Pending Bills and Regulations for the Workplace – What’s Possible?

While the media focuses on the economic doldrums and the stimulus efforts, Congress and the Obama Administration have proposed more legal changes to the workplace than at any time since the New Deal.  The ongoing debate over a “planned economy” tends to overshadow an equally viable transfer of workplace power to the federal government.  Many of the proposed workplace laws expand worker rights and private enforcement remedies; almost all of the federal workplace initiatives enlarge the workplace police powers of the federal government. This article lists pending federal workplace initiatives and identifies those with a real chance of passage.

2009 Legislation/Regulations Already Implemented

Many forget the number of workplace initiatives already enacted or implemented in 2009.  So far, new workplace laws and regulations include:

• Americans with Disabilities Act Amendments – January 1, 2009 amendments to the Americans with Disabilities Act significantly broaden the meaning of “disability”;
• COBRA Subsidy – Part of the February 17, 2009 American Recovery and Reinvestment Act of 2009 (“ARRA”) allows qualified individuals to receive for up to 9 months a 65 percent government subsidy of COBRA premiums. Employers must offer and pay for the subsidy to otherwise eligible employees involuntarily terminated between September 1, 2008, and December 31, 2009. Employers may recover the subsidies through reductions in tax withholding paid to the federal government;
• Lilly Ledbetter Fair Pay Act – Effective January 29, 2009, the FPA introduces a new term, “discrimination in compensation” and declares that every payment of compensation should be treated as a distinct act entitling a covered employee to a new statute of limitations within which to file a claim for discrimination in compensation;
• FMLA Regulatory Revisions – Effective January 16, 2009, the DOL’s regulatory overhaul of the FMLA clarifies and mandates many leave rights available for eligible employees working in companies with 50 or more employees.
• Davis-Bacon Wage Rate Requirements under ARRA – Section 1606 of the ARRA requires federal contractors and subcontractors to pay to all laborers and mechanics the Davis-Bacon “prevailing wage” rates.  The Davis-Bacon Act defines a system for determining the locally prevailing wages and fringe benefits.  Under Davis-Bacon, federal contracts involving construction, alteration, maintenance or repair exceeding $2,000 requires payment of prevailing wages and fringe benefits.
• Enhanced Whistleblower Protections under ARRA – The ARRA provides new whistleblowing rights to employees of all contractors and subcontractors receiving stimulus funds.  Protected conduct extends to a complaint of any employee who reasonably believes that the use of stimulus funds involves gross mismanagement, a gross waste of the funds, a substantial and specific danger to public health or safety, an abuse of authority, or a violation of law, rule, or regulation. Protected complaints may be made to a long list of governmental entities (an inspector general (“IG”), a member of Congress, a court, grand jury and others) or to the employee’s supervisor or employer’s internal compliance personnel.  An employer may not fire, demote or otherwise discriminate against an employee “disclosing covered information.”  Complaints of retaliation are filed with the IG of the agency that awarded the contract, and must be dismissed or fully investigated within 180 days.  Under certain circumstances, an employee may file a separate de novo action in US District Court.  The employer, employee or any other person affected by an agency’s decision may appeal to a federal appellate court. Covered employers must post notices covering the whistleblower rights, procedures, and remedies
• Executive Compensation related to Stimulus Funds – On June 10, 2009, the Treasury Department issued new “Guidance” on enhanced executive compensation relating to stimulus funds received under Troubled Asset Relief Program (“TARP”) pursuant to the Emergency Economic Stabilization Act of 2008 (“EESA”), and subsequently modified by ARRA.   As part of the regulatory framework for executive compensation, the Treasury Guidance established the Office of the Special Master for TARP Executive Compensation, aka “Pay Czar.”

Administration’s FY10 Workplace Agency Budget

The Administration’s proposed budget for FY10 includes a major increase for strategic DOL agencies. The DOL’s $104.5 billion budget would enable the agency to hire 1000 additional employees, including 670 investigators, and restore DOL staffing to the FY 2001 levels. The Wage and Hour Division would receive an additional $35 million to hire 200 new investigators to police wages and working conditions of low-wage industries, especially the employment of young and immigrant workers.  The EEOC would receive $367 million, an increase of almost $40 million over the current budget.  The additional funding would be directed towards EEOC enforcement of the newest discrimination laws, e.g., the ADA Amendments Act and the Lilly Ledbetter Fair Pay Act.  OSHA funding would grow to $56 million, an increase of $5.1 million (10%) over the agency’s current levels. With the increase, OSHA would add 213 full-time employees with a concentration in bilingual inspectors.  The Administration’s FY10 budget also includes a 33% increase for the Office of Federal Contract Compliance Programs to fund a case management system and bolster litigation enforcement efforts.  Finally, the Administration proposes a $32 million (~13%) increase in funding for the National Labor Relations Board.

Proposed Workplace Legislation/Regulations

The following workplace bills and proposed regulations have been introduced or are being considered by the Administration or the 111^th Congress. The bolded proposals possess more political momentum than the other legislative and regulatory possibilities.  Of course, the political stars could always shift and result in a second- or third-choice bill or regulation becoming a compromise law.

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