Posted by marykeating on February 6, 2010 under Pending legislation, Unemployment compensation | 
We get occasional glimpses of hope in the economic news, but the unemployment rate remains high. The latest projection I heard projected unemployment remaining above ten percent all year. To deal with the prolonged unemployment of so many workers, the government has extended the maximum weeks of unemployment benefits. It also has increased the unemployment tax payable by employers.
This sets the stage for the classic clash of interests in Annapolis. Some business interests are asking for a reduction of benefits, while others are urging higher weekly benefits and more weeks. An emergency bill is pending this session, and has made it past the first stage. According to the bill, some of the changes to the law are necessary to qualify for the federal stimulus funds.
One of the more employee friendly provisions changes the formula for calculating the weekly unemployment benefit, by looking at the most recent four quarters of pay rates. This provision would help workers who had been earning increased amounts in their fields before becoming unemployed.
In addition, the law provides for extended benefits and training for unemployed workers who have been unemployed for an extended period, and are in a declining occupation, or were laid off in a permanent reduction in force. Employers’s rating experience is not charged for unemployed individuals receiving the additional training benefits.
Posted by marykeating on December 19, 2009 under Government contractors, Pending legislation, sexual harassment |
The Franken Amendment has passed the House and is expected to become law. Under the amendment to next year’s appropriations bill, contractors doing more than $1,000,000 of business with the federal government must agree not to require arbitration, rather than court, claims of discrimination, sexual assault, and other employment claims. Six months after the effective date of the law, the contractors are responsible for ensuring that their own subcontractors with jobs of more than a million dollars also abide by the law.
The amendment forbids mandatory arbitration on the following types of claims:
- any claim under title VII of the Civil Rights Act of 1964, and
- any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.
The law arose out of a horrendous situation involving a woman who was raped and terrorized overseas while working for an American company. The perpetrators worked for an American company, and our government. Her employment contract required her to arbitrate her claims, and limited her remedies. Senator Franken’s amendment forbids companies from imposing this waiver of rights on people working as employees or independent contractors on major goverment contracts.
Posted by marykeating on December 2, 2009 under Employment benefit issues, Pending legislation |
The discussion about health care reform has increased awareness of the high cost of health insurance for people who are not in a group plan. While employed and in an employer-sponsored plan, an employee usually gets a reasonable plan for a pretty reasonable price, or even free, depending on the employer’s policies. But then the job ends, whether voluntarily or not. If the employer has at least 20 employees, the departing employee is entitled to COBRA coverage for 18 months, in most cases.
With unemployment still high, Congress is now thinking about extending the COBRA coverage for six more months, for those people who lost their jobs between April 1 and December 31 of 2009. In addition, even better for some, the COBRA subsidy discussed here would be extended as well. The subsidy has the federal government picking up 65% of the cost of the premium, which is repaid to the employer by a credit on the payroll taxes. If passed, the new law will be called the “Extended COBRA Continuation Protection Act of 2009.”
It’s hard to think of an interest group that would oppose this law, other than those who think that the government is subsidizing the unemployed too much.
Posted by marykeating on November 6, 2009 under Gender orientation discrimination, Pending legislation |
As reported here, the Employment Non-Discrimination Act, or ENDA, is one of the Obama administration’s top priorities. The bill would outlaw discrimination on the basis of gender identity and sexual orientation. Those categories are protected under Maryland law, but not federal law yet. There won’t be action this calendar year. It’s hard to tell whether the defeat of the same sex marriage proposition in Maine will affect prospects of this law.
Posted by marykeating on October 30, 2009 under Employment benefit issues, Pending legislation |
The Secretary of Health and Human Services released a report explaining in very clear language the effect of health insurance reform on the ability of small businesses to offer health insurance. According to HHS’s report, 56,593 small businesses in Maryland alone would qualify for an attractive tax credit. In addition, health insurance reform would end the catastrophe that effects some businesses when insurers hike premium costs as a result of an illness or injury of even a single worker. Small businesses have been rated by their own experience. So when one person of 50 has a serious illness, incurring hospital care, the rates for the business are directly affected. For a huge business, an illness or two does not alter the experience very much, because of the law of averages. But small businesses can be forced into giving up insurance benefits if two people are diagnosed with cancer.
The new law, if it passes, would forbid rating based on health status. In the end, the law of averages across the spectrum of the state or the country will drive insurance prices. In addition, the new law would end the lifetime cap on insurance benefits. This was an issue advocated by the late Christopher Reeve, who would not have made the progress he did without personal resources.
Finally, the law would end the practice of discrimination against women. There are insurance plans that refuse to cover women of child-bearing years, or treat pregnancies as uncovered conditions. (Maryland law is stronger than some states, and does not permit a blanket prohibition against insurance for childbearing.)
The economic hardships that have befallen many employees and businesses have brought some of these issues to the forefront. I hope we have the fortitude to make some much-needed reform to the existing system.
Posted by marykeating on October 8, 2009 under Pending legislation, sexual harassment |
The Senate, with the help of a number of Republicans, passed the Al Franken Amendment (Senate Amend. 2566) to the Defense Appropriations Act yesterday. (No Democrats voted against it.) The amendment would prohibit government funding to defense contractors and subcontractors if they require employees to arbitrate Title VII claims. The bill states that it prohibits the U.S. government from using “funds for any Federal contract with Halliburton Company, KBR, Inc., any of their subsidiaries or affiliates, or any other contracting party if such contractor or a subcontractor at any tier under such contract requires that employees or independent contractors sign mandatory arbitration clauses regarding certain claims.”
The amendment came in reaction to Jamie Leigh Jones, a Halliburton computer technician working in Iraq. She was drugged and raped by her coworkers. She returned to find her court case barred because she had signed an employment agreement requiring arbitration of all disputes. No one was prosecuted, after various parts of her file were inexplicably lost by Halliburton. Ms. Jones told her story on national television, and also accused a state department employee of sexually assaulting her, too (according to the news clip, he admitted doing so). Ms. Jones’ story is not unique, and claims of rape in the military are rampant.
Title VII forbids discrimination on the basis of sex, race, religion, color, and national origin. Sexual harassment, of which rape is an extreme form, is sexual discrimination under Title VII.
Arbitration has become more popular with employers, since it is a private process, there is no appeal, no legal precedents are set, and it affords no jury trial. The fees are often quite high, despite the commonly heard rallying cry of expensive litigation. For a three-person arbitration panel, the parties must pay by the hour for each of their fees to prepare for and hear the case, as well as hefty administrative fees imposed by the American Arbitration Association. By contrast, agencies such as the EEOC and MCHR are free, and court filing fees are low.
Posted by marykeating on August 28, 2009 under Employment benefit issues, Pending legislation |
The Baltimore Sun reported last week on the plight of small employers in the Baltimore area, and the cost of health insurance. Without market power, small businesses have a difficult time providing health insurance to employees. Still, it’s a very popular fringe benefit, and most people believe having health insurance indispensable. That is, until they can’t afford it.
I commented on this last month. Small businesses not only have smaller profit margins, often, but also have less favorable access to affordable health coverage. The new article by Jay Hancock cites this sobering statistic: “in metro Baltimore, … CareFirst and UnitedHealth control nearly 80 percent of the trade. That’s not a market. That’s oligopoly – market failure.” Anecdotally, the article notes that the number of companies offering health insurance for small businesses has diminished, and the rate of increase is in double digits annually, far higher than inflation.
The market conditions create a prescription for failure. I’m dismayed that the public health insurance option appears to be dying in Congress.
Posted by marykeating on August 27, 2009 under Discrimination in employment, Pending legislation |
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) aims to prohibit discrimination against employees who serve or have served in the United States military. One of the problems that the law tried to remedy is a reserve employee’s uncertainty about his or her schedule. Because someone with reserve obligations to the military may be called up with little notice, some employers denied them jobs or promotions. USERRA requires an employer to reinstate an employee after the tour of duty is over, which many employers find difficult to accommodate. The law applies to virtually all employers, without the typical threshold number of employees.
Still, the number of claims in this region is not huge. There are only three cases reported on Westlaw, which does not capture every case but is indicative of the prevalence of the claim. One reason could be the difficulty of proving discrimination in hiring. Proving discrimination at all is seldom easy, but hiring is particularly difficult. In a failure to hire case, the claimant lacks the usual access to coworkers and personal knowledge at the workplace that exists when an employee claims discrimination in a termination. In a recession, it’s even harder, since there are usually multiple applicants for open jobs, and the failure to choose the veteran or the Army Reserve officer can be justified by some ground or other.
Congress is considering a new bill to amend USERRA to provide rights for veterans who have been injured or disabled during their military service. The law would extend health benefit and leave of absence rights to employees receiving treatment for their service-connected disabilities. The law, if passed, would provide that employees may use any accrued sick and vacation leave, do not lose any seniority rights, and have the right to return to their jobs. The House passed the bill, the Wounded Veterans Job Security Act, in June. It is before the Senate now.
Posted by marykeating on August 1, 2009 under Discrimination in employment, Pending legislation |
The Employment Nondiscrimination Act of 2009 has been introduced into Congress by Representative Barney Frank, and a host of cosponsors. The cosponsors include Representatives Elijah Cummings, Chris Van Hollen and Donna Edwards of Maryland. The bill would outlaw employment discrimination based on gender identity, defined as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” In addition, discrimination based on the employee’s actual or perceived sexual orientation, including homosexuality, heterosexuality, or bisexuality, would be prohibited.
The wording of the bill tracks the Civil Rights Act of 1964 pretty closely, so that it applies to employers with at least 15 full-time employees engaged in interstate commerce (nearly every employer qualifies, but there are some exceptions), and state, local and federal government. It prohibits retaliation, using the same language as in the law protecting against race and sex discrimination, and provides for the same enforcement mechanisms by the Equal Employment Opportunity Commission (the EEOC). It is clearly attempting to incorporate the case law of the 1964 law, to avoid a case like the Gross case, in which the Supreme Court made it so difficult to prove age discrimination. (I commented last month on this case. )
The cause of gay rights has been slowly advancing, despite some dramatic setbacks. In the employment arena, though, it is difficult intellectually to separate discrimination based on gender with discrimination based on gender identity, or sexual orientation. In essence, the discriminator is inflicting on certain employees their antiquated attitudes of what a man or woman should be, and should do. In the most barbaric situations, these attitudes dictate that the woman should stay home, or should work and submit to the boss’s sexual advances. In the more subtle (and more commonly seen) instances, the attitudes may be more along the lines of: a woman is less serious about her job; a gay man is constantly desiring all the other men in the office; the senior people should all be athletic married men; the women should dress in a feminine manner and obsess over their appearance. None of these gender stereotypes is related to the ability to perform a job, and they often interfere, in the case of harassment, with the employee’s ability to function.
These similarities notwithstanding, gender equality has taken more root than gender orientation equality, and there are still some areas where rhetoric threatens to derail a perfectly reasonable bill. The pending bill therefore specifically addresses certain societal concerns that are brought up, whether legitimately or as scare tactics, when the question of equality on gender orientation or identity grounds arises. For example, the law would give special exemptions to church-related employers and the military – both still free to discriminate on the grounds of gender orientation. Secondly, the protections of this law cannot be used to argue that an unmarried couple be given the same rights as a married couple to employee benefits. In addition, the law specifically provides that a person accused of sexual harassment is not insulated from such an accusation by the anti-discrimination provisions. This should go without saying, therefore I suspect that the caveat was added to avoid opposition based on some argument that homosexual employees are likely to harass others. Of course, since the bill covers heterosexuals as well, maybe it’s just as well to short-circuit some sexual harasser’s cynical defense to liability based on his rampant heterosexuality. Finally, the law would prohibit the collection of statistics on the prevalence of gender orientation or identity by employers or the EEOC.
A more sensitive provision addresses the provision of facilities in which being unclothed is unavoidable, such as locker rooms. The employer would be required to provide “reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.” The employer need not provide new facilities under this law. This is similar to the expectation that a person chooses a gender identity for purposes of which restroom to use; if the employee is in transition from one sex to the other, then the employee chooses a point at which the identity has changed, and uses the other facilities.
I can’t predict whether a law will be passed; I’ve failed at that game too often. Still, the time seems right. The Maryland anti-discrimination law,
providing for access to state courts, in effect since October 2007, covers gender orientation. It is time for the federal government to make it nationwide.
Posted by marykeating on July 28, 2009 under Federal wage and hour law, Pending legislation |
Speaking of the new minimum wage, which I did a few days ago, there are many exceptions to the requirement to pay minimum wage. One has received some attention lately, the tipped employee or waiter minimum wage, which has been stuck at $2.13 per hour since 1991. When I was in college in the 1970s, I made $2 per hour, earning slightly less than minimum wage at my dining hall drudgery job (paying college students less than minimum wage is also legal). For wait staff to make $2.13 per hour is rather shocking; unless they are in busy high-end restaurants, the minimum wage is probably a significant component of their compensation.
Representative Donna F. Edwards of Maryland recently introduced a law to increase the minimum wage gradually, H.R. 2570. In that law, dubbed the “WAGES Act,” for Working for Adequate Gains for Employment in Services, the minimum wage would be increased to $3.75 per hour three months after enactment of the law. In 2011, the minimum will again rise, to $5.00 per hour, and then keep pace at 70% of the federal minimum wage, or at least $5.50 per hour, by 2012.
According to census figures released by Representative Edwards’ office, “nearly 15% of all waiters and waitresses live below the federal poverty level, while only 5.7% of the workforce as a whole falls beneath this threshold. Minority populations are particularly hard hit by these low wages. According to the Census Bureau’s Current Population Survey (CPS), 22.3% of African-American tipped employees and 18% of Latino tipped employees live in families that are below the federal poverty level.” Women are also disproportionately affected.
