2010 Legal Preview
by Jeffrey L. Roth, JD
Calendar year 2010 promises to be a busy year for new legislation. With one party holding a clear majority in Congress, many new pieces of legislation are being introduced at the federal level. It is fair to say that most of new legislation will be for the benefit of employees and in many cases will increase the cost of doing business, particularly for smaller employers. Some of these proposed bills may affect veterinary practices. Although it is impossible to list every potential piece of proposed legislation that might affect ALVMA members, some of the more prominent bills are included in the following list.
Employee Free Choice Act This legislation modifying the National Labor Relations Act (NLRA) has been pending for most of 2009, and was temporarily derailed as a result of opposition to the "card check" provision of the bill. This provision would mandate union representation of employees if more than 50 percent of employees sign cards authorizing a union to engage in collective bargaining on the employee's behalf, with NO secret ballot election. In addition, it would mandate federal arbitration of terms and conditions of employment on first contracts that would be binding on an employer for two years. Although the "card check" provision of the bill may not survive, the mandatory arbitration provision, enhanced penalties for businesses who engage in unfair labor practices, and other provisions of the bill may still pass in 2010. Most veterinary offices are covered by the NLRA.
Healthy Families Act This legislation would require employers who employ 15 or more employees for each working day during 20 or more workweeks a year, to provide a minimum paid sick leave of: (1) seven days annually for those who work at least 30 hours per week; and (2) a prorated annual amount for those who work less than 30, but at least 20 hours a week, or less than 1,500, but at least 1,000 hours per year. It also allows employees to use such leave to meet their own medical needs or to care for the medical needs of certain family members. Note that the current Family Medical Leave Act applies to employers who have more than 50 employees. Under the current Congress, there are several bills containing mandated benefits for employees that would apply to employers with 15 employees. As such, it is increasingly likely that mandated benefits for employees of smaller businesses will appear in various legislative forms in 2010.
Employment Non-Discrimination Act (ENDA) This bill would prevent employment discrimination against employees based upon sexual orientation or gender identity. It would essentially add to the list of forbidden discrimination, and those protected classes of employees, under Title VII of the Civil Rights Act of 1964, and is modeled on that act. Approximately 22 states have similar laws prohibiting employment discrimination against employees based upon sexual orientation or gender identity; Alabama does not. Like Title VII, this act would apply to employers with 15 or more employees. Although Congressman Barney Frank (D-MA) believed there would be a House vote in 2009 on this legislation, the healthcare debate slowed the progress of this bill, which will certainly come up for a vote again in 2010, and likely pass in some form.
Equal Remedies Act/Civil Rights Act Since 2007, and up to his recent death, Senator Edward Kennedy (D-MA), former chairman of the Senate Committee on Health, Education, Labor and Pensions, introduced legislation to eliminate the $50,000-to-$300,000 caps on compensatory and punitive damages for intentional violations of Title VII of the 1964 Civil Rights Act. Under current law, individuals can sue to recover compensatory and punitive damages for intentional employment discrimination, but only up to certain specified monetary limits. The law limits these types of damages to between $50,000 and $300,000, depending on the size of the employer, for cases in which discrimination is based on race, color, sex, religion, or national origin. Employees who are subject to discrimination because of their race can also sue for damages under 42 U.S.C. § 1981, which has no cap on damages. This legislation would likely increase the number of claims and give an additional incentive to lawyers representing employees to file lawsuits. It would also likely increase the cost of employment liability insurance, which for small businesses, is currently relatively inexpensive.
Arbitration Fairness Act This act would prohibit employee/employer pre-dispute arbitration agreements which might mandate that employees pursue arbitration for employment law claims, including those relating to civil rights, rather than suing in the court system. Many businesses include such a requirement in their dispute resolution processes with their employees to reduce the cost of dispute resolution, limit costs of appeals, and avoid emotional or prejudicial results from juries.
Firearms in the Workplace Although the Alabama legislature did not have time to take up a bill that was proposed in the last session on this topic, it is expected that a new bill will be introduced prohibiting employers from preventing employees from keeping firearms in their vehicles on company premises, if such possession is otherwise in compliance with the law.
Unemployment Tax Also note that due to the high demand on funds from the unemployment compensation tax trust fund, beginning in calendar year 2010, the state's unemployment insurance tax rate will move to its highest level, Schedule D, on January 1. This represents, on the average, an increase of more than 10 percent over 2009 rates.