act (H.R. 2161)
The Family and Medical Leave Restoration Act (“FMLRA”) was introduced in April 2009 and would repeal many of the FMLA regulations that went into effect in January 2009. Among other changes, the FMLRA would: (1) restrict the timing of an employer’s ability to require recertification of a medical condition; (2) restrict an employer from forcing an employee to use more incremental FMLA leave than is medically necessary; (3) allow employees to accrue paid leave while on FMLA; (4) restore the prohibition on denying attendance bonuses as a consequence for taking FMLA leave; (5) prohibit employers from directly contacting an employee’s medical provider; (6) restore the requirement that the Department of Labor or court approve any waiver of an employee’s FMLA rights; and (7) remove the requirements for a specific number of visits for treatment by a health care provider in order to qualify for leave as a “serious health condition” or a chronic condition. The legislation also includes a provision that would require the Department of Labor to revise medical certification form templates to permit healthcare providers to make the determination of whether a medical condition qualifies as a “serious health condition” under the FMLA.
Essentially, the FMLRA would reverse all of the recently-amended FMLA regulations that favor employers. Currently, the bill has been referred to the House Committees on House Administration, Education and Labor and Oversight and Government Reform.
Equal Remedies Act of 2008 (S. 2554, H.R. 5129)
Introduced in January 2008, as part of the Civil Rights Act of 2008, the Equal Remedies Act would, among other things, eliminate the caps on the amount of damages available in employment discrimination cases brought under Title VII. Currently, compensatory and punitive damages are capped based on the size of the employer, ranging from $50,000 for employers who employ between 14-101 workers up to $300,000 for employers who employ 500+ workers. This proposed legislation would entirely remove the statutory caps and, as a result, greatly increase an employer’s potential liability in discrimination cases.
The Equal Remedies Act would also modify the definition of “prevailing party” to allow more employee-plaintiffs to recover attorney’s fees in employment cases where their pursuit of a non-frivolous claim or defense was a catalyst for a voluntary or unilateral change in position by the employer and provided any significant part of the relief sought. The bill will also make it easier for prevailing employees to recover expenses such as expert witness fees in non-Title VII cases.
Finally, the Equal Remedies Act would also amend the Federal Arbitration Act to prohibit clauses requiring the arbitration of federal constitutional or statutory claims unless the employee knowingly and voluntarily consents to the clause after a dispute has arisen or is part of a collective bargaining agreement.
The Equal Remedies Act has not yet been reintroduced in this session of Congress but given that its primary sponsors are still in Congress, it is likely that the bill will be reintroduced in the near future in both the House and Senate.
R.E.S.P.E.C.T. Act (S. 969, H.R. 1644)
In response to National Labor Relations Board (“NLRB”) rulings which arguably broadened the National Labor Relations Act’s (“NLRA”) definition of “supervisor,” members of the House and Senate proposed the R.E.S.P.E.C.T. Act (Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers). This proposed legislation, which was introduced in the last session of Congress, would amend the NLRA’s definition of “supervisor,” resulting in a narrower scope of employees who would qualify as supervisors and be excluded from the scope of a collective bargaining agreement. Under the language of the R.E.S.P.E.C.T. Act, in order to qualify as a supervisor, employees must devote a “majority of [their] worktime” to management tasks over other employees. This differs from the current NLRB stance which only requires 10% of employee time be devoted to management tasks. Removed from the list of activities an employee must engage in to be considered a supervisor is the authority to “assign” others and “responsibly to direct them.” Effectively, this legislation would extend the protections of the NLRA to many supervisors who are currently considered management personnel and align them with the rank and file, rather than the management.
The R.E.S.P.E.C.T. Act has not yet been reintroduced during this session of Congress but, given that it had a significant amount of support in the last session, a similar bill will likely be introduced in the near future.
Employee Free Choice Act (S. 1041, H.R. 800)
The Employee Free Choice Act (“EFCA”) has garnered the most attention of all the recently-introduced employment legislation. While EFCA passed easily in the House, it now appears that, as currently drafted, EFCA is not going to have the support needed to pass in the Senate.
In the version currently before Congress, this bill would amend the NLRA in a number of ways. First, the NLRB would be required to certify and recognize a union based simply on the majority of employees signing card authorizations. This eliminates the step of holding a secret ballot after a petition to unionize has been submitted to the NLRB. Second, if the parties fail to reach agreement in the first contract negotiations within 90 days, either party may refer the matter to the Federal Mediation and Conciliation Service (“FMCS”). If the FMCS is unable to bring the parties to agreement within 30 days, the matter would be referred to binding arbitration. The results of this arbitration would be binding upon the parties for two years, absent written agreements to modify. Finally, the civil penalties and remedies for violating the NLRA would be greatly increased. The NLRB would be required to seek injunctions against employers suspected of interfering with, terminating, discriminating or retaliating against employees seeking to unionize. Also, remedies would be increased to include back pay and two times the amount of back pay in the form of liquidated damages. Fines of $20,000 per violation would be added for willful violations of the employees’ rights during the organization drive.
Despite the likelihood that EFCA will not pass the Senate in its current form, legislators are working behind the scenes on a compromise or “watered down” version of EFCA. For example, there have been discussions to extend the negotiation period for a first collective bargaining agreement. And, given that President Obama is an original signatory to the bill, some version of EFCA may pass in the very near future.
Independent Contractor Proper Classification Act (S. 2044)
This bill, which was presented in the last session of Congress, was aimed at clarifying the standards used to classify workers as employees or independent contractors. While it has not yet been reintroduced in this session of Congress, if proposed and enacted, it will restrict employers’ ability to classify workers as independent contractors by closing loopholes in the Revenue Act of 1978. Significantly, this bill would grant workers the right to petition the Secretary of the Treasury for a determination of their status as employees or independent contractors. Employers would be prohibited from retaliating against an employee for filing such a petition. If the petition results in a finding of status misclassification, the Secretary would then notify the Department of Labor which could audit and seek penalties against employers who misclassify employees as independent contractors. The bill calls for increased cooperation between the Secretary of Treasury and the Department of Labor in the investigation and tracking of misclassification cases. Finally, employers would be required to inform employees of their rights to seek a determination, their tax obligations, the federal protections unavailable to independent contractors, and to retain information on each worker classified as an independent contractor. If passed, this bill could have a serious impact on employers who rely upon independent contractors, as the expanded workers rights would lead to increased financial and legal liabilities for employers.
Since then-Senator Obama was an original sponsor of the bill (with 6 other co-sponsors), it is likely that the exact same or a similar bill will be presented in Congress during the current session.
Alert Laid Off Employees in a Reasonable Time (ALERT) Act (H.R. 2077)
The ALERT Act, which was introduced in April 2009, is meant to amend the Worker Adjustment and Retraining Notification (WARN) Act. The WARN Act currently requires employers with 100 or more employees to provide at least 60 days notice prior to a plant closing or “mass layoff” at a single site of employment. The ALERT Act would modify the WARN Act in two significant ways. First, it would expand the definition of a “mass layoff” to include an employment loss at more than one of the employer’s worksites during any 30-day period. A “mass layoff” under the ALERT Act would also include the layoff of at least 33% of the employees of the employer (excluding part-time employees) and at least 50 employees or at least 500 employees (excluding part-time employees). Second, it would increase the penalty for WARN Act violations (e.g., not providing the requisite notice prior to the plant closing or mass layoff) to double back pay for each day of violation.
The ALERT Act has been referred to the House Committee on Education and Labor.
English-Only Workplace Legislation (H.R. 1588)
The EEOC continues to pursue lawsuits on behalf of employees who allegedly have been discriminated against in the workplace based upon their use of a language other than English. While the number of “English-only” lawsuits annually filed by the EEOC is relatively small, liabilities and penalties can be substantial. Recent settlement agreements have included fines in the millions of dollars, consent decrees prohibiting employers from instituting any English-only policies, and compulsory implementation of monitoring and training programs.
In response to these lawsuits, a bill has been introduced in Congress aimed at limiting the EEOC’s recent “English-only” litigation. Entitled “The Common Sense English Act,” this bill would amend Title VII to state “it shall not be an unlawful employment practice for an employer to require employees to speak English while engaged in work.” As businesses’ reliance upon immigrant workers continues to rise, this legislation could significantly impact policies toward multi-lingual employees.
The current version of this bill remains in the House Committee on Education and Labor.
Arbitration Fairness Act of 2009 (S. 931)
The Arbitration Fairness Act was introduced into the Senate in April 2009. The bill would make invalid and unenforceable any pre-dispute arbitration agreements that require an employee to arbitrate an employment, consumer, franchise or civil rights dispute. Similar to the Equal Remedies Act, the legislation would not apply to arbitration provisions contained in collective bargaining agreements. If passed, this bill could have a significant impact on non-union companies that utilize arbitration agreements to resolve employment-related disputes.
The Arbitration Fairness Act of 2009 has been referred to the Senate Committee on the Judiciary.
Protecting America’s Workers Act (H.R. 2067)
The Protecting America’s Workers Act (“PAWA”) was introduced in April 2009 and is meant to amend the Occupational Safety and Health Act (“OSHA”). Among other modifications, the PAWA would greatly expand the OSHA to cover governmental workers and those workers in the railroad and airline industries, all of whom have traditionally been covered by other federal laws. More importantly, however, the PAWA proposes to extend criminal liability to “any responsible corporate officer” by including that officer under the definition of “employer.” If passed, the PAWA would also give regulators the opportunity to levy fines of up to $250,000 upon an individual or $500,000 for an organization who willfully violates the OSHA in a manner that results in an employee’s death or serious injury. These same penalties would be available for regulators to charge against employers who make false statements or reports to OSHA. This is a substantial increase from the current $10,000 criminal fine currently available to regulators.
The PAWA also proposes to increase the applicable prison time for those who commit certain OSHA violations by increasing those violations from misdemeanors to felonies. For example, an individual who commits a willful violation that results in a death currently under OSHA would be subject to a potential prison term of 6 months for a first time offender and up to 1 year for repeat offender. The PAWA would increase the potential sentence to a 10 year sentence for a first time offender and up to 20 years for a repeat offender.
The PAWA has been referred to the House Committee on Education and Labor. It is expected that Edward Kennedy will introduce a similar bill to the Senate in the near future.
Excessive Pay Shareholder Approval Act (S. 1006)
Introduced in May 2009, the Excessive Pay Shareholder Approval Act would require a supermajority shareholder vote to approve excessive compensation of any employee of a publically traded company. Specifically, the legislation amends the Securities and Exchange Act of 1934 to require a supermajority — 60% — vote of the shareholders to approve a compensation package in which any employee receives more than 100 times the average of the pay of all company employees. The bill would also require proxy materials for a shareholder vote on an executive’s compensation to contain certain disclosures, such as the pay of the highest-paid employee and the average pay for all employees of the company.
This bill has been referred to the Senate Committee on Banking, Housing and Urban Affairs.
Excessive Pay Capped Deduction Act of 2009 (S. 1007)
This legislation, which was also introduced in May 2009, would effectively prohibit publicly traded employers from deducting any pay considered to be excessive compensation. Like the Excessive Pay Shareholder Approval Act, “excessive compensation” is defined as compensation that is more than 100 times the average pay for all employees in the company. In other words, a publicly traded company would lose its income tax deduction for any employee compensation that is defined as excessive. For example, if the average pay of the employees at the company is $30,000 for a taxable year, the company cannot deduct pay for any employee who is paid more than $3 million.
This legislation would also require each publicly traded employer that provides excessive compensation to any employee to report to the Treasury Secretary: (1) the pay of the lowest-paid employee; (2) the pay of the highest-paid employee; and (3) the average pay for all employees. Finally, the bill would require the publicly traded employer to report the number of employees who received excessive compensation and the amount of compensation those employees received.
This bill has been referred to the Senate Committee on Banking, Housing and Urban Affairs.
Passed in late 2008 during the previous session of Congress (Public Law 110-381), Michelle’s Law becomes effective on October 9, 2009. Michelle’s Law was passed to protect the health insurance coverage of students under the age of 22 who must take medical leave from their college and are covered by their parents’ insurance. Specifically, the law prohibits group health insurers from terminating coverage of a dependent student during the student’s medical leave of absence (or other medically necessary reductions in the student’s enrollment).
The law obligates the health plan to permit students at a postsecondary education institution who lose “full time” status to continue health coverage until the earlier of (1) one year after the first date the medically necessary leave of absence, or (2) the date that the student’s coverage would have otherwise ended. In order for a student to continue coverage during a medical leave, the insurer must receive written notice from the student’s physician of a medical condition that warrants a leave of absence. Upon notification, the insurer must provide to the student a clear description of the terms of continued coverage. Finally, Michelle’s Law requires health plans to continue coverage on the same terms as coverage is provided for other dependent children.
Since many employers offer health insurance coverage, they should be aware of this law and, at a minimum, modify their summary plan descriptions to provide for this coverage. As well, because Michelle’s Law is effective for health insurance plans beginning on or after October 9, 2009, employee health plans operating on a calendar year must be modified no later than January 1, 2010, to reflect this new law.
Healthy Families Act (S. 1152, H.R. 2460)
Introduced in May 2009 into both the House and Senate, the Healthy Families Act (“HFA”) would obligate employers who have at least 15 employees working 20 or more calendar weeks in the current or preceding year to provide up to seven days of paid sick leave for full-time employees (those working more than 30 hours a week). Part-time employees working less than 30 hours a week, but more than 20 hours a week, would obtain a prorated share of the paid sick leave. Time off under the HFA can be used to treat an employee’s own medical needs or the medical needs of a family member.
The HFA has been referred to the House Committees on Education and Labor, Oversight and Government Reform and Administration and the Senate Committee on Health, Education, Labor and Pensions.
Working for Adequate Gains for Employment in Services Act (H.R. 2570)
The Working for Adequate Gains for Employment in Services Act (“WAGES Act”) was recently introduced in the U.S. House of Representatives. If passed, it would amend the Fair Labor Standards Act to gradually increase the minimum wage for tipped employees. The sponsors of the bill claim the WAGES Act is necessary since the minimum wage for tipped employees, such as waiters and waitresses, has remained unchanged for 18 years.
Specifically, the WAGES Act would increase the minimum cash wage for tipped employees to $3.75 an hour beginning 90 days after the Act’s enactment, to $5.00 an hour beginning July 1, 2011, and to $5.50 an hour or 70 percent of the minimum wage for non-tipped employees (whichever is greater) beginning July 1, 2012.
The WAGES Act has been referred to the House Committee on Education and Labor.
The Paid Vacation Act of 2009 (H.R. 2564)
Introduced in May 2009, the Paid Vacation Act of 2009 (“PVA”) would also amend the Fair Labor Standards Act to require employers with 100 or more employees to provide one week paid vacation every year. Three years after the passage of the PVA, employers with 100 or more employees would be required to provide two weeks of paid vacation every year. Further, employers with between 50 and 100 employees would be required to provide 1 week of paid vacation within three years of the passage of the PVA.
In order to be an eligible employee for paid vacation leave, an employee would need to have been employed for at least 12 months for the employer and have worked at least 1,250 hours during those 12 months. Employees would also be obligated to give at least 30 days’ advance noticed before taking paid vacation leave. Finally, paid vacation leave under the PVA could not be rolled over into the following year and the vacation would be in addition to any other leave benefits required by state or federal law.
The PVA has been referred to the House Committee on Education and Labor.
The Family and Medical Leave Enhancement Act (H.R. 824)
The Family and Medical Leave Enhancement Act (the “Enhancement Act”) was introduced into the House in May 2009. If passed, the Enhancement Act would amend the Family and Medical Leave Act to allow employees up to four hours during a 30-day period (and up to 24 hours in a year) to attend a child or grandchild’s educational or extracurricular activities. Additionally, time off under the Enhancement Act could be taken to attend to routine family medical care needs that are not otherwise covered by the Family and Medical Leave Act. The Enhancement Act would cover employers with between 25 and 50 employees.
A similar bill has been presented in previous sessions of Congress and has never made it out of Committee. Currently, this bill has been referred to the House Committees on Education and Labor, Oversight and Government Reform and Administration.
Employee Non-Discrimination Act of 2009 (H.R. 3017)
Introduced on June 19, 2009, the Employee Non-Discrimination Act of 2009 (“ENDA”) would prohibit employment discrimination on the basis of sexual orientation or gender identity. A modified bill was passed in the House during the last session of Congress but failed to pass in the Senate.
While some states, including Illinois, have already passed laws to prevent such discrimination, 30 states do not have laws regarding discrimination on the basis of sexual orientation, and 38 states do not have laws regarding discrimination on the basis of gender identity. As well, federal employees have already been granted such rights through executive orders.
The ENDA has been referred to the House Committees on Education and Labor, House Administration, Oversight and Government Reform, and the Judiciary.
Conclusion
Congress has certainly been busy this year. The pending legislation described above could have a profound impact on employers throughout Illinois and elsewhere. We will provide additional notices and information when there are any major developments with these Acts. In the meantime, if you have any questions regarding the potential consequences of the Acts, or any other employment-related questions, please contact your Arnstein & Lehr LLP employment law attorney.
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