Predictions on employment law changes in the Obama administration

2 comments

November 5, 12:57 PM

by Marcia McCormick, Workplace Law Examiner

President-elect Barack Obama looks into the
crowd after his acceptance speech at Grant
Park in Chicago on Tuesday night.
(AP Photo/David Guttenfelder)

The first change that I predict we will see is passage of one of the pieces of legislation related to the time for filing a charge in pay discrimination cases. The Lilly Ledbetter Fair Pay Act of 2007 overturns the effect of the Supreme Court decision in Ledbetter v. Goodyear Tire. Ledbetter proved that several of her supervisors over the course of her career had given her bad evaluations because she was a woman. Those evaluations caused her to be making substantially less than her male colleagues by the end of her career. A jury awarded her backpay and damages. The Supreme Court reversed, holding that those past decisions had occurred too long before Ledbetter began legal proceedings and so could not be brought. She needed to bring charges each time a decision about her rate of pay (not each paycheck) was made even if she didn't know there was any reason to suspect that discrimination had occurred. The Lilly Ledbetter Fair Pay Act of 2007 would redefine when the injury of discriminination occurs--not only with each decision about the rate of pay, so not only at the annual review stage, but also with each act of paying less, so with each paycheck. That would prevent a person from losing the right to challenge this kind of discrimination before she knew she had been discriminated against.

This bill has already passed the House, and is currently in the Senate Judiciary Committee, so it has some traction and momentum. If it doesn't pass this term, it certainly will next with the additional seats the Democrats have picked up in Congress. Additionally, Obama is very likely to sign this into law, since he was a cosponsor of this and another piece of related legislation and since he has made this a central part of his labor platform.

The second change that I predict is passage of the RESPECT Act, another bill designed to overturn the effects of a Supreme Court decision. In NLRB v. Kentucky River, the Supreme Court gave the term "supervisor" a very broad reading, to encompass just about anyone who directs someone else in doing work, whether the "supervisor" had any authority to impose consequences or make decisions about that person. Because the nurses in that case told other health care assistants what to do to take care of patients, they were supervisors. The effect of that decision was to make it significantly harder for people with any level of responsibility in their jobs (other than the bottom level people) to organize and be represented by unions.  The RESPECT Act redefines supervisor to those people who have some control over the terms of others' employment--hiring, firing, discipline, etc.

This bill has been reported out of committee in the House, and is still in committee in the Senate, so it may not have quite the same momentum as the fair pay legislation. Here again, though, Obama is a cosponsor and would likely sign it if it were enacted.

Both of these pieces of legislation are relatively narrow, since they are directed toward individual Supreme Court decisions, unlike some of the other legislation currently pending. That too might make them good candidates.

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