by Jackson Lewis

The leadership of both the U. S. House of Representatives and the Senate will swing to the Democrats, and it is widely anticipated that among their top priorities are a number of legislative initiatives affecting employers and employees. These initiatives likely will be spearheaded by the new Speaker of the House Nancy Pelosi; by Senator Edward Kennedy as Chairman of the Senate Health, Education, Labor, and Pensions Committee; by Representative George Miller as head of the House Education and Workforce Committee; by Representative Sheila Jackson-Lee as head of the House Immigration Subcommittee; and by Representative John Conyers as head of the House Judiciary Committee, among others.

INCREASING THE MINIMUM WAGE:

At the top of the agenda is legislation to increase the federal minimum wage for the first time since 1996. One current proposal is for a total increase of $2.10 per hour from $5.15 to $7.25, in three steps over two years. House Speaker Pelosi and Chairman Miller, the proposal's biggest proponents, have promised that minimum wage legislation will go directly to the House floor within the first week of the new session and passage by the House is expected soon thereafter (a similar proposal was passed by the House prior to the August 2006 recess). However, even with the change in control in the Senate, Democrats will need some Republican support to pass the bill there. Although a few Senate Democrats, including Senator Kennedy and Senator Charles Schumer, have indicated they want a "clean" wage bill, others have indicated they are willing to add targeted tax credits to small businesses to obtain the necessary Republican votes.

IMMIGRATION REFORM:

Representatives Jackson-Lee and Conyers both have long track records supporting immigrant rights, and as they assume leadership of their committees, detailed proposals for comprehensive immigration reform are expected. Such proposals could include an increase in visa numbers for the H-1b visa category, creation of guest worker programs, creation of a new visa category for nurses, and increased civil penalties on employer sanctions enforcement.

EMPLOYEE FREE CHOICE ACT:

Under current law, employer recognition of a union is voluntary and employers presented with signed union authorization cards can require a secret ballot election supervised by the National Labor Relations Board. This Act would effectively eliminate the secret ballot process and require the Labor Board to certify a union when a majority of workers have signed authorization cards. The Act also would increase penalties against employers for engaging in unfair labor practices when employees are attempting to organize.

EXPANSION OF FAMILY AND MEDICAL LEAVE ACT:

The new leadership may push a number of bills previously introduced in both the House and Senate. These bills seek to expand coverage by, for example, lowering the coverage threshold from 50 to 25 employees. The Department of Labor is also seeking comments on possible regulatory changes.

REMOVAL OF TITLE VII DAMAGES CAP:

The Civil Rights Act of 1991 established a cap on the amount of compensatory and punitive damages that are available for violations of TitleVII of the Civil Rights Act of 1964. A top priority of Senator Kennedy is repealing this cap so that plaintiffs in discrimination lawsuits would not be limited by a damages cap.

PROHIBITING DISCRIMINATION BASED ON GENETIC INFORMATION:

In the past two congresses, the Senate has passed legislation that bars discrimination based on genetic information in health insurance and employment, and that regulates the use of such information. While the House previously has blocked such legislation, enactment is a definite possibility during this session.

PROHIBITING DISCRIMINATION BASED ON SEXUAL ORIENTATION:

In 2002, the Employment Non-Discrimination Act, which would bar employment discrimination based on sexual orientation under federal law, passed the Senate HELP Committee. Neither the full Senate nor the House further considered such legislation at the time, but it is likely to return in the upcoming session.

MODIFICATIONS TO THE AMERICANS WITH DISABILITIES ACT:

The leadership may choose to push legislation that would limit employers ability to argue that employees are not disabled within the meaning of the ADA. Under this legislation, the focus would be whether an individual with an impairment was subject to discrimination.

In-house counsel and human resource executives should closely monitor these and other developments, including potential legislation mandating paid sick leave benefits.