Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

President Obama has named U.S. Solicitor General Elena Kagan as his pick to replace retiring Justice John Paul Stevens to the U.S. Supreme Court. If confirmed, Kagan will be the third woman to preside over the nine-justice Court, and only the fourth woman to ever serve on the bench. A Democrat, Kagan is considered to be more moderate than Justice Sonia Sotomayor, Obama’s last nominee to the Court. Additionally, because Kagan was never a judge, she has no judicial track record to scrutinize during future confirmation hearings, and thus could be considered a “safer” pick. Also, unlike Sotomayor, Kagan does not have a history of opinions in labor and employment matters, as her academic career and writings focused primarily on matters of administrative and constitutional law. Although Kagan’s confirmation is not a sure bet by any means, the Senate’s 61-31 confirmation of her as Solicitor General last year indicates that she enjoys some measure of bipartisan support.

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President Obama has issued a proclamation establishing April 20 as “National Equal Pay Day.” This day is meant to symbolize “the day when an average American woman's earnings finally match what an average American man earned in the past year.” In a statement supporting Equal Pay Day, Labor Secretary Hilda Solis called for passage of the Paycheck Fairness Act (H.R. 12, S. 182), legislation that cleared the House of Representatives “and is gaining momentum in the Senate.” This measure would expand damages under the Equal Pay Act of 1963 to include potentially unlimited compensatory and punitive awards. In addition, it would amend the broad affirmative defense previously available to employers that the pay differential in question is caused by a factor other than sex. The bill would also eliminate the “establishment” requirement that employees must work in the same place of employment for wage comparison purposes.

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Today President Obama outlined his plan to promote the growth of small businesses as a way to stimulate the economy and reduce unemployment. During his State of the Union Address, Obama proposed using $30 billion repaid funds that financial institutions received through the Troubled Asset Relief Program (TARP) to increase the ability of small businesses to obtain loans. In addition, he called for tax incentives for businesses to invest in new plants and equipment, and the elimination of capital gains taxes on small business investment. 

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This morning, President Obama unveiled a $3.8 trillion budget for fiscal year 2011, (pdf) $14 billion of which is allocated to the Department of Labor (DOL). As expected, much of these funds are directed to the DOL’s labor and employment law enforcement efforts. According to a fact sheet, the budget provides $25 million and 100 additional enforcement personnel for the DOL, in conjunction with the Treasury Department, to identify and penalize employers who improperly classify employees as independent contractors. In addition, $1.7 billion – a $67 million increase – will be given to the DOL’s worker protection agencies for enforcement purposes, reflecting a shift in resources towards greater enforcement. The Occupational Safety and Health Administration (OSHA) will be provided $573 million, an increase of $14 million, to be used, among other things, to hire or transfer an additional 60 enforcement members to its staff, and conduct 9 percent more inspections. An additional $7 million will be provided to the Employee Benefits Security Administration (EBSA) to hire more benefits advisors and research staff.

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Littler is happy to introduce Ilyse Schuman as the newest member of the Firm’s Government Affairs team. Schuman is a shareholder in Littler’s Washington, D.C. office, where she heads up the Firm’s newly-formed Government Affairs practice and serves as main contributor to this blog. A veteran congressional staffer and policy advisor, she brings a wealth of Capitol Hill knowledge and experience to her new roles. We look forward to her insights as the landscape in Washington, D.C. continues to evolve for employers.

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