On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Restoration Act (S. 181). This is the first bill President Obama has signed into law.

At the signing ceremony, which came one day after the House passed the Senate version of the bill with a vote of 250-177, President Obama said, “in signing this bill today, I intend to send a clear message: that making our economy work means making sure it works for everyone. That there are no second class citizens in our workplaces, and that it’s not just unfair and illegal-but bad for business-to pay someone less because of their gender, age, race, ethnicity, religion or disability.” The Senate had passed the bill with a vote of 61-36.

The Lilly Ledbetter Fair Pay Act provides that compensation discrimination occurs “when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from [a discriminatory decision or practice.]” Additionally, the legislation applies this language to discrimination claims brought under the Age Discrimination in Employment Act, Americans with Disabilities Act, and Rehabilitation Act. 

The bill applies retroactively, and take effect as if enacted on May 28, 2007, the day before Ledbetter v. Goodyear Tire & Rubber Co. was decided.

On March 17, 2009, OSHA will hold a public hearing to receive comments on its proposed rule designed to increase the protection provided for employees against hazards associated with the use of cranes and derricks in construction activities. The hearing will be held in the Frances Perkins Building, U.S. Department of Labor, 200 Constitution Avenue, N.W. Conference Room 6, Room C-5320, Washington, D.C. 20210. The hearing will commence at 10:00 a.m. on March 17, 2009 and, if necessary, will continue on March 18, 2009 at 9:00 a.m.

If a party is interested in providing testimony during the hearing, it must notify OSHA in writing no later than February 13, 2009. OSHA has also asked for each party’s testimony to be no more than 10 minutes. If a party needs more than 10 minutes to present testimony or will submit documentary evidence at the hearing, it must provide OSHA with copies of the full testimony and all documentary evidence by March 3, 2009.

The notice of intention to appear at the hearing, hearing testimony, and documentary evidence may be submitted in three ways: 1) post the comments electronically through the Federal eRulemaking Portal, 2) send three copies to the OSHA Docket Office, Technical Data Center, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C., 20210, or 3) if less than 10 pages, fax the comments to 202-693-1648. Each submission must include the sender’s name, date, subject, and Docket Number for this rulemaking (OSHA-2007-0066).

On January 28, 2009, the House passed the $819 billion economic stimulus package (H.R. 1) by a vote of 244-188. The package, among other things, includes an amendment requiring federal contractors who receive funds from the stimulus package to use the E-Verify system. Rep. Jack Kingston (R-Ga.) added the amendment to the stimulus package during a January 21, 2009 markup by the House Financial Committee, which approved the language by voice vote.

E-Verify is an internet-based system administered by the Department of Homeland Security’s U.S. Citizenship and Immigration Services, in partnership with the Social Security Administration, that allows employers to verify employees’ work eligibility. The rule applies to all contracts lasting longer than 120 days and valued over $100,000, as well as any subcontracts over $3,000 for services or construction. Contracts for commercially available off-the-shelf items are exempted.

Originally scheduled to go into effect on January 15, 2009, DHS has postponed the implementation of the program twice. On January 9, 2009, DHS delayed until February 20, and on January 28, DHS further extended implementation until May 21, 2009.

The bill passed to the Senate for consideration in early February 2009.

On January 27, 2009, the House passed the Senate version of the Lilly Ledbetter Fair Pay Act (S. 181) by a margin of 250-177.  The House, which passed a different version of the bill on January 9 by a vote of 247-171, acted days after the Senate passed the identical bill 61-36 on January 22.

The legislation, which would overturn the Supreme Court’s controversial 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., now awaits President Obama’s signature. The President campaigned in favor of the bill and is expected to sign it into law on January 29, 2009.

Introduced in the Senate by Sen. Barbara Mikulski (D-MD) on January 8, S.181 would amend Title VII to allow claims brought within 180 days of receiving any paycheck affected by a discriminatory pay decision, no matter how far in the past an act of discrimination allegedly occurred. Specifically, the legislation provides that compensation discrimination occurs “when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from [a discriminatory decision or practice.]”

Additionally, the legislation applies this language to discrimination claims brought under the Age Discrimination in Employment Act, Americans with Disabilities Act, and Rehabilitation Act. Once the bill becomes law, it would take effect as if enacted on May 28, 2007, the day before the Ledbetter decision was issued.

Core Provisions: This legislation would create a National Commission on State Workers’ Compensation Laws to study and evaluate characteristics of current state workers’ compensation schemes including benefit amounts, “bad faith delays” in benefit payments, provisions ensuring adequate medical care and free choice of physician, rehabilitation, filing periods, waiting periods, compulsory or elective coverage, administration, due process rights, and the relationship between workers’ compensation and other types of insurance (public or private).

The Commission would be composed of 14 members, 10 of whom would be political appointees, no more than six of whom could be from the same political party. The Secretary of Labor, Secretary of Commerce, Secretary of Health and Human Services, and Secretary of Education would be ex officio Commission members. The legislation requires at least three members that represent injured workers, three members that represent insurance carriers or employers, and one member of the general public.

The Commission would have the authority to hold hearings, issue subpoenas, take testimony, and receive evidence. The Commission could submit interim reports of its findings to the President and Congress, but would be required to submit a final report of its findings and recommendations not later than 18 months after the date of the statute’s enactment, and the Commission would terminate 19 days after this final report is submitted. The final report would include the Commission’s recommendations for improvements in benefit levels, medical care, administration of state workers’ compensation systems, insurance practices, due process and evidentiary hearings and reduction of bad faith handling and delays, as agreed upon by a majority of Commission members.

Status: Rep. Baca (D-CA) introduced the National Commission on State Workers’ Compensation Laws Act of 2009 on January 22, 2009 and it was referred to the House Committee on Education and Labor. Rep. Baca introduced identical legislation (H.R. 6714) in the 110th Congress on July 31, 2008, when it was referred to the House Committee on Education and Labor and not acted upon thereafter.

Core Provisions: This legislation, originally introduced on January 13, 2009, would amend the Uniformed Services Employment and Reemployment Rights Act to extend its prohibition against discrimination and acts of reprisal against armed service members to include persons who receive treatment for illnesses, injuries, and disabilities incurred in or aggravated by service in the uniformed services. The amended statute would therefore prohibit employers from discriminating or making any adverse employment decision against a veteran on the basis of that employee or applicant’s receipt of treatment for an illness, injury, or disability determined by the Secretary of Veterans Affairs to have been incurred in or aggravated by uniformed service.

As amended on May 19, 2009, the legislation would create additional rights for veterans absent from work for a military service-connected disability. These employees would be: 1) entitled to be retained by the employer and 2) entitled to the seniority and seniority-related rights and benefits the veteran had on the date of the treatment for the disability, plus any additional seniority, rights, and benefits the veteran would have attained had he or she remained continuously employed. In addition, these employees would be deemed to be on furlough or a leave of absence while receiving treatment for a military service-connected disability, and therefore would be entitled to other non-seniority rights and benefits generally provided by the employer to employees having similar seniority, status, and pay who are on furlough or a leave of absence. Employees would not be entitled to such non-seniority rights and benefits if the employee provides written notice to the employer of having no intent to return to employment following medical treatment. 

Further, employers would not be required to retain a covered veteran if: 1) circumstances have so changed to make retention impossible or unreasonable, 2) retention would pose an undue hardship on the employer, or 3) the employment in question is for a brief, nonrecurrent period and there is no reasonable expectation that it will continue indefinitely or for a significant period.

The legislation also would permit any veteran absent from work due to treatment for a military service-connected disability to use any accrued vacation, annual, medical, or similar leave with pay to cover such time away from work, although an employer cannot require a veteran to do so.

Status: Rep. Doggett (D-TX) introduced the Wounded Veteran Job Security Act on January 13, 2009 and it was referred to the House Committee on Veterans’ Affairs. The bill was reported with amendments to the House Committee on Veterans’ Affairs and placed on the Union Calendar on May 19, 2009.

On January 20, 2009, President Obama designated Wilma B. Liebman Chairwoman of the NLRB. Liebman was first appointed as a member of the Board in 1997 by President Clinton. Reappointed twice by President Bush, her third term will expire on August 27, 2011.  While the Board is presently composed of only Chairwoman Liebman and Republican Peter Schaumber, additional Democrat appointments are expected early in the Obama administration. Once a clear Democrat majority is established, several precedents established during the Bush administration may be reversed.

In a press release following her designation, Chairwoman Liebman proclaimed that “[t]he Board’s work matters, just as it did when the National Labor Relations Act was passed in 1935.  Democracy in the workplace is still basic to a democratic society, and collective bargaining is still basic to a fair economy.  The statute we administer is the foundation of America’s commitment to human rights recognized around the world.”

Prior to joining the Board, Liebman served for two years as Deputy Director of the Federal Mediation and Conciliation Service (FMCS), and for two years as Special Assistant to the Director of FMCS. From 1990 to 1993, Liebman was Labor Counsel for the International Union of Bricklayers and Allied Craftworkers. Prior to that, Liebman served as Legal Counsel to the International Brotherhood of Teamsters for nine years. In addition, Liebman served as a staff attorney with the Board from 1974 to 1980.

As Chairwoman, Liebman may seek to reverse the perceived “anti-labor” tilt of the Bush Board led by former Chairman Robert Battista. Liebman has described the core purpose of the NLRA as protecting the right of employees to organize and promoting collective bargaining. In Liebman’s view, the Board under the leadership of Battista fell far short of upholding these principles. Liebman has disagreed publicly with several prominent Board decisions that she has said leave fewer workers with fewer rights, including Dana Corp., which requires employers who voluntarily recognize a union to post a notice informing employees that they have 45 days to petition the Board to decertify the union, and St. George Warehouse, which shifts a portion of the burden of production from the employer to the General Counsel on the issue of an employee’s efforts to mitigate damages. Liebman has stated that “virtually every recent policy choice by the Board impedes collective bargaining, creates obstacles to union representation or favors employer interests.”  Liebman believes this has resulted in a loss of confidence in the Board and the Board’s processes.

Liebman has also pushed for a comprehensive re-examination of the National Labor Relations Act, which she has said is in decline. While testifying before the Senate Appropriations Committee’s Labor, Health and Human Services, Education, and Related Agency Subcommittee in April 2008, Liebman told the senators that “[g]iven the many changes in American society, and in the global economy, it seems desirable - whatever our policy preferences might be - to make sure that our labor law evolves and that the rights it protects do not become illusory.”

For a more detailed review of Board decisions and policy that may be reconsidered under an Obama Board, click here.

On January 23, 2008, the EEOC announced that President Barack Obama has named Commissioner Stuart Ishimaru as Acting Chairman of the EEOC and Commissioner Christine Griffin as Acting Vice Chair.

Ishimaru has been a Commissioner since November 2003, and his current term expires on July 1, 2012. Griffin, whose term expires on July 1, 2009, has been on the Commission since January 2006. The other members on the Commission are Naomi Earp, whom Ishimaru replaces as Chair, and Constance Barker. The fifth seat on the Commission is vacant.

On January 22, 2009, by a 61-36 margin, the Senate passed the Lilly Ledbetter Fair Pay Act (S. 181, H.R. 11), which would overturn the Supreme Court’s controversial 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. President Obama supports the legislation, which passed the House of Representatives on January 9, and is expected to sign it into law shortly.

Senate passage comes one week after the new Senate voted for cloture on S. 181 on January 15. Republicans had blocked a vote on the legislation in the 110th Congress, but Democratic gains in the 2008 elections gave supporters of the bill a filibuster-proof majority. Once it became clear that Republican opponents of the bill lacked the votes to filibuster the popular bill, 17 Republicans crossed party lines to vote for cloture. However, only five of those 17 Republicans supported the bill’s final passage.  All voting Democratic and Independent senators voted in favor of the Ledbetter bill.

Introduced by Sen. Barbara Mikulski (D-MD) on January 8, the bill would amend Title VII to allow claims brought within 180 days of receiving any paycheck affected by a discriminatory pay decision, no matter how far in the past an act of discrimination allegedly occurred. Specifically, the legislation provides that compensation discrimination occurs “when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from [a discriminatory decision or practice.]” Additionally, the legislation applies this language to discrimination claims brought under the Age Discrimination in Employment Act, Americans with Disabilities Act, and Rehabilitation Act. Once the bill becomes law, it would take effect as if enacted on May 28, 2007, the day before the Ledbetter decision was issued.

On January 20, 2009, White House chief of staff Rahm Emanuel issued a memorandum to all heads of executive agencies and departments instructing them to suspend all regulations not yet published. This suspension will allow President Obama’s new appointees to review the pending regulations.

Under Emanuel’s memorandum, no proposed or final regulation should be sent to the Office of the Federal Register (”OFR”) for publication unless and until it has been reviewed and approved by a department or agency head (or a delegate of the department or agency head) appointed or designated by the President.  In addition, all proposed or final regulations that have not been published in the Federal Register must be withdrawn from the OFR. Finally, department and executive agency heads should consider extending the effective date by 60 days for all regulations that have been published in the Federal Register but have not taken effect. If an extension is given, the agency or department head must immediately reopen the notice-and-comment period for 30 days for all interested parties to provide comments. 

These directives contain an exception permitted by the Office of Management and Budget Director for “emergency situations or other urgent circumstances relating to health, safety, environmental, financial, or national security matters.”  In addition, the directives do not apply to any regulations subject to statutory or judicial deadlines.

Among the regulations likely affected by the Emanuel memorandum are the OSHA crane and derrick proposed rule, for which the comment period ended on January 22, 2009, and a pending OSHA rule on confined spaces in construction.