Picture of a ballot box to demonstrate the voting for the 2020 Democratic Candidates and highlight how the election may change the workplace — Photo by Element5 Digital on Unsplash

There are a lot of Democratic Candidates for president. As of today, there are 25 active Democratic candidates vying for the party’s nomination. Many of these candidates have not released specific proposals about their beliefs on employment and labor law issues. However, before tonight’s debate I wanted to outline some of the most interesting proposals of the candidates on labor and employment law and the workplace.

$15 Minimum Wage

Joe Biden announced his support in his first campaign speech. Bernie Sanders has drafted legislation to increase the minimum wage to $15 an hour. As reported by Vox, only 4 candidates (Andrew Yang, Bill de Blasio, Jay Inslee, and Wayne Messam) have not taken a position on the minimum wage. Sen. Michael Bennet favors a 12 dollar minimum wage. Klobuchar, Hickenlooper, Warren, O’Rourke, Castro, Harris, Kirsten Gillibrand, Pete Buttigieg, Marianne Williamson, Tulsi Gabbard, Eric Swalwell, Cory Booker, Seth Moulton, Tim Ryan, Mike Gravel, John Delaney, and Steve Bullock all support a $15 minimum wage.

Increasing the minimum wage is likely to have a number of effects on labor and employment. Namely, the minimum wage increase will cause wages to rise for the lowest paid workers. This in turn may cause increased salary compression where higher paid workers do not receive the same increase in their wages that minimum wage workers receive. Many other workers that are not currently minimum wage workers, will need to have wage increases to reward their skills and ensure that they believe that they are adequately compensated. Individuals that have wages close to the minimum wage will expect an increase if they are not making that much more than the minimum wage after a minimum wage hike.

Of course, the minimum wage increase will also have a bigger impact on employers and industries that tend to be located outside of major metropolitan areas or in states where the cost of living is cheaper. For example, in 2015 there were 8 states had a median wage that was less than $15 an hour. Increasing the minimum wage in these states would have a dramatic impact on employee salaries as more than half of workers would need wage increases just to reach the minimum wage. Again, workers with wages that are currently under $15 an hour but above the minimum wage would need wage raises beyond $15 an hour to ensure that their talents are rewarded (i.e. they are getting fairly paid and making more than $15 or the minimum wage). For example, an EMT in Alabama currently averages $14.06 an hour. They would expect a new wage that would be significantly higher than any minimum wage worker making $15 per hour.

Card Check and Union Organizing

Joe Biden, Kamala Harris, Bernie Sanders, Elizabeth Warren, and many others support a law that will enable labor unions to organize by card check. This means that the individuals only need to get a majority of the employees in a workplace to sign union authorization cards. Union authorization cards authorize a specific union to represent the employee, which goes into effect if the union wins an election or the employer voluntarily recognizes the union if a majority of employees sign union authorization. If enacted, card check would mean that there would not be any election to decide whether to form a union in a workplace. Rather, if a majority of employees signed union authorization cards, then the employer would be forced to recognize the union without an election.

This would be a radical change in labor law and would remove, what in my opinion, is a critical piece of labor relations. Namely, that employees are able to vote on whether they would like to have a union in a way that enables their ballots to be secret and free from undue influence.

Eliminating the Gender Pay Gap through EEO-1 Data

Kamala Harris has proposed a requirement that she believes would end the gender pay gap. She is pushing to punish companies with a 1 percent fine for every 1 percent wage gap that exists in their ranks.

Companies will be required to certify that they are paying women the same as men for equal work. To the extent that pay disparities exist a company will need to show that the gap is based on merit, performance, or seniority. Companies will be required to obtain an equal pay certification to avoid paying these fines.

This would be a radical change and would require companies to devote significant resources to demonstrating that their pay practices are not discriminatory.

Sexual Orientation Discrimination

Democratic candidates generally support prohibiting sexual discrimination. This, however, is one issue that will likely be resolved when the Supreme Court decides two cases next year. Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda.

The Supreme Court will decide “Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.” The decision in these cases will likely determine the final proposals of any Democratic candidate on the issue.

Enacting Paid Family Leave

Kirsten Gillibrand reintroduced her legislation to create a federal paid family and medical leave program. Her plan is co-sponsored by Bernie Sanders, Cory Booker, Amy Klobuchar, Kamala Harris, and Elizabeth Warren.

The bill would essential replace unpaid FMLA leave with 12 weeks of paid family leave.

I’ve said it before (see my earlier post). Paid family leave is coming to the US. President Trump and the Democrats both agree on paid family leave but differ in how they wish to implement it.

Eliminating No Poach Agreements

Cory Booker and Elizabeth Warren have proposed legislation that would outlaw no poach agreements within franchise agreements. No poach agreements prohibit employers from hiring the employees of another employer that is part of the agreement. In fact, 11 state Attorney Generals launched an investigation into these no-poaching clauses and seven chains that represented more than 25,000 stores nationwide have dropped these clauses. With these investigations underway, it is unlikely that the bill or any proposal from a presidential candidate will dramatically impact the law because the court cases will likely decide whether these agreements are enforceable under Antitrust law.

Banning Noncompetition Agreements

Senators Warren and Klobuchar support limiting non-competition agreements. Noncompetition agreements permit employers and employees to enter into agreements to prohibit employees from competing against an employer after they leave that employer’s employment. Both of these Senators have called on the Federal Trade Commission to use their rulemaking authority to limit noncompetition agreements.

Elizabeth Warren has sponsored legislation to ban non-competes. Yes, all non-competes. It would not affect the ability of companies to protect their trade secrets.

The legislation fails to consider some of the important factors that matter for noncompetition agreements and why they are important. Granted, not all employees need nor should they be required to sign noncompetition agreements. For example, employees at Jimmy John’s do not need noncompetition agreements. Forcing the employees that make sandwiches to sign noncompetition agreements does not help the company. It destroys employee morale and makes it harder for the company to find employees once this policy becomes known because (surprise) employees want to be treated well.

Salespeople, executives, owners of companies that sell their company but agree to stay with the company during a transition period, and many other high-level employees are individuals that should sign noncompetition agreements. It makes sense that a former owner should not be allowed to open a competing business after he or she sells their business.

We can expect that if either are elected as President that they would seek to limit or do away with noncompetition agreements.

Ending the Tipped Wage

The Raise the Wage Act would phase out the tipped wage. Bernie Sanders, Cory Booker, Klobuchar, Gillibrand, Harris, and Warren have sponsored the legislation and thus support ending the tipped wage. As I said previously in this post (quoted below), the tipped wage has been a controversial subject for many states and cities.

The recent debate in DC to eliminate the tipped wage demonstrates that many groups have a wide variety of opinions on the issue of tips. The proposal was a voter initiative that would have eliminated the tipped wage and it passed, but it was ultimately undone by a DC council vote. Many restaurant workers expressed concern that the elimination of the tipped wage would cost them money as less people would tip.

Ending Arbitration as a Condition of Employment

Cory Booker, Kirsten Gillibrand, Kamala Harris, Amy Klobuchar, Bernie Sanders, and Elizabeth Warren are all cosponsors of the Restoring Justice for Workers Act. The bill would essentially end employment agreements where arbitration is a condition of employment (it is in an initial employment agreement) and would prohibit arbitration in many other circumstances unless the employee agreed to be subject to arbitration and the arbitration agreement met certain conditions.

Elizabeth Warren, in a letter to the Department of Labor’s Solicitor of Labor, requested information about the DOL’s approach in bringing enforcement actions against companies with employees that signed arbitration agreements as a condition of employment. It is clear that she would like to end arbitration agreements as a condition of employment.

Arbitration has some advantages and disadvantages. Robin Shea, at the Employment & Labor Insider, does a great job of outlining them. For many employers and employees, it is the best way to handle workplace disputes. Removing arbitration as a possibility for handling workplace disputes would radically change employment and labor law by requiring all disputes to be resolved through an already backlogged court system.

Conclusion

One thing is certain no matter which Democratic candidate wins the nomination there are a lot of proposed changes to labor and employment law and the workplace in general among the various proposals of the candidates. It will be incredibly interesting to see who the Democratic candidate will be, what policies they will propose, and how the election influences labor and employment law.

Disclaimer: This is not a full list of all the candidates’ political positions on the workplace nor labor and employment law, but merely some highlights of issues you will see in play. If you know of or would like to highlight other aspects of any Democratic candidate that I did not mention or left out, then please feel free to comment below.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Photo by King’s Church International on Unsplash

In case you have not heard, the most popular woman in the world is officially pregnant! With a royal baby on the way, it’s a great time to discuss protections for pregnant women, and what is and is not required of their employers.

First, a quick reminder. You cannot refuse to hire or fire a woman because she is pregnant. That’s a form of illegal discrimination.

What Laws Cover Leave Related to Pregnancy

There are three federal laws that protect pregnant women: The Pregnancy Discrimination Act, the Americans with Disabilities Act, and the Family and Medical Leave Act.

Pregnancy Discrimination Act

The Pregnancy Discrimination Act (PDA) prohibits employers from discriminating based on pregnancy, childbirth, and any related conditions. It applies to employers with 15 or more employees. The act requires employers to “treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as … employees who are similar in their ability or inability to work.”

So, what does this mean for employees once they have given birth. The EEOC explains:

While an employer may not compel an employee to take leave because she is pregnant as long as she is able to perform her job, it must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions (e.g., provide them with the same amount of leave) as others who are similar in their ability or inability to work.

Unfortunately, some employers still do not understand that they have to treat pregnant woman the same as similar employees. For example, this police department in Illinois allegedly forced a pregnant officer to take unpaid leave because it would not allow her to transfer to a “desk job” when she was no longer able to patrol. The officer also claims that the police department denied her a bullet proof vest that fit. Under the Pregnancy Discrimination Act, the police department should have offered her the same options to go into light duty work (desk work and interviewing witnesses rather than patrolling) that other officers were offered.

An employer in this situation should have offered the employee the accommodation that she requested if it was reasonable. This would have been the same kind of work that was offered to other employees that were on light duty.

Americans with Disabilities Act

Pregnancy, by itself, is not a disability. It may be a disability if it “causes a physical or mental impairment that substantially limits one or more major life activities.” For example, gestational diabetes would be a disability under the ADA (Americans with Disabilities Act) because it is a physical impairment that affects a major life activity: eating. If an employee becomes disabled because of their pregnancy or as a result of childbirth, then maternity leave may be a reasonable accommodation. The employer would have to go through the interactive process to determine how to accommodate the employee with a disability.

Most women that give birth or are pregnant will not qualify for protection under the ADA. Regardless, if a female employee mentions that they are experiencing a problem because they are pregnant, then companies should assess whether the ADA applies by determining if the employee has a disability and if there are any reasonable accommodations available. You can learn more about this process in one of my earlier posts.

Family and Medical Leave Act

Pregnant employees may be entitled to leave under the Family and Medical Leave Act (FMLA). The Department of Labor explains what an employee must do to be eligible:

Be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people;
Have worked at least 12 months (which do not have to be consecutive) for the employer; and
Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave is to begin.

Under the FMLA, employees are allowed to take up to 12 workweeks of leave for the birth and care of their child within 1 year of the child’s birth. The employee does not necessarily need to take the leave right away. Employees are also entitled to leave to treat their own serious condition that makes them unable to do their job. For example, if an employee is put on bed rest and being physically at work was an essential function of their position, then the employee could take FMLA leave because they cannot do their job because of their serious health condition.

What is the Future of Family Leave?

There is more political pressure to give some form of paid leave. Various politicians have expressed their support for paid family leave. Ivanka Trump and The White House have discussed their support for family leave. Marco Rubio introduced a plan to allow new parents to delay taking their Social Security benefits in exchange for two months of paid parental benefits. The Democratic Party Platform also called for paid family leave.

One poll showed that 54% of Americans think the government should require all employers to provide 12 weeks of paid family and medical leave. Only 29% of the respondents disagreed and 17% were undecided. With as much support as there is for paid family leave, it seems certain that Congress and the President will eventually enact a paid family leave law.