The election this year feels like its taking three years. The election isn’t until November. Local candidates haven’t started their barrage of messages on TV and in the papers yet. Oh, my. I really try to maintain a high interest level in what the candidates have to say, but sometimes, I must admit, I just have to tune it out. However, I have no choice but to pay attention to the new legislation that they all come up with. Often, the targets affect how human resources people do their jobs. This long election year is no different.
Changes in storeSens. Hilary Clinton, D-N.Y., Ted Kennedy, D-Mass. and Barack Obama, D-Ill., have proposed a revision of the Civil Rights Act, calling it the Civil Rights Act of 2008. Each of the proposals results in more liability to employers, potentially higher stakes and risks to employers, and even more documentation.
One revision proposes harsher penalties for violations of the Equal Pay Act. It also institutes stronger standards for employers. Employers would have to prove that a pay differential is the result of a factor other than sex and is related to job performance. The difference must be documented and relate to education, training or experience. Human resource managers would essentially have to second guess themselves to make sure the letter of the law is being followed, or wind up with those bigger penalties. Currently, the Fair Labor Standards Act allows for back pay as a remedy for an employee subjected to underpayment of wages. A proposed revision would add compensatory and punitive damages, and double the penalties if the underpayment is found to have been intentional and not in “good faith.” This revision also makes it easier for employees who win a pay discrimination case to recover some legal expenses from their employers, such as the cost of providing expert witnesses. While the demand that supervisors and managers document decisions is always great, this increases that need. The employer who chooses to fight the case in court faces higher risks, as well.
Goodyear Tire and Rubber Company’s court case versus Lilly Ledbetter and the resultant Supreme Court decision might have something to do with some of the proposed revisions. The Court decided that plaintiffs bringing Title VII pay discrimination cases must file with the EEOC within 180 days of the adverse pay-setting decision. (It is 300 days in New Jersey, New York, Pennsylvania and other states that have work-sharing agreements with the EEOC). If they don’t file within that time frame, their claim will be barred. The May 29, 2007 decision protects employers who would otherwise be forced to defend “stale” claims, thus saving years of back pay. But, I digress …
There is also a proposed ADA Restoration Act that has been endorsed by over 240 members of the House of Representatives. This Act would redefine “disability,” and by doing so, individuals would no longer need to prove that an impairment substantially limits one or more major life activities. A disability would simply be a physical or mental impairment, a record of a physical or mental impairment, or the state of being regarded as having a physical or mental impairment.
Additionally, the Restoration Act would prohibit courts and employers from considering the effects of medication or devices when determining if an individual is disabled. For instance, if an employee has a disability that is minimized by medication or a medical device, you could no longer take that into account when considering accommodation or if the person is even disabled.
And, finally, the Act would shift the burden of proof from the employee to the employer. It would become incumbent upon the employer to show that an employee is not qualified to perform a job, as opposed to, as it is now, the employee must show that he or she is qualified.
Be heardSince we’re right in the middle of the election marathon, and the legislation is still being studied, we have an opportunity to have a say about it. If you have an example of how the proposed changes would affect a business or in how an employee might be treated, I strongly suggest you contact your representative. Supply a description of a situation you have involving a disabled employee and how that would be affected by the proposed changes. Real-life examples are the best antidote for unwanted legislation.
I once stunned an auditorium full of people by saying that “Not all employees are good and not all employers are bad,” and to continue to make laws based on the opposite premise is a disservice to all. I believe that knee-jerk laws, even those passed with good intentions, are eventually going to put business out of business. A law that is passed or changed in an effort to curry votes or to satisfy a political agenda can’t be a good law.
Have your voice heard, be it for or against the changes. Mine has been.
To contact your representative, go to: https://forms.house.gov/wyr/welcome.shtml. You can easily locate names and even click on a link to send your letter. To contact a Senator, go to: www.senate.gov. The process is simple on this page, too.