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Potential Federal Labor & Employment Legislation on the Horizon for 2010

Employment, Benefits & Labor

Labor and employment legislation is expected to garner significant attention during 2010. All employers should be aware of the following legislative initiatives which may have widespread effects in the workplace:

Employee Free Choice Act (EFCA)

A labor-friendly version of the EFCA may be introduced early this year. This version would likely include no card-check provision, an expedited timetable for elections, and it is expected to permit union organizers to access the workplace.

Paycheck Fairness Act (PFA)

The PFA would amend the Equal Pay Act (EPA) in multiple ways of concern for employers, including permitting the recovery of unlimited compensatory and punitive damages, permitting the filing of opt-out class actions, and narrowing the “any factor other than sex” affirmative defense.

Protecting Older Workers Against Discrimination Act (POWADA)

In response to Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009) [http://www.blankrome.com/index.cfm?contentID=37&itemID=2028], bills were introduced to overrule the Court’s insertion of a “but for” standard for ADEA claims. If passed, POWADA would require that courts apply the “motivating factor” framework to the ADEA and other laws, such as Title VII.

Arbitration Fairness Act of 2009 (AFA)

The AFA would render predispute arbitration agreements in employment and civil rights matters unenforceable.

Employment Non-Discrimination Act (EDNA)

The EDNA would prohibit intentional employment discrimination on the basis of actual or perceived sexual orientation or gender identity, effectively adding sexual orientation as a protected class under Title VII.

If you have any questions regarding these potential legislative actions or the potential legislation’s impact on your organization, please contact a member of Blank Rome LLP’s Employment, Benefits and Labor Practice Group.