HR Roundtable panel member Bill Pinto discusses workplace-related legislation currently being addressed by Congress:
It may come as a surprise that Congress is not devoting all of its energies to finding solutions to the various health care issues. However, the members are addressing other matters, including several pieces of legislation that could impact the workplace.
Just this week, bills in the House and Senate were introduced to amend the Age Discrimination in Employment Act and overturn a Supreme Court decision from last term. In Gross v. FBL Financial Services, the Court held that it was not sufficient for the employee to show that his age was a “motivating factor” for his demotion. To prove his claim, the Court ruled that the employee must establish that his age was the determining cause of the employment decision. The pending legislation establishes the “motivating factor” standard as one of the ways in which an employee may demonstrate age discrimination. It remains to be seen if the proposed amendment will simply codify that standard or attempt to broaden protections for employees who are age 40 and older.
The Family and Medical Leave Enhancement Act includes a couple of provisions that would amend the FMLA and expand the pool of employers subject to that particular federal law. The FMLA provides 12 weeks of unpaid leave in a 12-month period to eligible employees to care for the birth or adoption of a child, to take medical leave for a serious health condition, or to care for certain family members with such a condition, as well as leave in certain situations involving military service. Currently, the FMLA only applies to employers with at least 50 employees. The proposed amendment would lower that threshold to 25 or more employees. The legislation under consideration also would allow employees to take up to 4 hours in any 30-day period (and up to 24 hours in any 12-month period) to attend school or extracurricular activities of their children or grandchildren or for routine family medical care needs.
Congress is also considering another amendment to the FMLA that would require employers to provide up to 12 weeks of paid leave to employees who need to care for a newborn, newly adopted child or certain family members with a serious health condition, to treat their own serious health condition or to deal with the deployment of a member of the military. The Family Leave Insurance Act also would expand coverage to care for domestic partners or the children of domestic partners. If the mandated 12 weeks of paid leave passes and is signed into law, the costs to employers, especially small businesses, likely would be significant.
The Employment Non-Discrimination Act has resurfaced in Congress. The latest version of the bill not only prohibits discrimination based on an employee’s sexual orientation but also his or her gender identity. A similar version of this bill was introduced in the last session of Congress, and the House approved the bill after the gender identity language was removed. Republicans in the Senate thwarted the bill’s passage in 2007. The return of the gender identity language in the newest version is likely due to the fact that the Senate Democrats are edging closer to the 60-member majority needed to overcome a Republican filibuster. Like Title VII, the proposed law would apply to employers with 15 or more employees, but it would exempt religious organizations and the military.
There are a number of other bills being considered by Congress that we simply do not have room here to discuss. Because these proposed acts would affect the workplace if signed into law, it is important for HR managers to familiarize themselves with their coverage.
How would the passage of any of these laws impact the day-to-day for HR managers? How do these proposed laws go too far or fall short? What law, if any, do you think Congress should consider for the workplace and why?