Employment Law Legislative Update Third Quarter 2015

Lamar-Sarah-OPTIn her third quarterly legislative update of 2015 for the Society for Human Resource Management (SHRM), HunterMaclean partner Sarah Lamar discusses recent changes in employment law:

Legislation:  Equality Act of 2015 (HR 3185)
Introduced:  7/23/15
Status:  Referred to House Judiciary Subcommittee on the Constitution and Civil Justice
Purpose:  To amend Title VII of the Civil Rights Act of 1964, to prohibit discrimination on the basis of sex, gender identity and sexual orientation.
Comment:  This bill defines “sex” as including sexual stereotyping, sexual orientation, gender identity, pregnancy, childbirth, or a related medical condition. Some of this is already covered by Title VII and the Pregnancy Discrimination Act, either explicitly or implicitly. The bill has a substantial number of Democratic co-sponsors but may not have sufficient support to get through Congress.
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Legislation: Protecting Local Business Opportunity Act (S 2015)
Introduced:  9/9/15
Status: Referred to the Senate Committee on Health, Education, Labor, and Pensions
Purpose:  This bill is the second bill introduced by Senator Lamar Alexander to address a perception among many that, under the Obama Administration, the NLRB has promulgated anti-business/pro-union decisions, often overturning the Board’s own long-standing precedent on a variety of workplace legal issues. Alexander’s first bill, the National Labor Relations Board Reform Act (S 288), was introduced on January 28, 2015.  Among other provisions, S 288 would change the number of members on the Board from 5 to 6 and would require 4 members to constitute a quorum and approve any NLRB determination.
Comment:  S 2015 was introduced less than two weeks after the NLRB issued its Browning-Ferris decision on August 27, 2015 which set forth a new standard for determining whether a business is a “joint-employer” of another business’s employees.  In Browning-Ferris the Board decided that a business’s right to control the performance of employees of another entity was relevant in determining joint employment, regardless of whether the business actually controlled their performance.  If not overturned, this decision could result in a great expansion of which employers must collectively bargain with union representatives, especially in the franchise business model often used in the restaurant, retail and hospitality industries, and in other industries where subcontractors and leased workers are used to perform work.  In this regard, there are dozens of cases currently pending with the NLRB against McDonald’s, the franchisor, in which a key question is whether McDonald’s is a joint employer with its restaurant franchisees and therefore has an obligation to recognize and negotiate with the representatives of the franchisees’ employees about wages, hours and other terms and conditions of employment.
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Legislation: Continuing Appropriations Act of 2016 (HR 719)
Introduced:  2/04/15
Status: Became Law Effective 9/30/15
Purpose:  This law is a stopgap measure to fund the federal government until December 11, 2015.  It became law on the last day of the 2015 fiscal year which ends on September 30th and averted a federal government shutdown. Among other provisions, the law also reauthorized and funded the federal E-Verify program through December 11th.
Comment: There appears to be broad support for E-Verify even though it is not a fool-proof method of confirming an employee’s legal authorization to work in the United States.
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