Preparing for Possible Changes in Employment Laws

The elections are over and it is clear that with the Democrats in charge of the White House and Congress, things are going to change. Whether you celebrate or mourn that fact, if you are a business owner or manager, you need to prepare your business for some of those changes.

There are a number of laws affecting employers that have a good chance of passing after the new government takes office in January. These include:

  • The Employment Nondiscrimination Act, which would amend Title VII to add sexual orientation as a protected class, much like religion, age, national origin, race, disability and gender. President-Elect Obama’s transition team has already added sexual orientation as a protected class in their hiring, along with gender identity.
  • The Fair Pay Act, which will negate a 2007 U.S. Supreme Court decision that substantially crippled the filing of any Equal Pay Act claims by imposing a draconian statute of limitations. The Fair Pay Act would again ensure that women are paid the same rate as a man for performing a job that requires the same skill, effort, responsibility and working conditions.
  • The Healthy Families Act, which will require employers with 15 or more names on the payroll to provide full-time employees with 7 or more days of paid sick leave per year. This would be the first paid leave ever required of employers by the federal government. Obama and Vice-President-Elect Joe Biden cosponsored this bill while they were in the Senate, so passage of this act or a similar one is likely.
  • The Equal Remedies Act and Civil Rights Act, which could remove the current caps on damages in discrimination cases and prohibit the employer from making the employee agree to arbitrate these claims before the dispute arises.
  • The Employee Misclassification Prevention Act, which would raise the penalties for employers who call their employees “contract labor” or “independent contractors” to avoid paying taxes and benefits on their workers.
  • The Occupational Safety and Health Administration is expected begin enforcing ergonomic regulations that were written during the Clinton years. These regulations would affect white-collar workplaces that have seldom had OSHA on their radars at all.

Many other laws affecting employers are expected to be introduced and passed while the Democrats are in power for at least the next two years. That information should light a fire under you to audit your employment practices now to make sure that they are currently compliant and as forward-thinking as possible.

For example, take a look at your pay policies. Are women in your workplace paid less than similarly qualified men? Do you pay anyone on a “contract labor” basis?

Do you shy away from hiring anyone that “seems gay”? Do you fire in haste or anger without clearly documenting all of the nondiscriminatory reasons? Do you rely on an arbitration agreement that you force all of your employees to sign and think that agreement will protect you from a runaway jury?

If you answered any of these questions “yes” or if you suspect any of your other employment practices may be questionable, this is the time to have someone knowledgeable about employment law conduct an audit of your practices and policies to correct the mistakes you are making now and to prepare for the changes to come.

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