To get around this problem, House Democrats are reportedly going to approve a package of changes to the Senate legislation in a budget reconciliation bill. The Senate would then be able to pass the reconciliation bill by a simple majority vote instead of the 60 votes needed to overcome a Republican filibuster. Since the Democrats will be using the reconciliation process, however, all provisions in the “fixes” bill must be related to the budget and meet certain requirements for reducing future deficits.

Many have predicted that the House will vote on the package of fixes this weekend. We will continue to keep you updated on its status and will report on the package of fixes and how it affects employers when it is released.
Also, you can keep up with the latest legal changes affecting employer benefits and trends in employee benefits with the Benefits and Compensation Law Alert and Benefits and Compensation Law for Nonprofits.

The new legislation is a follow-up to the Temporary Extension Act of 2010 (H.R. 4691), which President Barack Obama signed into law at the beginning of March. This previous legislation extended the federal COBRA subsidy to individuals who are involuntarily terminated between March 1, 2010, and March 31, 2010.

Similar to the Temporary Extension Act of 2010, the new legislation would also allow certain individuals who initially lost group health coverage because of a reduction in hours and were then terminated after the legislation was enacted to receive the subsidy.

Either the U.S. House of Representatives will have to take up the Senate bill or members of both houses will have to meet to work out a compromise regarding the legislation. We will continue to keep you updated on the bill’s status.

Also, you can keep up with the latest legal changes affecting employer benefits and trends in employee benefits with the Benefits and Compensation Law Alert and Benefits and Compensation Law for Nonprofits.

During his testimony, Chairman Ishimaru focused on the importance of the Act’s pay data provisions, noting that the EEOC currently has no way of knowing about private-sector pay information because employees keep that information private and are often told not to talk about it. He noted that the Paycheck Fairness Act would give the EEOC better tools to help employees, while also providing data standards that would assist employers. (For a written statement from Chairman Ishimaru, visit http://www.eeoc.gov/eeoc/events/ishimaru_paycheck_fairness.cfm)

Senator Johnny Isakson (R-Georgia) expressed concern over the Act’s provisions allowing prevailing plaintiffs to recover compensatory and punitive damages. (The Equal Pay Act currently provides only back-pay awards and liquidated damages.) Senator Isakson questioned whether the bill could have the unintended consequence of actually lessening pay for performance by forcing employers to operate their businesses more defensively in anticipation of possibly baseless litigation.

Jane McFetridge, a partner with the Chicago, Illinois, firm Jackson Lewis LLP, delivered the sole opposing testimony. She elaborated further on Senator Isakson’s concerns, arguing that the Paycheck Fairness Act would negatively affect businesses and the women who work for them. McFetridge noted that the Act’s proposed regulatory scheme is similar to that of California, a state that, in her professional experience, many employers have made affirmative decisions to avoid because of the high cost of doing business and extensive legal liability there.

McFetridge specifically expressed concerns over the Act’s failure to include damages caps, which would protect small businesses from potentially crippling penalties. She also noted that small businesses would be adversely affected by the Act’s tightening of the employer affirmative defense (specifically requiring employers to show that a pay differential is caused by a bona fide factor other than sex, is related to job performance, and is consistent with business necessity). She argued that these employers may not have an HR professional, let alone in-house counsel, available to demonstrate a basis for every wage decision made in a company, even though the decisions may have been made for legitimate nondiscriminatory reasons.

The hearing suggests that the Act, which passed the U.S. House in July 2008, will now see further activity in the Senate. We’ll keep you posted on its progress.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination

The Paycheck Fairness Act (S. 182; H.R. 11) was sponsored before the Senate in January 2009 by then-Senator Hillary Clinton and Representative Rosa DeLauro. Representative DeLauro will appear as a witness before the HELP Committee during the first panel of Thursday’s hearing.

The Paycheck Fairness Act, which passed the House in July 2008, would expand damages under the Equal Pay Act (EPA), allowing prevailing employees to recover compensatory and punitive damages for gender-based pay discrimination. The Act would also amend the Equal Pay Act to prohibit employers from retaliating against employees who share salary information with their coworkers.

The Paycheck Fairness Act would also tighten the requirements for employers’ “affirmative defense” to gender-based pay discrimination. Currently, an employer may assert an affirmative defense that there is a pay differential between female and male employees for equal work but that the differential is based on a factor other than sex. The Act would require the employer to prove that the differential is truly caused by something other than sex and that it is related to job performance.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination

Late Thursday, the Indiana Legislature passed, with overwhelming support, a bill prohibiting employers from keeping employees’ legally-possessed firearms off their property, so long as the firearms are kept out of sight in a locked vehicle.

The bill, which mirrors laws in 12 states and was supported by the National Rifle Association, now awaits Governor Mitch Daniels’ signature. Although the proposed law would not prevent employers from banning firearms inside the workplace, employers still must reexamine their policies and practices regarding firearms on their property. Significantly, the bill also authorizes individual lawsuits against employers that fail to comply with the law.

Governor Daniels now has 10 days to sign or veto the bill. Given the exceedingly strong support it received (House 75-20; Senate 41-9), it seems likely he will sign the bill into law, and it would become effective on July 1, 2010. If so, then employers must comply with its provisions unless they are an exempt institution — schools and colleges, child care centers, group homes, and domestic violence shelters, among others.

Otherwise, employers must revise their current policies regarding firearms if those policies aren’t consistent with the law, or they face the possibility of legal action. Indeed, the law allows a court to order an employer to comply with the law, and employees can recover actual damages, attorneys’ fees, and costs. With these remedies available, plaintiffs’ attorneys will have an incentive to file lawsuits.

If the Governor signs the bill, property rights advocates and other opponents may challenge it in court. Unless it is overturned by a court or later changed by the Legislature, employers must respond to these restrictions and modify policies and practices that generally prohibit firearms on employer property.

An update will be provided in the next issue of Indiana Employment Law Letter when the Governor acts on the bill.

David Wagner, Mitzi Martin, and Susan Kline are attorneys with Baker & Daniels in Indianapolis, which writes and edits the monthly Indiana Employment Law Letter . You can find more information about state gun laws affecting employers in 50 Employment Laws in 50 States.

The EEOC’s suit claimed that Wal-Mart’s London, Kentucky, distribution center denied jobs to female applicants from 1998 through February 2005. During that time, the EEOC claims the employer regularly hired male entry-level applicants for warehouse positions but excluded female applicants who were equally or better qualified. The EEOC alleged that Wal-Mart regularly used gender stereotypes in filling entry-level order filler jobs. Hiring officials told applicants that order-filling positions weren’t suitable for women and that they hired mainly 18- to 25-year-old males.

The settlement requires Wal-Mart to provide order filler jobs, as they become available, to eligible and interested female class members as determined by a claims administrator. Wal-Mart will fill the first 50 available order filler positions with female class members. For the next 50 positions, female class members will be offered every other job. Thereafter, every third position will be offered to female class members.

The settlement is thought to be the largest ever against Wal-Mart in a single discrimination suit, according to a report in The Lexington (Kentucky) Herald-Leader.

A statement from Wal-Mart said the EEOC filed the complaint on August 24, 2001, on behalf of former Wal-Mart associate Janice Smith, who had sought a transfer to the distribution center. The EEOC later added other women to the suit.

The company issued a statement saying it’s “pleased that this matter has been resolved.” It also said the case doesn’t reflect the company’s “continuing commitment to build an even more diverse and inclusive workplace through hiring and training initiatives.”

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination

On Tuesday, March 2, U.S. Immigration and Customs Enforcement (ICE) announced that it had sent 180 notices of inspections (NOIs) to employers in Tennessee, Alabama, Arkansas, Louisiana, and Mississippi.

At least 30 NOIs have been sent to employers in Tennessee and another 30 or so to employers located in southern and central Alabama. ICE has not yet disclosed the targeted employers’ names.

NOIs notify employers that ICE will be inspecting their employment verification records to determine whether they are complying with all employment eligibility verification laws and regulations. Also, the notices are accompanied by subpoenas requiring employers to provide a long list of documents such as:

• a list of current and terminated employees with hired and termination dates, names, social security numbers, and dates of birth;
• quarterly wage and hour reports and/or payroll data for all employees covering the period of inspection;
• quarterly tax statements; and
• all correspondence with the Social Security Administration, including “no-match” letters.

Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. In July 2009, ICE sent similar notices to 652 businesses nationwide. And an additional 1,000 NOIs were sent to employers associated with critical infrastructure in November.

There is no doubt that ICE is making a renewed effort to focus on holding employers accountable for their hiring practices. We expect more NOIs to be issued in the near future. We encourage employers to conduct internal I-9 audits and put their internal immigration compliance programs in order.

Hector Chichoni practices U.S. and global immigration law with Epstein Becker & Green, P.C., in Miami, Florida. He can be reached at (305) 579-3270.

Cochran was a model on the show from July 2002 through late February 2010 when she was fired. She is suing CBS and the show’s producer Freemantle Media claiming discrimination based on pregnancy, retaliation for complaining about discrimination and harassment, wrongful termination, breach of contract, privacy violations, and fraud.

The report in The Wrap quotes the lawsuit as saying that producers “discriminated against, harassed, and retaliated against Cochran, including making remarks about her pregnancy, her appearance, her weight, and her eating habits.”

Cochran also claims she witnessed the harassment of two other models because they also became pregnant.

The latest suit isn’t the first by one of the show’s models. Dian Parkinson, who left the show in 1993, filed suit claiming sexual harassment by former host Bob Barker. She withdrew the suit in 1995. Barker later sued another model, Holly Hallstrom, for slander and libel, claiming she said she was fired for not taking Barker’s side in the dispute with Parkinson. She countersued claiming wrongful termination. Reports claimed she actually was terminated because she gained weight because of medical treatments. She ended up winning a large settlement. Two other models also won out-of-court settlements after claiming wrongful termination, according to The Wrap.

Of course, it’s not just game show producers that find themselves defending against pregnancy discrimination suits. A report released in October 2008 from the National Partnership for Women & Families said working women in the United States filed 65 percent more complaints of pregnancy discrimination with the Equal Employment Opportunity Commission (EEOC) in 2007 than they filed in 1992. The report coincided with the 30th anniversary of the Pregnancy Discrimination Act, enacted on October 31, 1978.

The study found that race and ethnicity appeared to be important factors in the rise of pregnancy discrimination complaints. From fiscal year 1996 to fiscal year 2005, claims filed by women of color jumped 76 percent, while claims overall increased by 25 percent.

More than half the claims filed with the EEOC during the 1996-2005 period (53 percent) were filed in service, retail trade and the financial services, insurance, and real estate industries.

The new legislation extends the subsidy to individuals who are involuntarily terminated between March 1, 2010, and March 31, 2010. Since the last COBRA subsidy extension period ended February 28, 2010, this extension applies retroactively (i.e., to March 1 and 2). The legislation also includes a provision that allows certain individuals who initially lost group health coverage because of a reduction in hours and were then terminated after the legislation was enacted to receive the subsidy.

Congress is also considering legislation that would further extend the COBRA subsidy to the end of the year.

Also, you can keep up with the latest legal changes affecting employer benefits and trends in employee benefits with the Benefits and Compensation Law Alert and Benefits and Compensation Law for Nonprofits.

Areas of Disagreement
The main area of disagreement between Republicans and Democrats is where health care reform should go from this point. Republicans urged Democrats to scrap the current bills and start over from scratch. The Democrats were adamant in their defense of the current legislation and gave no indication that they would consider starting over.

Among other things, the parties also disagreed about whether:

• current health care reform legislation would cause premium costs to go up or down;
• the government can afford an extensive expansion of insurance coverage to the uninsured right now; and
• the government should mandate that individuals buy insurance.

Areas of Agreement (Sort of)
Even when the two parties agreed on issues, they usually disagreed on the details of how such issues should be addressed. The Democrats and Republicans agreed that the country’s health care system needs to be fixed, but their views on how to fix it are vastly different.

Both parties agreed that insurers need more regulation, but they disagreed on how involved the federal government should be in the regulation. Democrats believe the federal government should regulate insurers, while the Republicans believe states should be the primary regulators.

The two parties also agreed that individuals and small businesses should be able to pool their resources to buy insurance and should be able to buy insurance across state lines. However, Democrats want the federal government to set minimum standards for insurance, and Republicans are opposed to that idea.

Where Reform May Go from Here
After more than six hours of discussions at the summit, it appears that the two parties remain divided over the issue. Obama ended the summit by suggesting that the Democrats may go ahead and try to pass legislation on their own. He noted, “The question that I’m going to ask myself and I ask of all of you is, is there enough serious effort that in a month’s time or a few weeks’ time or six weeks’ time we could actually resolve something?” The President then concluded, “And if we can’t, then I think we’ve got to go ahead and make some decisions, and then that’s what elections are for.”

Based on the Democrats’ statements at the summit and afterward to the media, it appears that Senate Democrats may try to pass a health care reform bill through the reconciliation process. If the Senate uses that method, they would need only 51 votes to pass a measure but would only be able to enact parts of the bill by attaching them to a budget measure.

Also, you can keep up with the latest legal changes affecting employer benefits and trends in employee benefits with the Benefits and Compensation Law Alert and Benefits and Compensation Law for Nonprofits.