POWADA. On May 21, the House Committee on
Education and Labor held a hearing on the "Protecting Older Workers Against Discrimination
Act" (POWADA, H.R. 1230, S. 485). In a
nutshell, this bill would reverse the Supreme Court's
Gross decision concerning so-called "mixed
motive" cases in which the Court held that the Age
Discrimination in Employment Act has a "but for"
standard which requires a plaintiff to show that age was the
motivating factor in the employer's decision in question as
opposed to merely a motivating factor, i.e. one of many. The basic
justification for this change is that Title VII of the 1964 Civil
Rights Act takes a different approach in these "mixed
motive" cases by providing that if a plaintiff shows that an
improper factor was a factor in the decision, the plaintiff can
prevail even if that factor was not the primary one driving the
employer's decision in the underlying personnel action.
However, remedies in such a case are limited to injunctive relief
and attorney's fees. This structure was enacted through the
1991 Civil Rights Act amendments to Title VII, and proponents of
POWADA argue they are simply asking for equivalent treatment for
older workers. Similar changes are made to the Americans with
Disabilities Act and the Rehabilitation Act. Further, this
mixed motive analysis would also be applied to retaliation
cases. The bill, which has bipartisan support, is strongly
supported by the AARP. Stay tuned for further
developments as the business community develops its position.
Equality Act. On May 17, the House passed
the Equality Act (H.R. 5), 236-173, with 8
Republicans in support. As previously reported, this bill
would amend a number of civil rights laws by adding sexual
orientation and gender identity as additional protected
categories. Its precursor in the employment area was the
Employment Non-Discrimination Act (ENDA), although ENDA contains a
number of limiting provisions not found in the employment
provisions of the Equality Act. The bill is broadly supported
by the business community but has a very uncertain future in the
Senate where it would have to be marked up by the Senate Judiciary
Committee. Opposition to the bill is not focused on the
employment area but rather on its potential effects on private
areas such as bathrooms and dressing rooms, male and female gender
separations in sports, and religious freedom. Notably, three
cases raising the question of whether Title VII of the 1964 Civil
Rights Act covers sexual orientation and/or transgender workers in
employment have been recently teed up for the Supreme Court to
decide.
Colorado Enacts Tough Pay Equity Law. This
week, Colorado Governor Polis signed one of the most demanding pay
equity laws in the nation. Colorado will require employers to
provide all employees simultaneous notification of job
opportunities and mandates inclusion of the applicable pay
scale on all job postings. The Equal Pay for Equal Work Act
also includes a salary history ban, applies based on gender
identity, and provides for liquidated damages for successful
claims. There is a partial safe harbor provision for
employers who conduct pay analyses. For more on the
law, which applies to all employers employing any employees in
Colorado and goes into effect January 1, 2021, see Seyfarth's
Client Alert.
DOL's Spring 2019 Agenda Released.
Twice a year, the Executive Branch prepares the Unified Agenda and
Regulatory Plan, known less formally as the "Reg
Agenda." This year, the Trump Administration released
its Spring 2019 Reg Agenda, in which it details its regulatory
priorities for the near term, as well as long-term actions.
The Department of Labor's Reg Agenda contains many familiar faces:
apprenticeships, the H-visa programs, joint employment, the
overtime salary threshold increase, tipped employee regulations,
and a wide variety of OSHA initiatives make repeat appearances on
the agenda. The Department's long-term action list—which identifies regulatory
matters for which the Department does not have specific regulatory
actions planned in the next 12 months -- contains a number of new
initiatives, including proposed changes to several key Wage &
Hour Division regulations: fluctuating workweek, section
7(i)/commissioned employees, and section 3(m) treatment of board,
lodging, and "other facilities" as wages. The
latter two provisions have not been meaningfully addressed in more
than 40 years.
NLRB Stalling Out on Joint Employment? The
NLRB's long-term agenda includes its rulemaking on
joint employment — with the timing of a next action listed as
"to be determined" — as well as its anticipated
revisions to representation case rules. Apparently jumping to
the front of the active Reg Agenda line are the Board's proposed
rule on whether students who perform services at a private college
or university in connection with their studies are
"employees" under the NLRA and its proposed rule on
access to an employer's private property. Both proposals
are expected in September 2019.
EEOC Plans Wellness Regs for December. The lack
of a quorum has hindered the EEOC for a couple of years now.
Its current agenda includes a number of procedural
and technical proposals, as well as a few related to government
employees. And, of course, the EEOC continues to list on its
agenda amendments to the ADA and GINA regulations related to
incentives and employer-sponsored wellness plans. In August 2017,
the EEOC was ordered--in litigation that is still pending-- to
reconsider its previous iteration of the regulations. The target
date for a new proposal is December 2019, a slight delay from the
last anticipated date of June 2019, but one which was necessary due
to the lack of a quorum of commissioners.
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