On October 1, 2008, as part of a compromise financial rescue plan intended to address the country’s credit crisis, a bipartisan Senate majority passed H.R. 1424 by a 74-25 vote. Taken up after the House failed to pass a financial rescue plan on September 29, the Senate bill includes additional “sweeteners” intended to make the package more palatable to House members who voted down the House version of the financial bailout plan.

Of particular interest to employers, the Senate bill also includes a “mental health parity” provision which had been previously passed by overwhelming majorities in the House (H.R. 6983) and Senate (H.R. 6049) in separate bills on September 23, 2008. Like these previous bills, the mental health parity provision of H.R. 1424 requires health plans providing mental health coverage to provide mental health coverage in the same manner as other physical health conditions. The Senate bill exempts group health plans of employers with fewer than 50 employees from these new requirements.

On September 26, 2008, by a margin of 264-158, the House voted to extend unemployment insurance benefits (H.R. 7110). The bill provides over $58 billion in funding for transportation infrastructure projects and $6.5 billion for unemployment benefits.

Earlier on September 26, the Senate failed to pass similar unemployment benefit provisions as part of an economic stimulus bill (S. 3604). The bill, sponsored by Majority Leader Harry Reid (D-NV) and Sen. Robert Byrd (D-WV), fell 8 votes short of the 60-vote threshold required to overcome a Republican filibuster, obtaining only a 52-42 majority.  Republicans objected to language in the bill extending a ban on offshore drilling.

The unemployment insurance provisions of both bills would provide jobless workers who have exhausted their benefits with 7 more weeks of benefits, with additional 13-week extensions to workers in the 20 states (and the District of Columbia) with unemployment rates above 6 percent.

Following the failure of S. 3604 to receive 60 votes, the Senate may take up the House bill, which itself would then face a potential filibuster. The unemployment provisions could also be attached to other legislation, such as a potential financial system bailout bill.

The Bush Administration has announced its opposition to both the House and Senate bills and has promised a veto of both. It objects to the cost of the unemployment benefit provisions, as well as the precedent set by the extension of benefits, which follow a previous extension in July 2008.

On September 24, 2008, the House passed by a voice vote the Railroad Safety Improvement Act (H.R. 2095), which increases rail employee training standards and modifies hours of service requirements. 

H.R. 2095, which also includes provisions reauthorizing Amtrak and providing funds to various rail safety initiatives, gained recent momentum following a tragic California train accident on September 12. Supported by the major rail unions and industry groups, the Act would provide resources to the Federal Railroad Administration (”FRA”), create minimum training standards for railroad workers, and strengthen FRA enforcement powers. H.R. 2095 requires the FRA to establish a certification program of conductors and requires a study on certification of other classes and crafts of rail employees.

The bill enhances various hours-of-service requirements to address fatigue among train and signal employees, who are currently forbidden from being required to be on duty more than 12 consecutive hours. H.R. 2095 provides that all train and signal employees are provided at least 10 consecutive hours of uninterrupted rest following 12 hours on duty (although this requirement would be suspended three years for passenger train employees during an FRA study of the issue). It also ensures that train and signal employees receive 48 consecutive hours off duty at their home terminals after each six days being on duty, and 72 consecutive hours off duty at their home terminals in the event they are required to work a seventh day.  

H.R. 2095 caps “limbo time,” the time spent by rail crews after completing service awaiting transportation or being transported to the point of final release. Although paid time, “limbo time” counts neither as time on duty or time off duty and does not currently count against the maximum daily 12 hours of service.

H.R. 2095 requires railroads to develop plans to limit and manage worker fatigue and prohibits railroads from interfering with or delaying medical treatment of injured workers and forbids disciplining workers for requesting treatment. It also mandates the implementation of a positive train control system by Class I railroads and intercity passenger and commuter railroads by the end of 2015. A positive train control system would allow for automatic control and stopping of locomotives in the event of a missed signal, providing a backup safety system in the event of a human error.

Although the compromise bill maintains widespread bipartisan support, Sen. Tom Coburn (R-OK), has stated he will delay the bill because it provides $1.5 billion to the Washington Metropolitan Area Transit Authority. This procedural delay requires Democratic Senate leadership to hold a cloture vote on the bill.

On Tuesday, September 23, 2008, the United States Senate Committee on the Judiciary held a hearing entitled “Barriers to Justice: Examining Equal Pay for Equal Work.”  The focus of the hearing was the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074 (May 29, 2007) and the legislative responses to that decision, including the Fair Pay Restoration Act (H.R. 2831, S. 1483). 

Under the Ledbetter decision, an employee has 180 days from the employer’s initial act of pay discrimination in which to bring an action.  The Fair Pay Restoration Act would supplant the Supreme Court’s Ledbetter decision by permitting employees to challenge each and every discriminatory paycheck the employee receives within a two year period before filing a claim, as long as the claim is filed within 180 days of receiving a discriminatory paycheck.   Senators Feinstein, Feingold, and Leahy gave statements in support of the Fair Pay Restoration Act, and the committee heard from three witnesses concerning an alleged judiciary bias against plaintiffs in employment cases.

Senator Feinstein shared statistics that she stated demonstrated the immediate and future impact felt by women and their families as a result of discriminatory pay policies.  She asserted that disproportionate pay not only harms women and their families now, but also in retirement when, as a result of their smaller paychecks, women collect smaller pension checks.

Senator Leahy noted that in the current economic downturn many Americans are struggling for basic necessities. “It is sad that recent decisions handed down by the Supreme Court and Federal appellate courts have contributed to the financial struggles of so many women and their families,” he contended.

Senator Feingold belittled the Supreme Court’s Ledbetter decision, calling it erroneous and stating that it ignores the realities of the American workplace in which most employees have no way of learning within 180 days that they are being discriminated against in terms of compensation.  Senator Feingold also responded to critics of the legislation, who charge that the Act would force employers to defend themselves in costly litigation, by stating that the Act will “only affect those employers who underpay and discriminate against their workers, hoping that employees, like Ms. Ledbetter, won’t find out in time.”

Lilly Ledbetter, the plaintiff at the center of the controversial Supreme Court decision and one of the three witnesses to testify before the committee, also argued that the current state of the law under the Supreme Court’s decision does not make sense given the realities of the American workplace.  Ms. Ledbetter told the committee her story, and specifically about how, after years of working for Goodyear, she learned that she was being paid substantially less than her male peers for identical work.  “Justice Alito and four other Supreme Court justices sent the message that it’s just tough luck for the employee - if she doesn’t complain at the time of the employer’s original decision, the employer gets to pay her less for the rest of her career,” stated Ms. Ledbetter.

In addition to Ms. Ledbetter, two attorneys also testified before the Committee.  Lawrence Z. Lorber, a management-side practitioner, and Cyrus Mehri, a plaintiff-side attorney, gave the committee their views on the Ledbetter decision, and what the decision says about the way the judiciary views employment cases and employment plaintiffs.  Mr. Mehri catalogued what he perceived as a growing judicial bias against plaintiffs in employment cases, and specifically employment discrimination plaintiffs.  Mr. Mehri opined that the Ledbetter decision is an example of such anti-plaintiff bias and concluded that the only way to counteract this bias is to diversify the judiciary by expanding the pool of judicial nominees. Mr. Lorber contradicted Mr. Mehri’s evidence by enumerating a number of recent Supreme Court decisions in employment cases that expanded protections for employees under the ADEA, Section 1981, ERISA, and Title VII.  Mr. Lorber asserted that the cases he cited, all of which were decided during the Supreme Court’s 2007-2008 Term, demonstrate that there is no “pro-employer” bias or “anti-plaintiff” bias when the Court interprets employment laws.

Mr. Lorber also offered criticism of the Paycheck Fairness Act (H.R. 1338), proposed legislation that would eliminate the caps on punitive and compensatory damages in actions brought under the Equal Pay Act, and would make it more difficult for employers to establish the “bona-fide factor” affirmative defense.

On September 23, the House and Senate each approved Mental Health Parity legislation, but did so via differing legislative vehicles.  The House passed H.R. 6983, a stand-alone mental health parity bill, by a solid bipartisan majority: 376-47. The Senate, which saw a previous stand-alone bill go down to defeat at the hands of a Republican filibuster on July 30, overwhelmingly passed (by a 93-2 margin) energy and tax legislation, H.R. 6049, that included identical mental health parity language.  Both bills require health plans providing mental health coverage to provide mental health coverage in the same manner as other physical health conditions.

The mental health parity provisions would amend ERISA to require group health plans to administer treatment limitations, beneficiary financial requirements and out-of-network coverage so that mental health benefits are no more restrictive than “substantially all medical and surgical benefits.”  The legislation would exempt group health plans of employers with fewer than 50 employees.

Unlike the Senate bill which does not directly offset the costs of the mental health parity provisions, the House bill is paid for by a delay in a tax benefit to multinational corporations.  According to the Senate Finance Committee, the parity provisions are expected to cost nearly $4 billion over the next decade.  It is unclear whether the House or the Senate will move first towards adopting the other house’s bill in an effort to reconcile the parity provisions.

The Bush administration released a statement expressing support for the Senate energy and tax bill which includes the mental health parity language, H.R. 6049.

On September 23, 2008, after forty minutes of debate, the House suspended the rules and passed the Health Insurance Restrictions and Limitations Clarification Act of 2008 (H.R. 6908).  This legislation was previously titled the Health Insurance Source of Injury Clarification Act of 2008.

This legislation would amend the provisions of the Employee Retirement Income Security Act, Public Health Service Act, and Internal Revenue Code permitting group health plans to establish limitations or restrictions on the amount, level, extent, or nature of the benefits or coverage for similarly situated individuals enrolled in the plan or coverage.  The new language would clarify that such limitations must be explicit and clear and disclosed to the plan sponsor in advance of the point of sale to the plan. The plan sponsor and issuer of the coverage would be required to make available to participants and beneficiaries prior to their enrollment and upon their enrollment a description of such limitations and restrictions in an easily understandable form.  The legislation was amended to clarify that providing such materials upon enrollment meant “at the earliest opportunity that other materials are provided.”

On September 17, 2008, the House passed the ADA Amendments Act (ADAAA) (S. 3406) by voice vote.  The White House has indicated that President Bush will sign the bill.

Passed in the Senate by unanimous consent on September 11, 2008, this legislation would overturn a number of controversial U.S. Supreme Court decisions that have narrowed the scope of the ADA.  The legislation purports to return the ADA to its original scope as intended by Congress in 1990 by prohibiting courts from considering “mitigating measures” such as medication, prosthetics, and assistive technology in determining whether an individual is “disabled” under the ADA.  However, S. 3406 does permit consideration of standard vision correction achieved through normal glasses or contact lenses.

A person is considered disabled under the ADA if they suffer from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Although the new legislation retains the previously-debated “substantially limits” language, the bill directs the Equal Employment Opportunity Commission to change the current regulations defining “substantially limits” as “significantly restricted” because such regulations are “inconsistent with congressional intent, by expressing too high a standard.”

A statement released by the White House after the House vote, indicated that the president “looks forward to signing the ADAAA into law.” If enacted, the ADA Amendments Act would go into effect on Jan. 1, 2009.

Core Provisions: This untitled legislation purportedly intends to “protect the civil rights of victims of gender-motivated violence . . . by creating employer liability for negligent conduct that results in an individual’s committing a gender-motivated crime of violence against another individual on premises controlled by the employer.”  Where an employer’s negligent conduct results in a gender-motivated violent crime on the employer’s premises, this legislation would impose employer liability for compensatory and punitive damages and injunctive and declaratory relief.  The legislation directs the Equal Employment Opportunity Commission to create and provide materials to employers regarding personnel policies and safety standards to assist employers in avoiding liability under the bill.

Status: Rep. Maloney (D-NY) introduced H.R. 6927 on September 17, 2008, and it was referred to the House Committee on Education and Labor and the House Judiciary Committee.

Core Provisions: This legislation would amend the provisions of the Employee Retirement Income Security Act, Public Health Service Act, and Internal Revenue Code permitting group health plans to establish limitations or restrictions on the amount, level, extent, or nature of the benefits or coverage for similarly situated individuals enrolled in the plan or coverage.  The new language would clarify that such limitations must be explicit and clear and disclosed to the plan sponsor in advance of the point of sale to the plan.  The plan sponsor and issuer of the coverage would be required to make available to participants and beneficiaries prior to their enrollment and upon their enrollment, a description of such limitations and restrictions in an easily understandable form.

Status: Rep. Burgess (R-TX ) introduced the Health Insurance Source of Injury Clarification Act on September 16, 2008, and it was referred to the House Committees on Energy and Commerce, Education and Labor, and Ways and Means.  On September 17, 2008, the House Energy and Commerce Committee held a mark-up session and ordered H.R. 6908 to be reported by a voice vote.

Core Provisions: This legislation would provide for additional emergency unemployment compensation by amending the Supplemental Appropriations Act to extend benefits for jobless workers who have exhausted their benefits.  The bill would augment individuals’ benefit amounts by the lesser of 50 percent of the regular compensation payable to the individual during the benefit year under state law, or 13 times the individual’s average weekly benefit amount for the benefit year. The legislation’s phase-out provisions provide for no augmentation of benefits after March 31, 2009.

Status: Rep. McDermott (D-WA) introduced H.R. 6867 on September 10, 2008, and it was referred to the House Committee on Ways and Means.