History has shown that new employment laws and regulations typically follow periods of societal change or economic turbulence. Right now we’re experiencing both: between the new presidential administration and the economic recession, we can count on a flood of employment laws on the horizon.

In the 1960s, the civil rights movement spawned a number of new employment laws aimed at formalizing the massive societal changes brought forth during this era. Again in the 1970s, women entered the workforce in increasing numbers and brought with them legislation responding to equal pay issues, pregnancy discrimination and harassment issues. The downturn and resulting upheaval of the late 1980s and early 1990s saw a new wave of employment laws and regulations that evolved to reflect new social values and protect employees from the fall-out of a failing economy.

Twenty years later, we’re in a similar situation. With two working-parent households, increased awareness and appreciation for minority populations (such as gays and lesbians and disabled individuals), and the shift toward the knowledge-based economy, our society has seen a tremendous evolution from the homogenous and industrial workforce of the 1980s.

Meanwhile, employees are experiencing the harsh effects of an economic crisis – a crisis not of their making, beyond their control, and for which they’re suffering disproportionate consequences considering their numbers on the layoff lists when compared with those in senior management.

These issues, combined with a democratic administration and majority in the legislature, are sufficient catalysts to generate a flurry of new employment laws as soon as the economy stabilizes, probably later this year.

When this happens, several significant pieces of pending legislation will move to the forefront, including following proposed bills:

The Paycheck Fairness Act would shift the burden onto employers to establish a "business necessity" and "job-related" reason for any number of legitimate pay differential factors, such as education, experience, location, level of training, or prior salary history. Currently, the burden is on the employee to prove the pay discrimination claim. The proposed law would not only require employers to prove that their pay decision is not discriminatory, but also permit employees to identify alternative business practices that would nullify pay disparities as a means of challenging pay practices. Trial lawyers lobbied extensively for the Paycheck Fairness Act, and certainly if passed, the law would help most pay-related claims get to trial rather than dismissed at an early stage.

The Working Families Flexibility Act reflects the change in households where many now have two working parents. This Act would allow employees to negotiate with the manager (1) the number of hours worked per week; (2) when they are worked; and (3) where they are worked (presumably at home or in the office) through an imposed interactive process similar to the ADA. However, many managers and employers still struggle to understand ADA and FMLA requirements, and this would add yet another administrative layer for employers.

The FMLA Expansion would augment the existing Family Medical Leave Act to apply to employers with 25 employees or more (instead of the current 50) and allow employees to take up to 12 weeks of unpaid leave per year to respond to family or medical issues. Again, reflecting the change in households and in deference to employees who must care for children and parents, the proposed bill would also allow employees to take up to 24 unpaid hours per year to attend children’s school activities.

The Employee Free Choice Act would pave the way for the expansion of unions among knowledge workers. Pushed hard by labor unions as a way to increase duespaying members, this bill has three main components: (1) a public card check instead of private elections that would automatically unionize a workforce if 51% of the cards request it; (2) a mandatory arbitration in lieu of collective bargaining whereby a federal arbitrator would be appointed to make the labor decisions when the union and management cannot agree on terms; and (3) new penalties for employers who violate the rules.

In addition to the stack of possible new laws, there is also a strong likelihood of new regulations and enforcement procedures considering that Secretary of Labor Hilda Solis is the daughter of two union workers and a life-long advocate of union and employee rights.


Janine Yancey, President
emTRAiN
www.emtrain.com