Core Provisions: This legislation would amend the Fair Labor Standards Act to increase the penalties for child labor violations. The penalty for a violation would be raised from $11,000 to $50,000 per employee, and from $50,000 to $100,000 for each violation that causes the death or serious injury of an employee under the age of 18.

Status: Rep. Braley (D-IA) introduced H.R. 6861 on September 10, 2008, and it was referred to the House Committee on Education and Labor.

Core Provisions: The CARE Act would amend the Fair Labor Standards Act (”FLSA”) to (1) narrow the exemption for agricultural work to the employment of children working on their families’ farms; (2) increase civil penalties for child labor violations; (3) impose special criminal penalties for aggravated child labor violations; (4) require the Secretary of Labor to gather and analyze data on work-related injuries to children employed in agriculture; (5) impose additional employer reporting requirements for work-related injuries for employees who are minors; and (6) incorporate a pesticide-related worker protection standard.

Status: Rep. Roybal-Allard (D-CA) introduced H.R. 2674 on June 12, 2007, and it was referred to the House Committee on Education and Labor.  The legislation was referred to the Workforce Protections Subcommittee on July 24, 2007.

On July 24, 2008, following an afternoon markup session, the House Committee on Education and Labor passed an amended version of the Paycheck Fairness Act (H.R. 1338) out of committee by a vote of 26 to 17, thus advancing the bill to the House floor. In an attempt to address ongoing pay disparities by gender, the Paycheck Fairness Act 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. Under the Paycheck Fairness Act, the “bona-fide factor” defense would no longer be valid where the employee could demonstrate an alternative employment practice that served the same business purpose without producing wage differences.

The Committee passed the amendment proposed by Committee Chairman Miller (D-CA), which was a substitute version of the legislation. Miller’s amended version is similar to the original, but addresses some employer concerns by clarifying that employees would only be deemed to work in the same “establishment” for purposes of proving a pay disparity if the employees “work for the same employer at workplaces located in the same county or similar political subdivision of a State.” The amended bill also clarifies that the provision protecting employees from employer retaliation would not apply to employees with access to wage information by virtue of their job duties who disclose other employees’ wages, unless the disclosure is in response to a complaint or charge or in furtherance of an investigation. Where the original legislation appropriated “such sums as may be necessary,” the version passed by the committee would authorize a $15 million appropriation.

Several proposed amendments failed to pass, including two amendments by Rep. Price (R-GA), which would have made implementation of the Act contingent upon a 90-day study by the Department of Labor on whether the bill would hinder recruitment and hiring, and limited reasonable attorney’s fees under the act to $2,000 per hour. Several proposed amendments were ruled non-germane by Chairman Miller. These included an amendment proposed by Rep. McMorris Rodgers (R-WA) mirroring her proposed Family-Friendly Workplace Act (H.R. 6025), and an amendment proposed by Rep. McKeon (R-CA) requiring a study on how rising energy costs exacerbate the impact of wage disparities for American families.

The recent enactment of the Genetic Information Non-Discrimination Act (H.R. 493), which passed both houses of Congress by overwhelming margins and was signed by President Bush on May 21, 2008, also included separate provisions increasing penalties against employers who violate child labor laws. These provisions, which amended the Fair Labor Standards Act (”FLSA”), increased the penalty from $11,000 to $50,000 for each FLSA violation leading to the serious injury or death of a child worker. Further, the increased fines are subject to doubling for repeated or willful violations.

Prior to their inclusion in the Genetic Information Non-Discrimination Act, the child labor provisions were contained in H.R.2637, a bill introduced by Rep. Lynn Woolsey (D-CA) and passed by the House via voice vote in June 2007.

Core Provisions: This act would amend the Fair Labor Standards Act (FLSA) to strengthen enforcement and penalties of employers who misclassify employees as independent contractors. The bill would impose a maximum fine of $10,000 per violation for an employer who “repeatedly or willfully” failed to accurately classify a worker. Where an employer’s misclassification accompanied violations under the FLSA’s maximum hours or minimum wage requirements, a worker could recover double his or her liquidated damages.

An employer would also have to keep records of workers’ employment classification and notify those classified as “non-employees” in writing of (1) their classification, (2) that their rights to “wage, hour, and other labor protections” depend upon proper classification, and (3) directing them to the Department of Labor if they suspect they have been misclassified or need further information.

The legislation would require state unemployment insurance agencies to conduct auditing and investigative programs to detect employers that misclassify or fail to properly report compensation to workers with the effect of excluding employees from unemployment compensation coverage. The Secretary of Labor would also ensure that at least 25 percent of the Wage and Hour Division’s audits would focus on potential classification violations, especially in industries with frequent incidence of misclassifying workers.

Status: H.R. 6111 was introduced by Rep. Andrews (D-NJ) on May 21, 2008, and referred to the House Committees on Education and Labor and Ways and Means.

Core Provisions: This act would amend the Fair Labor Standards Act (FLSA) to permit employers to offer employees the choice of receiving paid time off in lieu of overtime wages. The legislation would permit employers to offer paid time off at a rate of one and a half hours of paid leave for each hour of employment for which overtime pay would ordinarily be required. An employee would have to consent in writing to swap paid time off for overtime, and would be able to withdraw their request for the arrangement at any time.

An employer would also have to pay out any accrued time within 30 days upon receipt of an employee’s written request. No employee could accrue more than 160 hours of compensatory time under the bill, and employers could provide monetary compensation for an employee’s unused accrued time in excess of 80 hours at any time after giving 30 days notice.

The legislation would require employers to set a twelve-month schedule and pay out any unused accrued time once a year. Employees agreeing to receive compensatory time off would have to have worked for the employer at least 1,000 hours in the preceding twelve months. An employer could only offer paid time instead of overtime to unionized employees in accordance with a collective bargaining agreement.  Employers offering paid time off for overtime could discontinue the option at any time with 30 days notice to the employees, unless a collective bargaining agreement provided otherwise.

Employers would be required to accommodate reasonable requests by employees to use accrued compensatory time under the arrangement. The bill also prohibits employers from intimidating, threatening, or otherwise interfering with employees’ right to choose to receive either paid time off or overtime wages.   

Status: H.R. 6025 was introduced by Rep. McMorris Rogers (R-WA) on May 13, 2008, and referred to the House Committee on Education and Labor.

Core Provisions:  This bipartisan bill provides incentives to older Americans and employers to encourage the hiring and retention of workers 55 years of age or older.  To combat the anticipated surge of baby boomer retirements which, according to the Senate Special Committee on Aging, could lead to a labor shortage of up to five million workers in a decade, the bill provides tax credits to employers hiring older workers and provides benefits to older workers opting for reduced hours rather than retirement. The bill mitigates reductions in pension and Social Security benefits for older workers who work reduced hours (as opposed to retiring completely).

S. 2933 would establish a new entity within the Labor Department - the National Resource Center on Aging and the Workforce - to cater to older workers.  The bill also provides for representation of older workers on state and local workforce investment boards and mandates that states devote five percent of Workforce Investment Act funds to older workers.

Status: S. 2933 was introduced in the Senate by Sen. Smith (R-OR) on April 29, 2008, and was referred to the Senate Committee on Finance.

Core Provisions: H.R.5804 is intended to make it more difficult for employers to classify workers as independent contractors.  The bill removes the current safe harbor provision in the U.S. Tax Code, which allows employers to avoid paying social security taxes and withholding taxes for employees improperly classified as independent contractors.  Currently, the IRS is prohibited from seeking employment taxes from employers which reasonably classify workers as independent contractors, even when in error.  H.R.5804 removes this safe harbor and would allow the IRS to collect unpaid taxes for misclassified workers.  The bill also increases fines to employers for misclassifications, requires employers to provide information regarding large payments to independent contractors to the IRS, and allows workers to seek an IRS review of their classification status.

Status: H.R. 5804 was introduced in the House by Rep. McDermott (D-WA) on April 15, 2008, and was referred to the House Committee on Ways and Means.

Core Provisions: This bill, patterned off comparable European legislation, would provide employees with a statutory right to request alternate work terms and conditions. It allows qualifying employees to request changes in working hours, schedule, or location. This legislation provides for a detailed interactive process between employees and employers to address employee requests and requires employers to justify denials. The bill contains an anti-retaliation provision and exempts small businesses. The bill’s protections would be enforced by Department of Labor investigations, ALJ hearings, official inquiries, and federal court proceedings.

Status: H.R.4301 introduced by Rep. Maloney (D-NY) on Dec. 6, 2007 and was referred to the Subcommittee on Federal Workforce, Post Office, and the District of Columbia on Dec. 11, 2007. S.2302 was introduced by Sen. Kennedy (D-MA) on Dec. 6, 2007 and referred to the Senate Committee on Health, Education, Labor and Pensions.

Core Provisions: This legislation would increase available benefits for employees and retirees who suffer losses because of their employers’ bankruptcy. This bill would increase the cap on wage claims from $10,000 to $20,000, permit a second claim for up to $20,000 of benefits earned, and remove the requirement that claims must be for wages and benefits earned within 180 days of the bankruptcy filing. It would also create a new priority claim for stock value losses in workers’ pensions, and establish a new priority administrative expense for severance pay owed under workers’ collective severance programs. The legislation would also limit a trustee’s ability to reject or amend collective bargaining agreements.

Status: H.R.3652 was introduced by Rep. Conyers (D-MI) on September 25, 2007, and was referred to the Judiciary Subcommittee on Commercial and Administrative Law on October 12, 2007. Sen. Durbin (D-IL) introduced S.2092 on September 25, 2007, and it was referred to the Judiciary Committee.