2020 Employment Law Legislative Update: Podcast and Blog

Only the most notable legislation is addressed in this blog as it would otherwise be entirely too long. Both Congress and South Carolina are entertaining bills pertaining to fair pay and minimum wage. Congress is additionally considering a bill that would expand the National Labor Relations Act. South Carolina’s Legislature is also considering bills that would:

• Require employers to take steps similar to those outlined by the Equal Employment Opportunity Commission in its April 25, 2012 guidance on employer’s use of criminal records and disclosure;
• “Ban the Box” on employment applications inquiring if an applicant was convicted; and
• Add “gender identity” and “sexual orientation” to protected classes of the South Carolina Human Affairs Law.

The proposed bills in Congress that employers most need to keep an eye on:

• H.R. 7: Paycheck Fairness Act – This bill addresses wage discrimination on the basis of sex. It amends equal pay provisions of the Fair Labor Standards Act of 1938 to (1) restrict the use of the bona fide factor defense to wage discrimination claims, (2) enhance non-retaliation prohibitions, (3) make it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee’s wages, and (4) increase civil penalties for violations of equal pay provisions. Passed the House on March 27, 2019.
• H.R. 582: Raise the Wage Act – This bill amends the Fair Labor Standards Act of 1938 to increase the federal minimum wage for employees over a seven-year period with an escalator thereafter based on the Consumer Price Index, and it increases the wages for tipped employees from $2.13 to $3.60.
• H.R. 2474: Protecting the Right to Organize Act of 2019 – Report by House Committee on Education and Labor December 16, 2019. This bill revises the definition of “employee” and “supervisor.” It (1) prevents employers from classifying employees as exempt from labor law protections, (2) expands unfair labor practices to include prohibitions against replacement of or discrimination against workers who participate in strikes, (3) makes it an unfair labor practice to require or coerce employees to attend employer meetings designed to discourage union membership, (4) permits workers to participate in collective or class action litigation, (5) allows injunctions against employers engaging in unfair labor practices involving discharge or serious economic harm to an employee, (6) expands penalties for labor law violations, including interference with the National Labor Relations Board or causing serious economic harm to an employee and (7) allows any person to bring a civil action for harm caused by labor law violations or unfair labor practices. There seems to be support for the PRO Act to pass the House but it seems doubtful it will receive consideration in the Senate.
• H.R. 1230: Protecting Older Workers Against Discrimination Act – This bill amends the Age Discrimination in Employment Act of 1967 and other laws to clarify appropriate standards for Federal employment discrimination and retaliation claims and for other purposes. It would overrule the U.S. Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc., which requires plaintiffs in age discrimination cases to prove “but for” causation. According to the sponsors, the bill would ease the standard of proof for ADEA cases and bring it in line with Title VII requirements. Passed the House on January 15, 2020 and read in the Senate on January 16, 2020. Referred to Committee on Health, Education, Labor and Pensions. The White House issued a Statement of Administration Policy opposing the bill. The Senate is not expected to take up the bill this year. If the Senate were to consider the bill and pass it, the President’s senior advisers would most likely recommend a veto.

South Carolina 2019-2020 Legislative Session:

• S. 149: SC Minimum Wage Act – This bill adjusts SC’s minimum wage rate to $1 higher than the federal minimum wage, increasing it annually thereafter using CPI for urban wage earners and clerical workers for the south region or a successor index calculated by the DOL. The new rate will be issued by October 15^th prior to the year it takes effect. The Senate referred the bill to the Committee on Labor, Commerce and Industry on January 8, 2019. Would add Section 41-10-230.
• H. 3114, H. 3217 and H. 3467 – Bills proposing to increase the minimum wage rate. The House referred the bills to the Committee on Labor, Commerce and Industry on January 8, 2019.
• S. 220: Criminal Record Disclosure – This bill provides that an employer may not inquire, consider or require disclosure of an applicant’s criminal record or criminal history for employment until the applicant is selected for an interview or before a conditional offer of employment is made to the applicant. It also prohibits the use of a criminal record to deny employment unless the conviction(s) relate to the job duties of the position considered, are relatively recent and are also serious, among other things. The bill was referred to the Committee on Labor, Commerce and Industry on January 8, 2019. Would add Section 41-1-35.
• H. 3163: Ban the Box – The House referred the bill to the Committee on Labor, Commerce and Industry on January 8, 2019.
• S. 0372: Act to Establish Pay Equality – This bill provides that no employer shall pay wages to any employee at a rate less than the rate paid to employees of another race, religion, color, sex, including gender identity and sexual orientation, age, national origin, or disability status for comparable work and to provide exceptions. The Senate referred the bill to the Committee on Labor, Commerce and Industry on January 15, 2019.
• H. 3139: SC Equal Pay for Equal Work Act – This bill prohibits on the basis of sex the paying of wages to employees of one sex at a lesser rate than the rate paid to employees of the opposite sex for comparable work in jobs that require the same or essentially the same knowledge, skill, effort and responsibility. The House referred the bill to the Committee on Labor, Commerce and Industry on January 8, 2019.
• H. 3615: Act to Establish Pay Equity – Similar to S 372. House Referred to Committee on Labor, Commerce and Industry January 16, 2019.
• H. 3239: Uniform Antidiscrimination Act / H. 3786: Workplace Freedom Act – Both bills would expand the definition of “discrimination” to include discrimination based on gender identity and sexual orientation. House 3239 referred to Committee on Labor, Commerce and Industry on January 8, 2019.
• H. 3401: Freedom of Employment Contract Act – This bill would repeal the “right to work” provisions in South Carolina’s Labor Title (Chapter 7, Title 41 provisions relating to the right to work). House Referred to Committee on Labor, Commerce and Industry on January 8, 2019.

Be sure to subscribe to our blog as we will continue to report on these bills throughout the year.