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Washington Labor & Employment Wire » Civil Rights

Wounded Veteran Job Security Act (H.R. 466)

Core Provisions: As passed by the House on June 8, 2009, the bill 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.

The bill as passed by the House would further establish certain rights of veterans absent from employment 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 other rights and benefits determined by seniority the veteran had on the date of the treatment for the disability, plus the additional seniority and 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 House version of the bill 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. The bill was passed by the House in a voice vote on June 8, 2009. The bill will now move to the Senate.


Wounded Veteran Job Security Act (H.R. 466)

Core Provisions: As passed by the House on June 8, 2009, the bill 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.

The bill as passed by the House would further establish certain rights of veterans absent from employment 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 other rights and benefits determined by seniority the veteran had on the date of the treatment for the disability, plus the additional seniority and 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 House version of the bill 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. The bill was passed by the House in a voice vote on June 8, 2009. The bill will now move to the Senate.


ADA Notification Act of 2009 (H.R. 2397)

Core Provisions: The bill would amend the enforcement section of Title III of the Americans with Disabilities Act of 1990, by adding a procedure that allows covered entities the opportunity to correct an alleged violation prior to the initiation of a plaintiff’s lawsuit under the ADA or a related state statute. Title III covers places of public accommodation; commercial facilities; and private entities that offer certain examinations and courses related educational and occupational certification.

Under the proposed legislation, before filing a complaint in federal or state court alleging a violation of the ADA or a state law that conditions a violation of its provisions based on a violation of the ADA, a plaintiff would be required to provide the covered entity with written notice of the alleged violation and an opportunity to remedy the alleged violation. The written notice would need to (1) identify the facts that constitute the alleged violation, including the location of the alleged violation and the date on which the alleged violation occurred; and (2) contain a statement indicating that the plaintiff is barred from filing a complaint until the end of a 90-day remedial period. Covered entities would have 90 days to correct an alleged violation following receipt of the written notice. If a plaintiff ultimately files a complaint under the ADA or a related state statute, the complaint would be required to state that as of the date of the filing, the defendant had not corrected the alleged violation. The bill would permit a court to extend the 90-day remedial period one time by a period not to exceed 30 days if the defendant applies for an extension.

Status: On May 13, 2009, Rep. Duncan D. Hunter (R-CA) introduced H.R. 2397. The bill was referred to the House Committee on the Judiciary following its introduction.


Fair Pay Act of 2009 (S. 904, H.R. 2151)

Core Provisions: This Act would amend the Fair Labor Standards Act of 1938 to prohibit discrimination in the payment of wages on the basis of sex, race or national origin. The Act requires employers to provide equal pay for jobs that are comparable in skill, effort, responsibility and working conditions. It also prohibits companies from reducing other employees’ wages to achieve this pay equity. In addition, the Act mandates that employers disclose their job categories and pay scales to the public. Employers would still be able to differentiate in wage rates based on seniority systems, merit systems, and systems that measure earnings by quantity or quality of production. Aggrieved employees would have the choice of filing a charge with the EEOC or proceeding directly to federal court.  The bill would permit compensatory and punitive damages against non-government employers and allow plaintiffs to pursue Rule 23 class actions instead of the present opt-in collective action mechanism used for Equal Pay Act and FLSA actions.

Status: Sen. Harkin (D-IA) introduced S.904 on April 28, 2009 and it was referred to the Committee on Health, Education, Labor, and Pensions. Rep. Norton (D-DC) introduced H.R.2151 on April 28, 2009 and it was referred to the Committee on Education and Labor. Substantially similar legislation was introduced in the 110th Congress, but failed to make it out of committee.


Arbitration Fairness Act of 2009 (H.R. 1020)

Core Provisions:  On February 12, 2009, Rep. Henry C. Johnson (D-GA) and 36 cosponsors introduced the Arbitration Fairness Act of 2009 (H.R. 1020). The bill would amend the Federal Arbitration Act to invalidate all predispute arbitration agreements mandating the arbitration of any employment, consumer, or franchise dispute, as well as any disputes arising under any civil rights statutes. The bill does not apply to arbitration provisions adopted as part of a collective bargaining agreement.

Intended to minimize the use of prearbitration agreements between parties of unequal bargaining power, the bill broadly defines “employment dispute” to include any “dispute between an employer and employee arising out of the relationship of employer and employee” as defined by the Fair Labor Standards Act.

The bill provides that challenges to the enforceability of an arbitration agreement would be heard by a federal court, and not by an arbitrator.

While the 2009 Arbitration Fairness Act mirrors its 2007 predecessor (H.R. 3010, S. 1782) from the 110th Congress in several respects, the current bill omits past provisions invalidating predispute agreements requiring the arbitration of disputes arising under any statute intended to regulate contracts or transactions between parties of unequal bargaining power. The Arbitration Fairness Act of 2007 was sent to the House Judiciary Committee and the Senate Subcommittee on the Constitution, but neither committee ever voted on the bill.

Status: The 2009 bill has been referred to the House Judiciary Committee. A hearing has not yet been scheduled.


President Obama Signs Lilly Ledbetter Bill Fair Pay Restoration Act


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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.


House Passes Senate Version of Lilly Ledbetter Fair Pay Act; Moves to President Obama for Signing on Thursday


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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.


Wounded Veteran Job Security Act (H.R. 466)

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.


Senate Passes Lilly Ledbetter Fair Pay Act

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.


Lilly Ledbetter Fair Pay Act Heads Towards Final Senate Passage After Cloture Vote

On January 15, 2008, the new Senate voted for cloture on the Lilly Ledbetter Fair Pay Act (S. 181, H.R. 11) by a 72-23 margin. This legislation, which would reverse the Supreme Court’s controversial Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) decision, passed the House on January 9 by a 247-171 margin and is expected easily to win final passage in the Senate on Friday, January 16. Although Republicans were able to turn back identical legislation on cloture by three votes in July 2007, Democratic gains in the recent election gave S. 181 the supermajority support necessary to defeat a filibuster attempt. 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. 

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 v. Goodyear Tire & Rubber Co. decision.

Even though the House recently also passed the provisions of the Lilly Ledbetter Fair Pay Act as an amendment to the Paycheck Fairness Act (H.R. 12) - another initiative intended to address discriminatory gender-based pay disparities - the Senate will bring S. 181 to a vote as stand-alone legislation. Sen. Hillary Clinton (D-NY) introduced the Senate version of the stand-alone Paycheck Fairness Act (S. 182) on January 8.

President-Elect Obama campaigned in favor of the Lilly Ledbetter Fair Pay Act and is expected to sign the bill into law shortly after his inauguration.