Tuesday, September 16, 2008

HR EYE ON THE ELECTION - The Rest of 2008

Few Prospects for Labor, Employment Bills Expected Prior to Elections

Little action is expected on any of the major labor and employment bills currently sitting in queue in Congress prior to the national elections in November . This will leave much of the pending legislation in limbo, to be dealt with by the next Congress and President.

However, congressional aides and lobbyists expect Congress to approve an E-Verify extension, the ADA Amendments Act, and the Mental Health Parity Act before adjourning for the year.

The House has a target adjournment date of Sept. 26, although many observers expect House action to spill over at least into the week of Sept. 29.

The Senate does not have a target adjournment date, but Senate leaders have indicated a desire to finish by the end of September.

Most major legislation, such as the Employee Free Choice Act and the Fair Pay Act, are not expected to see congressional action until after the national elections

Major legislation pending includes:

(H.R. 5129, S. 2554) These companion omnibus bills are intended to overturn or modify several U.S. Supreme Court decisions from the past two decades and, among other things, provide damages for age discrimination by state employers, curtail mandatory arbitration of statutory job bias claims, eliminate the damages cap that applies to Title VII and ADA claims under the Civil Rights Act of 1991, and modify employer defenses under the Equal Pay Act.


(Pub. L. No. 110-233) The Genetic Information Nondiscrimination Act amends the Employee Retirement Income Security Act and the Public Health Service Act to preclude discrimination by group health plans and health insurance issuers against individuals based on genetic information and to prohibit insurers from requiring genetic tests. The law prohibits employers from discharging, refusing to hire, or otherwise discriminating against employees on the basis of genetic information. It also would apply to employment agencies and labor unions. The law is intended to eliminate fear of discrimination among people who now decline to undergo potentially beneficial genetic tests.

(H.R. 2831/S. 1843) The Lilly Ledbetter Fair Pay Act (H.R. 2831) and the Fair Pay Restoration Act (S. 1843) would amend Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act to specify that the time limits for filing pay discrimination claims begin to run each time an employee receives a paycheck that manifests discrimination, not just when the employer makes a discriminatory pay decision. The bill is a direct response to the U.S. Supreme Court's 5-4 decision in May 2007 in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 100 FEP Cases 1025 (2007), that rejected the “paycheck rule” and held that the time limits for filing a discrimination charge with the Equal Employment Opportunity Commission starts to run when the employer makes a discriminatory decision about the employee's compensation.

(H.R. 3195, S. 3406) These are companion bills intended to restore the original congressional intent of the Americans with Disabilities Act to broadly prohibit discrimination based on disability by addressing four Supreme Court opinions that ADA proponents say have incorrectly restricted the act's coverage.