On June 26, 2008, Sen. Kay Bailey Hutchinson (R-TX) proposed legislation that would extend the time limit workers have to file suit for employment discrimination in certain cases. The “Title VII Fairness Act” (S. 3209) would allow for an extension in cases where workers cannot reasonably be expected to have known they had been discriminated against.

The bill is a response to the Supreme Court’s decision last year in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007), which rejected the “paycheck rule” used by many courts and held that the time limit for filing a discrimination charge with the EEOC starts to run when the employer makes a discriminatory decision about the employee’s compensation, not each time the employee receives a paycheck affected by discrimination.

The proposed legislation 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 of 1973 to extend the time limit workers have to file suit for employment discrimination in certain circumstances. The bill would clarify that the limitations period for bringing forward a claim is measured from the time of the discriminatory action (which is the current law) unless the employee can demonstrate that he or she did not know, and should not have known, about the discrimination. If the employee makes such a showing, the claim-filing period would begin to run when the worker had notice of the discrimination. The bill would build upon existing guidance from the EEOC on what type of information and circumstances indicated “notice” of discrimination to the employee.

Earlier this year, Senate Health, Education, Labor, and Pensions Committee Chairman Edward Kennedy (D-MA) proposed legislation (S. 1483) aimed at the Ledbetter decision that would amend the same laws as Sen. Hutchinson’s bill. Sen. Kennedy’s bill would provide that the charge-filing periods would be triggered whenever an employee is affected by application of a discriminatory compensation decision or practice. Republican lawmakers criticized this approach by suggesting it would put unnecessary strain on employers because claims could be filed several years after the discrimination was alleged to have occurred.

Sen. Hutchinson’s bill was referred to the Senate Health, Education, Labor, and Pensions Committee. Sen. Mike Enzi (R-WY), the ranking Republican member of that committee, is a co-sponsor of the bill.

 Core Provisions: This bill 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 of 1973 to extend the time limit workers have to file suit for employment discrimination in certain circumstances. The bill would clarify that the limitations period for bringing forward a claim is measured from the time of the discriminatory action (which is the current law) unless the employee can demonstrate that he or she did not know, and should not have known, about the discrimination. If the employee makes such a showing, the claim-filing period would begin to run when the worker is charged with notice. The bill would build upon existing guidance from the EEOC on what type of information and circumstances indicated “notice” of discrimination to the employee.

Status: S. 3209 was introduced in the Senate by Sen. Kay Bailey Hutchison (R-TX) on June 26, 2008, and referred to the Senate Committee on Health, Education, Labor, and Pensions.

 On June 25, 2008, the House approved legislation (H.R. 3195) that would redefine the legal meaning of “disabled” under the Americans with Disabilities Act. Strong bipartisan support for the bill was reflected in the 402-15 vote. The legislation would establish new definitions for “disabled,” which has been narrowed by Supreme Court interpretations over the past decade, by changing the description from a physical or mental impairment that “substantially limits” one or more major life activities to one that “materially restricts” such an activity. The bill also would re-extend protections to people with disabilities not immediately evident in the workplace.

While President Bush has indicated support for the “overall intent” of the bill, the White House suggested changes to the House bill on June 24, 2008.  However, the bill was brought up under a “closed rule” that did not permit amendments.  As a result, the White House suggestions were not adopted.

The bill now heads to the Senate, where it has been championed by Senate Health, Education, Labor, and Pensions Committee Chairman Edward Kennedy (D-MA). Sen. Kennedy is not expected to return to work until after the August recess, and the bill has yet to be scheduled for a markup or vote in the Senate.

As part of its continuing efforts to increase its pressure on OSHA, the House Committee on Education and Labor held a hearing on June 24, 2008 to examine whether the OSHA is adequately enforcing construction safety rules. The Committee focused on the recent high-profile crane accidents in New York City and Las Vegas. While OSHA Assistant Secretary Edwin Foulke highlighted OSHA’s current initiatives to improve workplace safety, other witnesses expressed concern over deficiencies in the Administration’s resources, personnel, and enforcement measures. The hearing also explored the role local officials and employers have in making construction sites safer for employees.

Secretary Foulke testified regarding OSHA’s efforts to ensure that the nation’s construction workers are provided safe work environments. To address the four most common causes of occupational fatalities in the construction industry - falls, “struck bys,” “crushed bys,” and electrocutions - OSHA has implemented various programs that focus on enforcement, training, and collaboration with employers, organizations,  and state officials. Foulke maintained that increases in the number of citations, penalties, and criminal referrals, along with an 18% decline in the construction fatality rate since 2001, were indications that OSHA’s approach is working. Committee members, however, questioned the validity of this assessment, pointing out that higher numbers were not necessarily signs of enhanced rule enforcement. Chairman George Miller (D-CA) noted that without more supporting evidence, it was difficult to decipher whether the statistics truly represented improvements in workplace safety.

Foulke also fielded inquiries about OSHA’s crane and derricks standard, which has not been updated since 1971. Rep. Lynn C. Woolsey (D-CA) mentioned that OSHA began working on improving the rule in 2003, but has yet to issue its proposed revision. When asked by Chairman Miller and Rep. Timothy Bishop (D-NY) about the delay, Foulke responded that although the negotiated rulemaking process was completed in 2004, OSHA’s proposal has subsequently had to navigate a complicated set of analyses and reviews. He indicated, however, that the Administration is in the final stages of developing the proposed rule.

The hearing also included testimony from Robert LiMandri, acting Building Commissioner of New York City, and Mike Kallmeyer, Senior Vice President for Construction at Denier Electric, who spoke about measures undertaken to advance construction safety, and George Cole and Mark H. Ayers, who testified about fatalities on construction sites.

LiMandri testified that the New York City Buildings Department has adopted a seven-pronged approach to address safety issues, which includes: (1) nearly doubling the size of the agency and focusing more resources on construction safety; (2) seeking new and improved regulatory oversight and enforcement tools; (3) creating a new enforcement program to curtail problems; (4) supporting criminal prosecution of bad actors and repeat offenders; (5) conducting top-to-bottom reviews of high-risk construction areas; (6) holding all parties accountable; and (7) focusing on education for workers and requiring site safety managers. While crediting OSHA for its key role in his department’s efforts, LiMandri lamented that OSHA’s lack of resources prevented further progress and called on Congress to increase support for OSHA.

Kallmeyer testified regarding the policies his own company has adopted to encourage workplace safety. Denier employees are required to undergo standard OSHA training and complete all recognized safety courses for their field of employment.  In addition, Denier performs daily “frequent regular inspections” for each construction jobsite and conducts incident investigations for all accidents and near-misses. An employee incentive program rewards workers who maintain good safety records, exceed training requirements, and volunteer to serve on the company safety committee. Kallmeyer claimed that the most effective action for the government is to promote its educational partnerships with the construction industry so that more employers would have the resources to improve safety in the workplace.

Cole, a retired ironworker, testified regarding his brother-in-law Harold “Rusty” Billingsley, who fell 59 feet to his death last October at a Las Vegas construction site. Cole attributed Billingsley’s death to an OSHA compliance directive that he claimed violated the safety regulations contained in the Steel Erection Standard Final Rule, OSHA Subpart R. Intended to limit the fall distance to ironworkers as well as to provide protection from falling objects to workers on the ground, the standard requires a decked floor or nets for every two stories or 30 feet, whichever is less, under any erection work being performed. Cole stated that by issuing a compliance directive that allowed employers to circumvent this requirement, OSHA was intentionally failing to enforce its own safety standards. Cole also testified that though Billingsley’s employer was initially fined $13,500 for the preventable accident, all citations and fines were withdrawn following a private meeting between the company and Nevada’s OSHA.

According to Ayers, President of the AFL-CIO’s Building and Construction Trades Department, jobsite deaths of construction workers like Mr. Billingsley are unfortunately all too common. Ayers testified that, on average, four workers are killed every day on U.S. construction sites, or a total of over 1,400 workers each year.  This number is ten times the number of firefighters or law enforcement officers and over twenty times the number of miners killed on the job each year. According to Ayers, though comprising only 8% of the American workforce, construction workers account for 22% of all work-related deaths. Ayers urged the implementation of five major actions: (1) issuance by OSHA of a temporary emergency standard requiring basic ten-hour training for all workers; (2) promulgation by OSHA of a crane safety standard; (3) increased enforcement activities by OSHA; (4) creation of a dedicated Construction Occupational Safety and Health Administration; and (5) increased funding for the National Institute of Occupational Safety and Health to conduct construction safety and health research.

The Committee and witnesses also discussed whether OSHA has the necessary resources to effectively promote its safety standards. Commissioner LiMandri, Rep. Woolsey, and Chairman Miller all noted OSHA’s lack of authority to intervene quickly against unsafe workplaces. For example, while New York City is able to issue stop-work orders at a moment’s notice, OSHA’s enforcement arsenal is usually limited to imposing fines, which are typically low and assessed long after violations occur. Chairman Miller worried that even when fines are issued, they are often waived as in the case of Mr. Billingsley, thereby undermining enforcement efforts and resulting in unfairness to employees. Chairman Miller strongly urged OSHA to consider enforcement actions beyond fines, looking to examples set by programs such as New York City’s for alternative solutions.

On June 26, 2008, the House Subcommittee on Health, Employment, Labor and Pensions held a hearing to examine discrimination against transgender employees. The term “transgender” refers to individuals who feel that their biological gender does not match their true gender identity, some of whom undergo gender reassignment.

In November 2007, the House passed the Employment Non-Discrimination Act (ENDA) (H.R. 3685), which would prohibit employment discrimination on the basis of sexual orientation, but language prohibiting transgender discrimination was removed from the bill to facilitate its passage. Although the Subcommittee hearing did not concern any specific bills, Rep. Frank (D-MA) introduced legislation last fall that would prohibit discrimination on the basis of an employee’s “actual or perceived gender identity” (H.R. 3686).

Speaking in support of federal legislation to ban discrimination against transgender employees were Rep. Baldwin (D-WI), Rep. Frank (D-MA), and Dr. Bill Hendrix, the chair of Gays, Lesbians, and Allies at Dow Chemical Company. Rep. Baldwin pointed out that over 300 major U.S. businesses now ban discrimination based on gender identity, and commended them for being “way ahead of Congress.” Rep. Frank argued that any potential workplace disruption caused by transgender employees does not justify denying these individuals the chance to earn a living. Dr. Hendrix testified that creating a respectful working environment is critical to business success, and that Dow’s progressive lesbian, gay, bisexual, and transgender policies give the company an advantage in the hiring and retention of qualified workers.

Shannon Price Minter, the Legal Director of the National Center for Lesbian Rights, testified that there is an urgent need for federal law to protect transgender workers. He explained that transgender people often face discrimination, harassment, and even violence in the workplace. Although twelve states, the District of Columbia, and over 100 localities have enacted laws that prohibit discrimination against transgender workers, Minter argued that we need more than a “patchwork of laws.” The Subcommittee also heard testimony from two individuals who were stated that they were terminated after informing their employers of their intentions to undergo gender reassignment.

JC Miller, a partner at Thompson Hine LLP, cautioned the Subcommittee about the wording of any legislation to protect transgender workers and the unintended consequences that it might have. She also stressed that any legislation needs to make clear to employers the point at which they need to make modifications to accommodate transgender employees. Finally, Miller asked the Subcommittee to consider conferring exclusive jurisdiction on the federal courts and providing that prevailing parties be awarded costs and fees when litigation arises under any legislation that is enacted.

Glen Lavy, Senior Counsel and Senior Vice President for Marriage Litigation at the Alliance Defense Fund, opposed any federal legislation to ban discrimination against transgender employees. He testified that Congress should not make the “moral judgment that it is immoral for employers to not accommodate transgender employees.” He argued that hiring and retaining transgender employees might contravene some employers’ religious beliefs, that employers would be put in a difficult position because gender identity is not something that is readily observable, and that some employers would not be able to accommodate transgender employees as a practical matter.

During the questioning period, Rep. Kline (R-MN) questioned Miller about whether the terminology used in any potential legislation would require overt action by an employer in order to establish a violation. Rep. Sanchez (D-CA) expressed the view that potential litigation resulting from a transgender-protection law should not prevent Congress from passing such a law. Chairman Andrews (D-NJ) concluded by saying that Congress will need to accommodate the reasonable concerns of employers in passing legislation to prohibit employment discrimination against transgender Americans, but that he did not think that it would be prohibitively complicated to do so.

On June 24, 2008, the White House issued a statement of administration policy supporting the goals of the ADA Amendments Act of 2008 (H.R. 3195), but asking Congress to address the President’s outstanding concerns. The bill was marked up and passed out of the House Committee on Education and Labor on June 18 by a 43-1 vote.

The administration anticipates “significant avoidable litigation” would result from the legislation’s redefinition of “substantially limits” to mean “materially restricts,” a term undefined by the ADA. 

The administration suggested changes of the legislation’s treatment of “transitory” and “minor” impairments. Specifically, the White House proposes excluding from coverage impairments that are either transitory or minor, rather than only impairments that are both transitory and minor. The administration also expressed concern that the bill does not explicitly apply the “transitory and minor” exception to the general definition of disability.

In its statement, the administration expressed a willingness to work with Congress to amend H.R. 3195. However, the House Rules Committee approved a closed rule and the bill is closed to amendments. The House is expected to begin debate on the bill on June 25 or June 26, with 40 minutes of debate allotted to the House Education and Labor Committee and 20 minutes for the House Judiciary Committee.

On June 25, 2008, the Department of Labor’s Employee Benefits Security Administration (EBSA) held a webcast conference to help employers and plan administrators understand recent regulatory and interpretive guidance under the Employees Retirement Income Security Act (ERISA). During the webcast, EBSA provided updates regarding a number of regulations, including the default investment regulation, the delinquent contributions regulation, and the participant contribution safe harbor regulation. 

Default Investment Regulation. 29 CFR § 2550.404c-5 allows fiduciary relief for investments in qualified default investment alternatives, or QDIAs. Under this regulation, the plan fiduciary will not be liable for any loss that is a direct and necessary result of investing in a QDIA. In order to be protected, a few general requirements must be met. First, the participant must have had the opportunity to direct the investment of assets in his or her account, but failed to do so.  Second, the notice requirements in the regulation must have been complied with, including informing the participant of when the assets may be invested, their rights surrounding the investment, a description of the QDIA, and an explanation of where to find information on other investment alternatives. This notice must be made at least 30 days prior to the initial investment as well as 30 days before the beginning of each plan year. Finally, the investment must be one of the alternatives set forth in the regulation, which include both long-term and temporary QDIA alternatives. 

On April 30, 2008, three Correcting Amendments (73 FR 23349) were issued regarding this regulation. Correcting Amendment No. 1 identified who can manage a QDIA. A plan sponsor that is a named fiduciary of the plan can manage a QDIA. This includes a committee comprised primarily of employees of the plan sponsor, as long as the committee is a named fiduciary under the plan documents. 

Correcting Amendment No. 2 amended the provision discussing grandfather relief for stable value funds. Stable value products or funds which were default investments before the effective date of the final regulation (Dec. 24, 2007) may be QDIAs. The description originally used in the regulation could be construed to limit the availability of the grandfather relief. To rectify this problem and ensure broad application, the provision was amended and now reads “stable value products or funds must invest primarily in investment products that are backed by state or federally regulated financial institutions.” This means they can be issued directly by such institutions or the principal and accrued interest on the investment products may be backed by contracts issued by such institutions.   

Correcting Amendment No. 3 dealt with certain restrictions during the 90-day period that begins on the date of the participant’s first elective contribution or other first investment in a QDIA. Originally, the regulation prohibited all restrictions, fees or expense on transfers or withdrawals from a QDIA during this period. This was intended to avoid inhibiting transfers from or liquidations out of a QDIA. However, EBSA concluded that prohibiting all restrictions is too broad, particularly “round-trip” restrictions which restrict the ability to reinvest within a defined period of time. This amendment now allows for “round-trip” restrictions that generally affect only a participant’s ability to reinvest in the QDIA for a limited period of time. 

EBSA also issued a Field Assistance Bulletin (FAB 2008-03) regarding the default investment regulation. This FAB answers questions in six general areas of the regulation: (1) scope, (2) notice requirements, (3) limitation on fees and restrictions within the first 90 days, (4) management and asset allocation, (5) capital preservation investment option, and (6) grandfather relief for stable value products. 

Delinquent Contributions Regulation. EBSA issued a FAB regarding delinquent contributions.  This FAB covers when contributions become plan assets as well as whose responsibility it is to collect the delinquent contributions. Employer contributions become plan assets only when they have been received by the plan. If the employer fails to make contributions when due under the terms of the plan, the plan has a claim against the employer, and the claim is a plan asset. Employee, or participant, contributions become plan assets on the earliest date on which they reasonably can be segregated from the assets of the employer. Failure to collect these contributions may be a fiduciary breach by the responsible fiduciary. Failure to remit participant contributions to the plan also constitutes a prohibited transaction on the part of the employer. 

A plan must have one or more named fiduciaries who have authority to control and manage the operation and administration. Additionally, it is required that all plan assets be held in the trust and that one or more trustees have exclusive authority and discretion to manage and control the assets of the plan. There are two exceptions to the trustee’s exclusive authority to manage the assets of the plan. First, if the plan provides that the trustee is subject to proper directions of a named fiduciary, then that trustee is excepted from the exclusive authority requirement. Similarly, the trustee is also exempted when the authority to manage, acquire, or dispose of plan assets is delegated to one or more investment managers.

It is the responsibility of the named fiduciary to assure that all trustee responsibilities have been properly assigned. The general rule is that the named fiduciary may assign this duty to a discretionary trustee, a directed trustee, or may appoint an investment manager to take care of these duties. The named fiduciary can enter into a trust agreement that provides that a particular trustee is not responsible for monitoring or collecting contributions.  However, if no trustee or investment manager is given this responsibility, the named fiduciary will be liable for any losses due to failure to collect. If there is more than one trustee, the regulation also permits trustees to allocate responsibilities among themselves. In this case, a trustee is not liable for failure of another trustee to perform its allocated responsibilities. However, a trustee that is not responsible for collecting contributions still has an obligation to do so if (1) the trustee knows that no one has been assigned the responsibility to collect and (2) knows that delinquent contributions are not being collected.  

Participant Contributions Safe Harbor.  The general rule with respect to participant contributions is that they become plan assets on the earliest date that they can reasonably be segregated from the employer’s funds. The Proposed Amendment that was published on February 29, 2008 added a safe harbor for plans with fewer than 100 participants. Under this amendment, participant contributions are deemed to have been made to the plan on the earliest date on which contributions can reasonably be segregated from the employer’s general assets if they are received by the plan within seven business days of receipt of withholding by an employer. This is a way for small employers and their service providers to have the option of ensuring compliance.  EBSA has allowed small employers to rely on this safe harbor while it is still in proposed form.  Small plans can now look to the safe harbor and choose if they wish to forward, deposit, or remit the contribution to the plan. So long as this is done within seven days, EBSA will not take action with respect to the participant contribution requirements.

By a margin of 416-12, the House voted on June 19, 2008 to attach provisions extending unemployment insurance benefits into the Iraq and Afghanistan war supplemental bill (H.R. 2642), which also funds increased veterans’ benefits and Midwestern flood relief.  Incorporation of these provisions into the war supplemental appropriation virtually assures passage, given the strong bipartisan support for the war appropriation bill.

The move to attach the unemployment benefits provisions into the war supplemental appropriation follows the passage last week of the Emergency Unemployment Compensation Act of 2008 (H.R. 5749) by a margin of 274-137 on June 12. In the face of a presidential veto and hesitancy by the Senate Democratic leadership to take up the bill on a stand-alone basis, Democratic leaders in the House opted to change tactics and attach unemployment benefits to H.R. 2642.

The unemployment insurance provisions of H.R. 2642 closely resemble those of the Emergency Unemployment Compensation Act, and provide jobless workers who have exhausted their benefits with 13 additional weeks of benefits, with additional 13-week extensions to workers in states with the highest rates of unemployment. In order to achieve bipartisan passage, House Democrats agreed to drop a controversial provision of the stand-alone bill that would have eliminated the current 20-week work requirement to receive federal benefits.  Absent that provision, the Bush Administration has indicated support for the extension of unemployment benefits.

The Iraq and Afghanistan war supplemental bill, including the unemployment benefit provisions, now moves to the Senate for consideration.

On June 19, 2008, the House Committee on Education and Labor held a hearing on the underreporting of workplace injuries and illnesses. Despite indications that the number of workplace injuries is decreasing, the hearing was prompted by recent newspaper articles and scholarly surveys suggesting significant inaccuracies in the reporting of workplace accidents and illnesses. The testimony focused on the methods used by the Occupational Health & Safety Administration (OSHA) in gathering and reporting worker safety data.

Mr. A.C. Span, Jr., an injured worker, Dr. Robert McLellan, Immediate Past President of the American Conference of Occupation and Environmental Medicine, and Dr. Kenneth Rosenman, Professor of Medicine at Michigan State University, testified in support of revising current OSHA practices. Each pointed to OSHA’s reliance on gathering information solely from employers as a significant part of the underreporting problem. Both Mr. Span and Dr. McLellan highlighted the pressure employees experience to hide their injuries from employers in order to avoid sanctions or reductions in pay. Dr. Rosenman supported the anecdotal testimony with information from studies that suggest underreporting could be as high as 66% in some industries.  He found that a mismatch exists between the employees’ goals of securing health care and the employers’ desires to avoid inspections and audits by OSHA. In support of this position, Chairman Miller (D-CA) encouraged interviewing both employers and employees in order to advance accurate reporting.

Mr. Bob Whitmore, Former Chief of OSHA, Division of Recordkeeping, who did not represent OSHA but testified on his own behalf, also supported revisions to OSHA practices. Instead of focusing on the role played by the employer, Mr. Whitmore believed the underreporting stemmed from problems within OSHA. He contended that OSHA wants to appear as if it is fulfilling its duty to reduce the number of workplace injuries and illnesses. However, by undertaking a stricter enforcement role, underreported cases would be exposed, resulting in an increase in the number of injuries. Ultimately, Mr. Whitmore believes Congress must acknowledge the underreporting before OSHA can adequately enforce workplace safety reporting.

Although acknowledging some underreporting, Mr. Baruch Fellner, a partner from Gibson, Dunn & Crutcher, LLP representing the U.S. Chamber of Commerce, testified that the majority of employers are accurately reporting cases. Mr. Fellner was wary to overhaul the OSHA system without more information regarding the inaccuracies in the system and their origins. In response to questioning, Mr. Fellner refuted the use of data obtained by cross-referencing worker compensation or hospitals records since they include individuals outside of OSHA’s jurisdiction and have different definitional standards of an injury compared to those classified by OSHA.

Likewise, Mr. John Ruser, Assistant Commissioner of Safety and Health Statistics at the Bureau of Labor Statistics, did not advocate immediate reform of OSHA. Instead, he outlined changes OSHA is currently undertaking, including additional research on underreporting and expanding OSHA to include government workers; this point was supported by Chairman Miller (D-CA).

Rep. Sarbanes (D-MD), Rep. Woolsey (D-CA), Rep. Kildee (D-MI), and Chairman Miller  supported a review of OSHA practices and acknowledged the problem of accurately reporting worker injuries and illnesses. Although no specific reform was mentioned, Rep. Sarbanes worried that current OSHA practices may actually promote non-reporting. Ranking Member McKeon (R-CA) expressed hesitancy to change OSHA procedures. Rather, he encouraged Congress to take a closer look at current record-keeping practices and supported providing guidance to employers, notifying them of their responsibility to report worker injuries and illnesses.

On June 19, 2008, the House Veterans’ Affairs Subcommittee on Economic Opportunity held a hearing addressing, among other legislation, the recently introduced Injunctive Relief for Veterans Act (H.R. 6225). Offered by Subcommittee Chairwoman Stephanie Herseth Sandlin (D-SD) on June 10, 2008, the bill would require courts to grant injunctive relief, when appropriate, to Uniformed Services Employment and Reemployment Rights Act (USERRA) claimants.

Testifying in favor of the bill were Kerry Baker on behalf of the Disabled American Veterans, Joseph C. Sharpe, Jr. on behalf of The American Legion, Richard Daley on behalf of Paralyzed Veterans of America, and Rick Weidman on behalf of Vietnam Veterans of America. 

The Injunctive Relief for Veterans Act (H.R. 6225), if passed, would amend USERRA by changing the word “may” to “shall” in Section 4323(3) of Title 38. This would require courts to grant injunctive relief in appropriate circumstances.

The bill is a response to a 2005 ruling by the U.S. Court of Appeals for the Seventh Circuit (Bedrossian v. Northwestern Mem’l Hosp., 409 F.3d 840 (7th Cir. 2005)), which found that an employee bringing a USERRA claim needed to show irreparable harm to obtain an injunction against termination. Under the proposed legislation, the claimant would still need to demonstrate his or her entitlement to equitable relief in the form of an injunction; however, once the claimant has established that an injunction is appropriate, the court would be required to grant the injunction.