Changing times

Employers currently find themselves in a challenging environment both economically and politically. The economic downturn has affected employers in all industries, forcing many to make difficult decisions to cut benefits and lay off employees. In addition to the economic crisis, employers are now faced with a different political climate. The lay of the land changed dramatically with the 2008 elections: the United States is now ruled by a Democratic White House and Congress. President Obama has announced a new labor and employment law agenda, some of which has already been passed into law and there will undoubtedly be significant changes on the horizon for employers. Much of the proposed legislation is intended to extend or broaden existing laws for the benefit of employees. With that in mind, employers need to be aware of recent changes to the law, as well as proposed legislation and regulatory changes that could significantly impact employers.

There were two important employment laws passed during the first 60 days of President Obama's administration both of which provide significant benefits to employees:

* Ledbetter Fair Pay Act: Signed into law in January, the Ledbetter Fair Pay Act significantly expands the deadline for an employee to bring a wage discrimination claim. The claimant must file a claim within 180 days of an occurrence of an unlawful employment practice, which now includes the issuance of each paycheck.

* American Recovery and Reinvestment Act of 2009: Under the act, signed into law by President Obama on Feb. 17, the federal government will now temporarily subsidize up to 65 percent of COBRA premiums for an eligible employee or qualified beneficiary who loses coverage under a group health plan as a result of an involuntary termination during the period from Sept. 1, 2008 through Dec. 31, 2009.

In addition to the above changes to the law that have already taken effect, employers need to be aware of and understand legislation that may be coming. Following is proposed labor and employment legislation that could have a significant impact on employers:

* Employee Free Choice Act: Would dramatically change the National Labor Relations Act by: (1) allowing for card check authorization in lieu of secret ballot elections if a majority of employees sign union authorization cards; (2) limiting the time for negotiating a collective bargaining agreement; (3) requiring mandatory mediation and binding arbitration with respect to the collective bargaining agreement; and (3) increasing penalties against employers who violate the NLRA.

* Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers Act: Would change the NLRA to: (1) significantly limit the number of employees that an employer can classify as a "supervisor"; (2) allow unionization of the employees newly classified as non-supervisory; and (3) provide a large new pool of potential union members.

* Patriot Employers Act: Would offer a tax credit for employers who: (1) maintain or increase their workforce in the United States; (2) maintain their corporate headquarters in the United States; (3) provide their employees with health care and retirement benefits; (4) adopt a neutral stance towards union activity; and (5) provide pay and benefits to employees on active duty in the military.

* Family and Medical Leave Expansion Act: Would expand the coverage of the FMLA to: (1) provide

incentives for states to adopt paid leave laws; (2) involve smaller employers than currently covered; (3) provide a leave category for addressing domestic violence issues; and (4) provide 24 hours of leave per year for parents to participate in academic activities of a child.

* The Family Leave Insurance Act of 2007: Would enhance the current coverage of the FMLA to: (1) provide paid leave to employees; (2) apply to employers with two or more employees (including part-time); and (3) make employees eligible for paid leave after six months.

* Healthy Families Act: Would require employers with 15 or more employees to provide paid sick leave that could be carried over from year to year.

* Working Families Flexibility Act: Would require employers to engage in the interactive process with an employee who requests flexible work options and would require an explanation if the employer denies the request. The act would also allow employee to file a complaint with the Department of Labor, penalties imposed against employer, and federal court review.

* FOREWARN Act: Would change the WARN Act to: (1) cover smaller employers; (2) decrease the number of employees laid off to trigger the notice requirements; (3) provide for a longer notice period; and (4) double penalties against an employer for violation.

From the two employment laws that have already been passed, as well as the labor and employment legislation agenda revealed by the new administration, it is clear that employee rights and benefits are front and center. The new agenda seeks to expand existing benefits for employees and to create additional protections. Employers need to be aware of the recent changes in the law to ensure compliance and understand proposed legislation to prepare for the changes that are coming.

Bonnie Drinkwater is an attorney in Reno, working in the Drinkwater Law Offices. She will conduct the legal session at the Business Survival Workshop at the UNR Extended Studies Center May 30.


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