The Audacity of 2010

Companies that have had to scale back operations or even close facilities are likely familiar with the Worker Adjustment and Retraining Notification Act (WARN). The WARN Act requires employers to provide 60 days notice before an employee is going to lose his or her job due to a mass layoff or plant closing. To the extent employers fail to provide 60 days advanced notice, the employer is responsible for paying the laid-off employee for any working days short of the 60-day notice requirement. The purpose of the Act was to allow employees time to find another job.

The Forewarn Act (S.1374, H.R.3042) would amend the WARN Act to lower the threshold of coverage from 100 employees to 75, lower the number of affected employees for what constitutes a “mass layoff,” increase the advance notice from 60 to 90 days and increase penalties for violations. The proposed law would also expand the type of information that must be put in the written notice to employees. The notice would be required to detail the effects of the plant shutdown or mass layoff and include information regarding benefits and services, such as unemployment compensation, trade adjustment assistance, COBRA benefits and on-site access to rapid response teams, among others.

Given the massive layoffs over the past two years and the resulting high unemployment rate, which is likely to persist through economic recovery, it is easy to see why this law would garner public sympathy. However, as businesses familiar with the requirements of the current WARN Act know, in uncertain economic times, it can be difficult to predict what will happen 60 or 90 days out. In late June, the Forewarn Act was referred to committee in both the House and Senate.

Next on the list is the ENDA (S.1584, H.R. 3017), which would prohibit employment discrimination based on sexual orientation and gender identity. ENDA defines “gender identity” as the gender-related identity, appearance, mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth. Title VII of the Civil Rights Act of 1964 currently protects against employment discrimination based on race, color, religion, sex or national origin. ENDA would be consistent with 21 states, which already prohibit employment discrimination based on sexual orientation and 12 states that prohibit employment discrimination based on gender identity.

Unlike claims under Title VII that allow for claims based on disparate treatment (i.e., a woman is paid less than a man based on her gender) and disparate impact (i.e., company policy leads to fewer promotions for African-Americans than Caucasians), ENDA would not allow for disparate impact claims.

While this proposed legislation may appear to be a significant change that would require changes to employer policies, a significant portion of the discrimination that is experienced by gay, lesbian, bisexual and/or transgendered employees is based on gender stereotypes (i.e., a male employee doesn't act “manly enough” or a female employee doesn't appear “lady like”). This type of gender stereotyping is already prohibited as a form of gender discrimination. Manufacturers and distributors should ensure their policies prevent gender stereotyping, whether ENDA becomes law or not.

In September, the House Education and Labor Committee held hearings on ENDA, and in early November, hearings were held by the Senate Committee on Health, Education, Labor and Pensions.

Thirdly, the PFA (H.R.12, S.182), which passed the House of Representatives, would amend the Equal Pay Act (EPA) to prohibit retaliation against employees for sharing salary information with co-workers, expand damages under the EPA and place the burden on the employer to prove that any pay disparity is job related and consistent with business necessity instead of based on gender.

And, finally, the EFCA, which has been introduced but not yet voted on, essentially eases the burden for unions to organize and ratify the first collective bargaining agreement after the union is in place. It also creates civil fines for employers that violate the National Labor Relations Act.