Employment law update for 2009

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Join G&A Partners for this look back to 2009 employment law:

As 2009 draws to a close we will take a look back at legislative developments that have taken place over the past year. As an employer, keeping up with the regulatory environment is imperative. Join us on December 15th for a special 60 minute briefing where you will learn about new employment regulations that may directly affect your business in 2010.
The webinar will cover the following topics:
Significant legislative developments including the Ledbetter Fair Pay Act, the ADA Amendments Act and the Genetic Information Non-discrimination Act (GINA).
An overview of the latest decisions by the U.S. Supreme Court that impact equal employment opportunity in the workplace.
Recent Federal District Court decisions in Texas regarding personnel practices.

Learn more at www.gnapartners.com!

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Employment law update for 2009

  1. 1. Employment Law: 2009 In Review Presented by Alexis C. Knapp Littler Mendelson, P.C. 12/15/09
  2. 2. Alexis C. Knapp • Associate Dean of the College of Business and Economics and Assistant Professor of Management at Houston Baptist University • J.D., University of Houston Law Center • Admitted to Texas State Bar in 2007
  3. 3. Recent Legislative Changes • ADA • FMLA • GINA • Ledbetter
  4. 4. The ADAAA and Key Changes to ADA in the Workplace • Took effect January 1, 2009 • Philosophical change • Still awaiting final regulations • Overturned large body of employer-friendly case law that had limited the definition of “disabled” • Expands the list of major life activities • Courts are now prohibited from considering mitigating measures • Net effect => more individuals are disabled, and the emphasis has moved toward the reasonable accommodation dialogue
  5. 5. Key Changes to the FMLA • Effective January 16, 2009 • More clarification than a philosophical change • What Happened – The Short Version – Two new qualifying events (the “military amendments”) – Employers gained some administrative ground – Employees gained some new rights – Both sides received clarification – The DOL published new forms
  6. 6. FMLA Basics Unchanged • Who Can Take Leave – Employees Who: – Have a qualifying reason for leave; – Work for a covered employer – 50+; – Are employed at a worksite with 50+ people in a 75- mile radius; and – Have been employed for at least 12 months and worked 1,250 hours during the preceding 12 months. • What it Provides – Unpaid leave (12 or 26 weeks) – Maintenance of benefits – Reinstatement rights
  7. 7. The “Military Amendments” to the FMLA • The National Defense Authorization Act of 2008 • Qualifying Exigency Leave = up to 12 workweeks of leave • Military Caregiver Leave = up to 26 workweeks of leave • National Defense Authorization Act 2010 – took effect October 28, 2009 – Broadened what military servicemembers were covered
  8. 8. Some Pro-Employer Changes to the FMLA • Perfect attendance awards, etc. • Enforcement of employer policies (PTO, etc.) • Waivers/releases • Physical impossibility rule • Absence patterns/abuse • Medical necessity of intermittent leave • 5 day rule • Contacting physicians • FFD tracking essential job functions
  9. 9. Some Pro-Employee Changes to the FMLA • The Seven Year Eligibility Rule • Non-FMLA leave can turn into FMLA leave • Time on light duty does not count • Paid leave may supplement WC or disability payments
  10. 10. FMLA – Other Clarifications • Serious health condition refined • Employer notice obligations expanded and clarified – See http://www.dol.gov/whd/fmla/index.htm – If you are a covered employer, even with no eligible employees – POST the General Notice – Employee gets 15 days to obtain, seven days to cure if defective
  11. 11. GINA Takes Effect • Effective November 21, 2009 • Similar to Title VII prohibitions against discrimination – includes anti-retaliation component • Strict rules about acquiring and even stricter rules about disclosing • Important Steps for Employers – Be sure updated 2010 policies including genetic information in the list of protected categories – Update posters – Ensure any post-offer medical exams or FFD exams do not inquire about family medical history • GINA and the ADA(AA) could impact employer wellness initiatives
  12. 12. The Ledbetter Fair Pay Act • Signed in 2009, retroactive to May 28, 2008 • 180/300 day statute of limitations issue – it’s not just when the discriminatory decision was made, or is imposed, but when its effects are felt (“the paycheck rule”) • Bad news = employees can challenge pay-related decisions years after they have occurred • Good news = backpay limited to two years
  13. 13. Other Developments and Current Issues
  14. 14. Reductions in Force and Release Agreements • New EEOC Guidance on Release Agreements – Don’t forget the basics – consideration issues – What cannot be waived • OWBPA Reminders – Group termination programs – Consideration/revocation periods – Decisional unit information – Language requirements • WARN Reminders
  15. 15. Retaliation • The Standard – Burlington Northern & Santa Fe Railway Co. v. White • Did the employer take an action that that might “dissuade[ ] a reasonable worker from making or supporting a charge of discrimination?” • The bad news = more than just the tangible employment actions of the past • The good news = petty slights and annoyances not enough • Activity need not be formal to be “protected activity” – Crawford
  16. 16. The Employee Free Choice Act • Passed in House, stalled in Senate • Passage in some form likely • Three major changes – Card check authorization – Mandatory mediation/binding interest arbitration – Enhanced penalties for employers
  17. 17. Pandemic/H1N1 Preparedness • “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” • Topics Include: – Disability-related inquiries – Medical examinations/vaccinations – Assessments of whether employee poses a direct threat – Employer’s plan to manage its workforce before and during a pandemic
  18. 18. Miscellaneous • Social Networking Inquiries – the Houston’s Restaurant Case • Ricci – the firefighters – no good deed goes unpunished • E-Verify – Federal contractors – I-9 obligations unchanged • Investigation Issues – sex stereotyping and the rushed investigation
  19. 19. Expected Areas of Interest for the Current Administration • Unionization • Discrimination/Civil Rights • WARN expansion • FMLA expansion • Arbitration agreements • Minimum wage increases • Paid sick time
  20. 20. Increased Enforcement • NLRB • OFCCP • FLSA/Wage and Hour • EEOC • Immigration
  21. 21. Thank You Questions? Alexis C. Knapp aknapp@littler.com (713) 652-4706

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