Legislative Updates Affecting Governmental Liability
July 21, 2009

This is a synopsis of recent Federal and State legislation and pending bills relating to municipal and government liability.

I.    FEDERAL

    A.    NEW LEGISLATION

• Amendments to the Medicare Secondary Payer Act, 42 U.S.C. § 1395y and 42 C.F.R. § 411, took effect on July 1, 2009, imposing new reporting requirements on primary payers, such as Group Health Plans, Workers Compensation plans, liability insurers (including self-insured entities), and no-fault insurers. The payers are to (1) determine whether a plaintiff or claimant is eligible for Medicare benefits and (2) provide the Centers for Medicare and Medicaid Services with the identity of the plaintiff or claimant and any other information the Secretary of Health and Human Services may require within a time specified by the Secretary.  Implementation procedures are pending.  Contact John Morgenstern at (215) 587-9400 for updates.   

• Lilly Ledbetter Fair Pay Act of 2009 (Public Law No: 111-2), signed into law on January 29, 2009, amends Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973.  Requires payment for each discriminatory compensation decision or other practice that is unlawful under these Acts.

•   Employee Free Choice Act of 2009 (H.R. 1409/S. 560) has not yet passed either house of Congress and remains in committee.  If passed, among other things, EFCA would amend the National Labor Relations Act to require the National Labor Relations Board to certify a bargaining representative without directing an election provided that a majority of the bargaining unit employees have authorized designation of the representative (a procedure known as “Card-Check”).

• Health Families Act (H.R. 2460/S. 1152) has not yet passed either house of Congress and remains in committee.  If passed, the Act would require employers who employ 15 or more employees for each working day to permit each employee to earn at least one hour of paid sick time for every 30 hours worked, up to a mandated maximum of 56 hours per year.  This Act would also waive a state’s sovereign immunity with respect to suits brought by an employee of a federally-assisted state program or activity for relief authorized under the Act.

• Paycheck Fairness Act (H.R. 12/S. 182) was passed by the House of Representatives on January 9, 2009, but was ultimately tabled.  The Senate has not yet voted on this Act.  If enacted, this Act would Amend the Fair Labor Standards Act of 1938 (the “Equal Pay Act”) to revise remedies for, enforcement of and exceptions to prohibitions against sex discrimination in the payment of wages.

• Arbitration Fairness Act of 2009 (H.R. 1020) has not passed the House of Representatives and remains in committee.  In the event that it is ultimately enacted, it would invalidate any pre-dispute arbitration agreement if it requires arbitration of:  (1) an employment, consumer or franchise dispute; or (2) a dispute arising under any statute intended to protect civil rights.  However, this Act would exempt arbitration provisions contained in collective bargaining agreements

•  None

• Senate Bill No. 189.  An Act amending the act of May 17, 1921, known as The Insurance Company Law of 1921, further providing for conditions subject to which policies are to be issued; and providing for health insurance coverage for certain children of insured parents.  The Insurance Department and Department of Public Welfare do not anticipate any fiscal impact on Commonwealth programs.

• Senate Bill No. 363.  An Act providing for notice to employees of electronic monitoring by employers of network and information technology resources; establishes a cause of action and imposes civil penalties.  Referred to Communications and Technology on February 20, 2009. 

• Senate Bill No. 517.  An Act amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, in commencement of proceedings, requiring municipal police department policies relating to searches.  Referred to Judiciary on May 2, 2009.

• Senate Bill No. 730.  An Act providing for the rights of law enforcement officers concerning certain complaints and grievances.  Referred to Law and Justice on April 3, 2009. 

• Senate Bill No. 909.  An Act amending the act of June 24, 1931, known as The First Class Township Code, further providing the general provisions relating to examinations, for rejection of applicant and hearing, for manner of filing appointments, for probation, and for physical examinations.  Re-referred to Appropriations on July 8, 2009.

• Senate Bill No. 911.  An Act amending the act of May 31, 1933, providing for the appointment, promotion, reduction, removal and reinstatement of paid officers, firemen and employees of fire departments and of fire alarm operators and fire box inspectors in the bureaus of electricity in cities of the third class; defining the powers and duties of civil service commissions for such purposes; and fixing penalties, and further providing for civil service examinations and eligibility lists.  Re-referred to Appropriations on July 8, 2009.

• Senate Bill No. 912.  An Act amending the act of June 1, 1945, providing for and regulating the appointment, promotion and reduction in rank, suspension and removal of paid operators of fire apparatus in boroughs, incorporated towns and townships of the first class; creating a civil service commission in each borough, incorporated town and township of the first class; defining the duties of such civil service commission; imposing certain duties and expenses on boroughs, incorporated towns and townships of the first class; imposing penalties; and repealing inconsistent laws; further providing for general provisions relating to examinations, for rejection of applicant and hearing, for manner of filing appointments, for probationary period and for physical examinations.  Re-referred to Appropriations on July 8, 2009.

• Senate Bill No. 913.  An Act amending the act of June 5, 1941, providing for and regulating the appointment, promotion and reduction in rank, suspension and removal of paid members of the police force and boroughs, incorporated towns and townships of the first class maintaining a police force of not less than three members; creating a civil service commission in each borough, incorporated town and township of the first class; defining the duties of such civil service commissions; imposing certain duties and expense on boroughs, incorporated towns and townships of the first class; imposing penalties, and repealing inconsistent laws; further providing for general provisions relating to examinations, for rejection of applicant and hearing, for manner of filing appointments, for probationary period and for physical examinations.  Re-referred to Appropriations on July 8, 2009.

• Senate Bill No. 934.  An Act amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, further providing for exceptions to governmental immunity relating to tax sales of property.  Referred to Finance on June 5, 2009.

• House Bill No. 1089.  An Act amending the act of May 17, 1921, known as The Insurance Company Law of 1921, in health and accident insurance, providing for group health policies to continue for a period of time after termination of employment or membership in health maintenance organizations.  The Insurance Department estimates minimal costs associated in complying with the requirements set forth in the Act, including developing regulations and oversights.  All costs are expected to be absorbed within the Department’s current operating budget. 

• House Bill No. 1773.  An Act prohibiting certain licensees from knowingly employing illegal aliens; and imposing sanctions.  Referred to Professional Licensure on June 24, 2009. 

• Amends Title 40A:12A-3 concerning the provision of affordable housing.  A500, S1783 approved July 17, 2008.

•  Assembly Bill No. 226.  An Act establishing civil immunity for persons who give good faith reports of crimes related to terrorism and supplementing Title 2A of the New Jersey Statutes.  Introduced pending technical review by legislative council. 

• Assembly Bill No. 657.  An Act granting immunity to employers in certain circumstances and supplementing Title 34 of the Revised Statutes.  Introduced pending technical review by legislative council.

• Assembly Bill No. 1101.  An Act concerning claims arising from a Defendant’s valid exercise of certain constitutional rights and supplementing Title 2A of the New Jersey Statutes.  Authorizes a Motion to Dismiss in a cause of action (a “SLAPP” suit) arising from a Defendant’s valid exercise of the constitutional rights of freedom of speech.  Introduced pending technical review by legislative council.

• Assembly Bill 1193.  An Act concerning pregnancy and breast-feeding in the workplace, amending P.L. 1945, c. 169 and supplementing Chapter 2 of Title 34 of the Revised Statutes.  Expands civil rights protections to include pregnancy and breast-feeding; requires employers to provide daily break to breast-feeding mothers.  Introduced and referred to assembly labor committee. 

• Assembly Bill No. 3092.  An Act concerning claims under the “New Jersey Civil Rights Act,” amending P.L. 2004, c. 143 and supplementing Title 10 of the Revised Statutes.  Requires a 90-day notice of claim for actions brought under the New Jersey Civil Rights Act.