This document provides an agenda and summary of updates on various labor and employment law topics presented by Gina Kuhlman at the Akron Society for Human Resource Management. Key points include: provisions of the Hiring Incentives to Restore Employment Act regarding payroll tax exemptions and business tax credits for hiring new employees; requirements of the Genetic Information Non-Discrimination Act; proposed EEOC rules implementing the ADA Amendments Act and relating to the Age Discrimination in Employment Act; NLRB recess appointments that may impact existing decisions; and an extension of unemployment benefits.

1. Gina A. KuhlmanGina A. Kuhlman May 12, 2010May 12, 2010
Labor andLabor and
Employment LawEmployment Law
UpdateUpdate
AKRON SOCIETY FOR HUMAN
RESOURCE MANAGEMENT

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Presented by:
Gina A. Kuhlman
Partner
1375 E. Ninth Street 222 South Main Street
One Cleveland Center Akron, OH 44308
Ninth Floor 330.849.6768
Cleveland, OH 44114 330.376.4577 fax
216.820-4202
216.623.0134 fax
Email: gkuhlman@ralaw.com
www.ralaw.com

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AGENDAAGENDA
 Hiring Incentives to Restore Employment Act
 Genetic Information Non-Discrimination Act
 EEOC Proposed Rules for the ADA Amendments
Act
 EEOC Proposed Rules Relating to the Age
Discrimination in Employment Act
 National Labor Relations Board Appointments and
Potential Impact on Existing Decisions
 Worker, Homeownership and Business Assistance
Act of 2009 – Extension of Unemployment Benefits

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The HIRE ActThe HIRE Act
 Overview
– Signed into law by President Obama on March
18, 2010 (HR 2847)
– aimed at providing hiring incentives to restore
some of the jobs lost in the latest economic
recession
– Payroll tax relief and Business tax credit
provisions

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The HIRE Act – Payroll Tax ExemptionThe HIRE Act – Payroll Tax Exemption
 Payroll tax exemption of the employer’s
share (6.2%) of the social security tax on
wages paid to
– Qualifying employees
– For employment and wages paid after March
18, 2010 and prior to January 1, 2011

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The HIRE Act – Payroll Tax ExemptionThe HIRE Act – Payroll Tax Exemption
 Qualified Employers
– Any employer other than a federal or state
governmental entity, and their political
subdivisions and instrumentalities
– However, public post-secondary educational
institutions may qualify

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The HIRE Act – Payroll Tax ExemptionThe HIRE Act – Payroll Tax Exemption
 Qualified Employees
– Hired after February 3, 2010 and before January
1, 2011
– Employee Affidavit:
• Employee certifies that he or she as not worked
40 hours during prior 60-day period (ending on
date employment begins)
• Form W-11 Affidavit available from IRS as of April
7, 2010

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 Qualified employees continued
– Employee Affidavit
• Employers are required to maintain with
payroll records
– Employee is not hired to replace another
employee
• Unless the other employee separated
voluntarily or for cause
The HIRE Act – Payroll Tax ExemptionThe HIRE Act – Payroll Tax Exemption

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The HIRE Act – Payroll Tax ExemptionThe HIRE Act – Payroll Tax Exemption
 Qualified employees continued
– Employee is not fired and then re-hired to
obtain benefit
• IRS Guidance needed as to recalling employees
from bona-fide layoff
– Relatives are not eligible
• i.e. close family relationship with the
employer or “related” majority owners of a
corporate employer

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 Employer tax credit of up to $1,000 per
qualifying employee
– Additional one-time credit
– For qualifying employees employed a
minimum of 52 consecutive weeks
– To be claimed on employer’s 2011 returns
 Form 941, Employer’s Quarterly Federal Tax
Return, to claim the payroll tax exemption is
available in draft form
The HIRE Act – Tax CreditThe HIRE Act – Tax Credit

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Genetic Information Non-Discrimination ActGenetic Information Non-Discrimination Act
 Applies to employers with 15 or more
employees
 Effective November 21, 2009, GINA prohibits
– Discrimination against employees or applicants
based on genetic information
• prohibits the use of genetic information in
making employment decisions
• restricts acquisition of genetic information by
employers
• strictly limits the disclosure of genetic
information.

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Genetic Information Non-Discrimination ActGenetic Information Non-Discrimination Act
 Definition of Genetic Information
– Includes
• Information about an individual’s genetic
tests
• Information about genetic tests of an
individual’s family member
– i.e. family medical history
– To prevent discrimination on the basis of
increased risk of getting a disease,
disorder or condition

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Genetic Information Non-Discrimination ActGenetic Information Non-Discrimination Act
 EEOC IMPLEMENTS
– Final Regulations expected to be published in May 2010
 PROPOSED RULES
– Definition of Family Member
– include the individual's children, siblings, and
– parents (first degree) and extend to great-great
grandparents (fourth degree relative) and first
cousins once removed (the children of a first
cousin)

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Genetic Information Non-Discrimination ActGenetic Information Non-Discrimination Act
 Proposed Rules
– Acquisition of genetic information
• To exclude inadvertent acquisition
– family medical history where a manager or supervisor
overhears a conversation among co-workers that
includes information about family medical history (e.g.,
a conversation in which one employee tells another that
her father has Alzheimer's Disease), or
– receives an unsolicited e-mail message from a co-
worker that includes genetic information.

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ADA AMENDMENTS ACTADA AMENDMENTS ACT
 Overview
– History
• ADAAA was Passed September 17, 2008
• Became effective January 1, 2009
• EEOC expects to finalize regulations by July
2010

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ADA AMENDMENTS ACTADA AMENDMENTS ACT
 Defining Disability
– The Act retains the ADA's basic definition
of "disability" as:
• an impairment that substantially limits one or
more major life activities,
• a record of such an impairment,
• or being regarded as having such an
impairment; however …

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ADA AMENDMENTS ACTADA AMENDMENTS ACT
 The ADA Amendments Act changes the way
these terms are to be interpreted
– Defines “substantially limits” as “materially
restricts”
– States that impairments that are episodic or in
remission would qualify as disabilities if they
would substantially impair a major life activity
when active

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ADA AMENDMENTS ACTADA AMENDMENTS ACT
 The ADA Amendments Act changes, continued:
– Prohibits consideration of mitigating measures
• Except for glasses or corrective lenses
– Expands “regarded as” claims
• Previously, the ADA required that for an employee to
be covered, the employer had to perceive that the
employee had an impairment that limited a major life
activity
• Now, an employee is covered if he or she is subjected
to an adverse action based upon a perceived
impairment
– i.e. no showing required that the impairment is perceived to
limit a major life activity

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ADA AMENDMENTS ACT RegulationsADA AMENDMENTS ACT Regulations
 Proposed Rules Implementing the ADA
Amendments Act
– Includes list of “certain impairments that will
obviously be substantially limiting
• E.g. autism, cancer, cerebral palsy, diabetes, epilepsy,
HIV and AIDS, major depression and PTSD
– Includes list of impairments that will usually
not be disabilities
• E.g. broken limbs that heal normally, sprained joints;
appendicitis and seasonal or common influenza

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ADA AMENDMENTS ACT RegulationsADA AMENDMENTS ACT Regulations
 Proposed Rules Implementing the ADA
Amendments Act
– “Substantial Limitation” of a major life activity
• As compared to most people in the general
population as opposed to those similarly situated
– Major life activity of working
• Includes an impairment that limits an individual’s
ability to perform the “type of work” at issue as
opposed to a “broad range or class of jobs”

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ADA AMENDMENTS ACT RegulationsADA AMENDMENTS ACT Regulations
 Proposed Rules Implementing the ADA
Amendments Act
– Expands definition of “major life activities”
• the first list includes many activities that the EEOC has
recognized (e.g., walking) as well as activities that EEOC
has not specifically recognized (e.g., reading, bending,
and communicating)
• the second list includes major bodily functions (e.g.,
"functions of the immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions")

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ADA AMENDMENTS ACT RegulationsADA AMENDMENTS ACT Regulations
 Proposed Rules Implementing the ADA
Amendments Act
– Defines “mitigating measures” to include:
• Medication
• Medical supplies
• Equipment or appliances
• Prosthetics
• Hearing aids
– Expands chronic illnesses or conditions that will be
covered since mitigating measures like medications
cannot be considered

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EEOC Proposed Rules Relating to ADEAEEOC Proposed Rules Relating to ADEA
 Age Discrimination in Employment Act
– Employer’s may assert a defense that a
“reasonable factor other than age” (RFOA)
justifies an employment practice that has a
disparate impact on older workers
 Proposed EEOC Rules
– Intended to define “reasonable” to limit
subjective decision-making that has adverse
impact on older workers
• E.g. “flexibility” versus defining number of
requests and employee’s response

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EEOC Proposed Rules Relating to ADEAEEOC Proposed Rules Relating to ADEA
 Defining “reasonable” factor other than age
– a reasonable factor is one that is objectively
reasonable when viewed from the position of a
reasonable employer under like circumstances
– six considerations as potentially relevant to the
reasonableness determination:
• whether the employment practice and the
manner of its implementation are common
business practices;
• the extent to which the factor is related to the
employer’s stated business goal;

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EEOC Proposed Rules Relating to ADEAEEOC Proposed Rules Relating to ADEA
– six considerations as potentially relevant to the
reasonableness determination:
• the extent to which the employer took steps to
define the factor accurately and to apply the
factor fairly and accurately;
• the extent to which the employer took steps to
assess the adverse impact of its employment
practice on older workers;

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EEOC Proposed Rules Relating to ADEAEEOC Proposed Rules Relating to ADEA
– six considerations as potentially relevant to the
reasonableness determination:
• the severity of the harm to individuals within the
protected group, in terms of both the degree of
injury and the number of persons adversely
affected, and the extent to which the employer
took preventative or corrective steps to minimize
the severity of the harm, in light of the burden of
undertaking such steps; and
• whether other options were available and the
reasons the employer selected the option it did.

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NLRB Recess AppointmentsNLRB Recess Appointments
 Three of the Board’s seats have been vacant
since January 2008
– Member Wilma Liebman, 12-year Board member
appointed by President Clinton, was named
Chair of the Board in January 2009
– Member Peter Schaumber was initially
appointed by President George W. Bush

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NLRB Recess AppointmentsNLRB Recess Appointments
 President Obama announced recess
appointments on March 27, 2010 to fill two
vacancies
– Craig Becker
• Served as Associate General Counsel to the
SEIU and the AFL-CIO
– Mark Gaston Pearce
• Attorney representing labor unions
• Member, New York State Industrial Board of
Appeals

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NLRB Decisions that May be RevisitedNLRB Decisions that May be Revisited
 Definition of supervisors (Oakwood, 2006)
– Decision was viewed as expanding who would
be deemed a supervisor
 Voluntary recognition not barring
decertification petition (Dana 2004)
 Employees in non-union workplaces do not
have Weingarten rights (IBM Corp. 2004 –
overruled a prior Clinton-era decision)

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NLRB Decisions that May be RevisitedNLRB Decisions that May be Revisited
 “Salts” not entitled to back-pay unless it is
proven the “salt” would have remained
employed during the period in question (Oil
Capital Sheet Metal, inc. 2007)

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New Board - Other ConsiderationsNew Board - Other Considerations
 Board’s “Rule-Making” Authority
– Broad discretionary authority
– Potential to issue rules similar to EFCA

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Worker, Homeownership and BusinessWorker, Homeownership and Business
Assistance Act of 2009Assistance Act of 2009
 Signed by President Obama on November 6,
2009
 Extends unemployment benefits up to 20
additional weeks in states with a three-
month average unemployment rate of at
least 8.5%

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Update on Break TimesUpdate on Break Times
 Patient Protection and Affordable Care Act
– Amendment to the FLSA signed by President Obama
March 23, 2010
– Covered employers are required to furnish “reasonable”
breaks to mothers to express milk for their infants who
are up to one year old
• does not apply to employers with fewer than 50 employees if its
requirements would “impose an undue hardship by causing the
employer significant difficulty or expense.”
– Requires employers to furnish a private space, other
than a restroom
– Under federal law, the break time can be unpaid

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 Gina’s practice is focused on representation of management interests in labor and
employment law. She counsels and represents management in the areas of
employment-law compliance issues, preparation of personnel policies and
employment agreements, and has successfully defended numerous discrimination
and other wrongful termination claims at the agency level and in both state and
federal courts. She also represents employers in collective bargaining negotiations,
arbitrations, unfair labor practice proceedings and related court actions.
Gina KuhlmanGina Kuhlman
PartnerPartner
CLEVELANDCLEVELAND
1375 East Ninth Street1375 East Ninth Street
One Cleveland Center,One Cleveland Center,
99thth
FloorFloor
Cleveland, Ohio 44114Cleveland, Ohio 44114
Phone: (216) 820-4202Phone: (216) 820-4202
Fax: (216) 623-0134Fax: (216) 623-0134
gkuhlman@ralaw.comgkuhlman@ralaw.com
AKRONAKRON
222 South Main Street222 South Main Street
Akron, Ohio 44308Akron, Ohio 44308
Phone: (330) 849-6768Phone: (330) 849-6768
Fax: (330) 376-4577Fax: (330) 376-4577
Fax: (216) 623-0134Fax: (216) 623-0134
gkuhlman@ralaw.comgkuhlman@ralaw.com

35. INTRODUCING OUR FIRMINTRODUCING OUR FIRM
ANDAND
CAPABILITIESCAPABILITIES

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 More than 230 attorneys
 43 paralegals and nurse consultants
 225 staff members
 More than 40 areas of practice
 12 offices
FIRM OVERVIEWFIRM OVERVIEW
Roetzel& Andress has theresourcesRoetzel& Andress has theresources
necessarytomeet ourclients’ needs.necessarytomeet ourclients’ needs.

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FIRM OVERVIEWFIRM OVERVIEW
 Akron
 Cincinnati
 Columbus
 Cleveland
 Fort Lauderdale
 Fort Myers
 Naples
 Orlando
 Tallahassee
 Toledo
 Washington, D.C.
 New York City

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FIRM OVERVIEWFIRM OVERVIEW
• Intellectual Property &
Information Technology
• Medical Defense
• Product Liability
• Real Estate
• Risk Management
• School Law
• Transportation
• Workers’ Compensation
• Bankruptcy & Creditors’ Rights
• Business Litigation
• Corporate & Business Services
• Employment Services
• Environmental, Health & Safety
• Estate Planning
• Government Relations
• Green & Sustainable Development
• Insurance Coverage
More than 40 areas of practice including:

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EMPLOYMENT SERVICES GROUPEMPLOYMENT SERVICES GROUP
 The Labor and Employment attorneys at Roetzel & Andress
work cooperatively with in-house counsel, risk management
professionals and human resource departments to handle
routine and complex regulatory compliance issues that affect
the workplace.
 We represent both union and non-union public and private
companies, not-for-profit organizations, public sector entities,
entrepreneurial ventures, and professional associations
across the entire spectrum of labor and employment issues.
 Many of our attorneys are Ohio State Bar Association board
certified specialists in the areas of Workers' Compensation
and Labor and Employment Law.

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REPRESENTATIVE SERVICESREPRESENTATIVE SERVICES
 Employee compensation and leave policies
 Employee handbooks & employment agreements
 Employee screening and testing
 Government contractor requirements
 Layoffs and reductions in workforce
 Occupational safety and health issues

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AFFILIATED PRACTICE AREASAFFILIATED PRACTICE AREAS
 EMPLOYEE BENEFITS
 LABOR & EMPLOYMENT LITIGATION AND
LABOR RELATIONS
 WORKERS’ COMPENSATION

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EMPLOYEE BENEFITSEMPLOYEE BENEFITS
 REPRESENTATIVE SERVICES
– 401(k)s, Employee Stock Ownership Plans (ESOPs)
and pension plans
– Claims administration issues
– Employee Retirement Income Security Act (ERISA)
– Executive compensation
– Family and Medical Leave Act (FMLA)
– Fiduciary responsibility counseling
– Fringe benefit plans
– Litigation
– Regulatory compliance
– Welfare benefit plans

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LABOR & EMPLOYMENT LITIGATION ANDLABOR & EMPLOYMENT LITIGATION AND
LABOR RELATIONSLABOR RELATIONS
 REPRESENTATIVE SERVICES
– Alternative dispute resolution
– Civil Rights law
– Wrongful termination
– Employment tort litigation
– Employment discrimination
– All types of harassment
– Non-compete and confidentiality agreements
– Trade secrets
– Collective bargaining negotiations
– Arbitrations, mediations and grievances
– Unfair labor practice proceedings

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WORKERS’ COMPENSATIONWORKERS’ COMPENSATION
 REPRESENTATIVE SERVICES
– Adjudication Committee hearings
– Appeal and mandamus actions
– Audits, classifications and premium disputes
– Bureau of Workers' Compensation (BWC) audits and protests
– District, Staff and Industrial Commission hearings
– Industrial injuries
– Intentional tort and retaliation claims
– OSHA standards, complaints, responses and inspections
– Self-insured applications, complaints and carrier issues
– Subrogation and third-party claims
– Unemployment compensation rate and claim disputes
– Violation of Specific Safety Requirements (VSSR)

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230 attorneys.230 attorneys.
40 areas of practice.40 areas of practice.
12 offices.12 offices.
One address –One address – www.ralaw.comwww.ralaw.com
AKRONAKRON ●● CINCINNATICINCINNATI ● CLEVELAND ● COLUMBUS● CLEVELAND ● COLUMBUS
FORT LAUDERDALE ●FORT LAUDERDALE ● FORT MYERSFORT MYERS ●● NAPLESNAPLES ●● NEW YORK CITYNEW YORK CITY ●●
ORLANDOORLANDO
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