In his March 1, 2022 State of the Union Address, President Biden briefly touched upon a handful of employment reforms he is urging Congress to pass. This article is intended to help employers understand five of President Biden's remarks, summarize what those remarks referenced, and describe the status of potential legislation relating to them.
Let's pass the PRO Act
President Biden reiterated his support for the Protecting the Right to Organize Act (the PRO Act). If enacted in its current form, the PRO Act would implement sweeping changes to the National Labor Relations Act (NLRA) intended to strengthen workers' rights to unionize and bargain collectively, including imposition of penalties against employers and executives who retaliate against workers who attempt to collectively bargain, broadening the definition of workers who qualify as "employees" under the NLRA according to the stringent "ABC Test" (currently used in California), and requiring mediation and arbitration in first contract negotiations if no agreement is reached in 90 days, just to list a few. Venable's overview of those provisions can be found here.
Status of Legislation: Following passage in the House of Representatives in March 2021, the PRO Act has remained stalled in the Senate.
Let's pass the Paycheck Fairness Act
President Biden urged Congress to pass the Paycheck Fairness Act, which is aimed at closing loopholes in the Equal Pay Act of 1963 (EPA). The Fair Labor Standards Act already includes equal pay provisions that make it unlawful for an employer to pay men and women doing equal work under similar working conditions differently, except where such pay differential is based on "any factor other than sex." The Paycheck Fairness Act would, among other things, require an employer to demonstrate that the wage disparity is based on a bona fide factor other than sex, such as education, training, or experience, that is job-related and consistent with business necessity.
The Paycheck Fairness Act would also prohibit inquiries into prospective employees' salaries (with some exceptions), prohibit agreements that prevent employees from discussing or disclosing their wages, and add enhanced penalties for violations.
An overview of many key provisions can be found here.
Status of Legislation: The Paycheck Fairness Act was reintroduced in the Senate in June 2021 after passage by the House of Representatives in April 2021. It fell short of the 60-vote threshold and failed in the Senate by a vote of 49-50.
Raise the minimum wage to $15 an hour
President Biden urged Congress to increase the federal minimum wage to $15 per hour so that "no one has to raise a family in poverty." He made the following plea to business owners: "Lower your costs, not your wages."
The federal minimum wage has remained at $7.25 per hour since 2009. Many states and cities have raised their respective minimum wages in the last several years. California, for example, currently has a $15/hour minimum wage for all businesses with 26 or more employees.
Status of Legislation: Last year's Raise the Wage Act bill did not pass the House of Representatives. There is no clear path to near-term approval of a bill to raise the federal minimum wage to $15/hour.
Let's finally get the bipartisan Equality Act to my desk
President Biden encouraged Congress to pass the Equality Act, which would expand federal protections for the LGBTQ+ community. The Equality Act would amend the Civil Rights Act of 1964 to, among other things, explicitly protect employees against workplace discrimination based on sexual orientation and gender identity.
Status of Legislation: The Equality Act bill passed in the House of Representatives in February 2021, but is still awaiting approval by the Senate, as Republican lawmakers have raised concerns about the Equality Act potentially infringing on religious liberties.
Let's pass…paid leave
As President Biden has previously mentioned, he called on Congress to pass paid family and medical leave legislation that would allow workers to take paid time off for reasons such as birth or adoption of a child, caring for a sick loved one, or their own health needs.
Status of Legislation: In November 2021, the House of Representatives passed the Build Back Better spending bill, which includes a national paid family and medical leave program. The bill faces an uphill battle in the Senate, and competing legislation has been introduced—the Protecting Worker Paychecks and Family Choice Act—which would offer incentives for employers to provide leave instead of mandating paid leave.
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Employers are encouraged to contact one of Venable's experienced Labor and Employment attorneys with questions regarding key policy changes. Please feel free to reach out to us to discuss how our attorneys can help you ensure compliance across your hiring and employment practices.