California Labor and Employment Defense Blog

Change We Can Believe In??

Now that the Democratic Party controls Congress and the Presidency, significant changes appear to be coming in the Labor and Employment field. As stated in “The Corner,” (a blog maintained by the National Review), Democrats are expected to introduce several pieces of employment-related legislation in the next few months, including the Civil Rights Act of 2008. As Peter Kirsanow of the National Review writes, that Act would:

(1) Eliminate existing damage caps on lawsuits brought under Title VII and the ADA. Currently, the damage caps are $50,000 for an employer with 15 to 100 employees; $100,000 for an employer with 101 to 200 employees; $200,000 for an employer with 201 to 500 employees; and $500,000 for an employer with 500 employees or more;

(2) Add compensatory and punitive damages to the FLSA (wage and hour) so that an employee can recover those damages in addition to back pay (which can be doubled if a willful violation is found);

(3) Amend the FAA to prohibit clauses requiring arbitration of federal constitutional or statutory claims, unless an employee knowingly and voluntarily consents to this clause after a dispute has arisen or as part of a collective bargaining agreement;

(4) Make it easier for employees to recover expenses (like expert witness fees) even if they aren’t the prevailing party in a lawsuit in all respects;

(5) Give the National Labor Relations Board authority to award backpay to illegal immigrant employees;

(6) Provide individuals with private rights of action to sue federally-funded programs for disparate impact discrimination under Title VI, Title IX, the Rehabilitation Act of 1973, and the Americans with Disabilities Act (thereby undoing the Supreme Court’s decision in Alexander v. Sandoval);

(7) Condition states’ receipts of federal funds on their waiver of sovereign immunity against individual claims for monetary damages under the ADEA, the FLSA, and the Uniformed Services Employment and Reemployment Rights Act. This would reverse U.S. Supreme Court decisions that have barred these lawsuits against state governments; and

(8) Overturn the Supreme Court’s decision in Buckhannon Board & Care Home v. W. Va. Department of Health and Services, that limited the ability of civil rights attorneys to receive attorney’s fees under 42 U.S.C. § 1988.

All of this is in addition, of course, to the Lilly Ledbetter Paycheck Fairness Act and the proposed abolishment of the secret ballots in Union balloting. Stay tuned as this appears to be just the beginning of the significant employment-related changes that the Obama Administration plans to implement in the coming years.

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