Before the 111th Congress has even convened, House Majority Leader Steny Hoyer (D-Md.) announced that two employment-related bills will reach the House floor later this week. Both the Paycheck Fairness Act (H.R. 12) and the Lilly Ledbetter Fair Pay Act (H.R. 11) were introduced and easily passed the House during the last Congress, but stalled in the Senate due primarily to Republican opposition and a presidential veto threat. It is noteworthy that both bills are being sent directly to the House floor instead of being vetted through the committee process. In anticipation of a possible Democratic White House in 2009, congressional Democrats in the 110th Congress launched a comprehensive labor and employment law legislative agenda. (For more information, see Littler’s Report Transition to a New (Work) Day: An Initial Look At Workplace Change in the Obama Era). Congressional Democrats intended to vet this agenda in advance so that when the 111th Congress convened on January 6, 2009, these laws could be quickly enacted with the threat of a presidential veto removed. The introduction of the Paycheck Fairness Act and the Lilly Ledbetter Fair Pay Act directly to the House floor is the first installment in the full-implementation of this strategy.
The Paycheck Fairness Act was introduced in the House in 2008 (H.R. 1338) by Rep. Rosa DeLauro (D-Conn.), with a similar measure introduced in 2007 in the Senate by Sen. Hillary Clinton (D-NY), and passed by a vote of 247 to 178 in the House, but failed to survive Senate consideration. The bill that will reach the House floor this week aims to do the following:
- Amend the Fair Labor Standards Act (FLSA) to allow victims of pay discrimination to potentially recover more remedies than those currently provided in the FLSA
- Prevent employers from relying on the “factor other than sex” affirmative defense in wage discrimination cases; instead, employers must additionally prove that such factor is “job related” and serves a “legitimate business purpose.” An employee could rebut this claim by showing that an “alternative employment practice” exists that could achieve the same business purpose
- Eliminate the requirement that employees work in the same establishment for wage comparison purposes
- Entitle employees to unlimited punitive and compensatory damages
- Require the Department of Labor to establish guidelines for employers to use in determining compensation
The biggest impact this bill would have on employers is the loss of the broad “factor other than sex” affirmative defense in wage discrimination cases. Doing so would make it extremely difficult for employers to defend against these types of claims.
Another bill set to hit the House floor would allow plaintiffs to bring discrimination claims impacting their pay years after the alleged discriminatory acts occurred. The Lilly Ledbetter Fair Pay Act (H.R. 2831), introduced by Rep. George Miller (D-Calif.) in 2007, sought to amend many federal civil rights statutes – including the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act – by imposing the “paycheck rule.” Under this rule – expressly rejected by the U.S. Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) – the statute of limitations is reset each time the employee receives his or her paycheck if it can be proved that the compensation decisions generating the pay were discriminatory.
After passing the House in the last Congress, this bill failed by only four votes to gain sufficient support in the Senate to invoke cloture and stave off a Republican filibuster. Now that the Democrats control the Senate, both bills could be passed without much fanfare. Although sending bills straight to the House floor – especially so early in the session – is somewhat unusual, doing so comports with the Democrats’ stated agenda to push through employment- and labor-related bills that have already been vetted by the last Congress. Expect to see more employment legislation that didn’t survive the 110th Congress being fast-tracked in a similar manner in the coming weeks.
Legislation introduced by Reps. George Miller (D-CA) and Lynn Woolsey (D-CA) would freeze the statute of limitations for the recovery of backpay under the Fair Labor Standards Act (FLSA) from the date an employer is notified of an investigation by the Department of Labor’s (DOL) Wage and Hour Divisions (WHD) until the date the Agency informs the employer that the investigation is complete. The Wage Theft Prevention Act (H.R. 3303) was drafted in response to the newly-released Government Accountability Office (GAO) Report (pdf) to the House Committee on Education and Labor on ways to reduce wage theft. The Report recommended, among other things, that the Department of Labor (DOL) needed to improve its investigative process and suspend the statute of limitations to protect workers against the loss of pay while wage and hour investigations are ongoing. This GAO Report was released as a follow-up to an undercover investigation into the WHD’s handling of employee complaints from July 2008 to March 2009. According to a press release, the GAO report found that many wage and hour investigations were inadequately handled and eventually dropped because the statute of limitations was deemed too short and investigations too long. Currently, the statute of limitations for recovery of back wages under the FLSA is 2 years from the date of the violation, or 3 years in the event of a willful violation. According to Miller, “[t]his bill will hold those responsible for stealing workers’ wages by helping to ensure that legitimate complaints can be properly investigated.”