Employment law update for 2009

Employment Law: 2009 In Review Presented by Alexis C. Knapp Littler Mendelson, P.C. 12/15/09

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

Recent Legislative Changes • ADA • FMLA • GINA • Ledbetter

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

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

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

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

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

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

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

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

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

Other Developments and Current Issues

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

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

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

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

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

Expected Areas of Interest for the Current Administration • Unionization • Discrimination/Civil Rights • WARN expansion • FMLA expansion • Arbitration agreements • Minimum wage increases • Paid sick time

Increased Enforcement • NLRB • OFCCP • FLSA/Wage and Hour • EEOC • Immigration

Thank You Questions? Alexis C. Knapp aknapp@littler.com (713) 652-4706

Employment law update for 2009

by G&A Partners on Oct 27, 2010

Accessibility

Categories

Tags

Upload Details

Usage Rights

1 Embed 9

Statistics

Employment law update for 2009 — Presentation Transcript