January 28th, 2009 | By Paul Cherner
On January 27, 2009, the House and Senate reconciled their versions of the Lilly Ledbetter Fair Pay Act of 2009 and send the agreed bill to President Obama, who signed it into law on January 29, 2009.
The final version of this law is substantially broader than newspaper accounts, which often refer to it as being necessary to allow female employees to be able to proceed with respect to their claims of unequal pay. This law covers all categories of prohibited discrimination under Title VII, as well as under the ADA, ADEA and the Rehabilitation Act. Additionally, the law refers to decisions which may discriminatorily impact upon benefits and other forms of compensation. This latter provision may result in additional challenges with respect to benefit payments that are based upon compensation decisions that were made many years ago.
The law is intended to have a retroactive effect and apply to all charges that were pending on or after May 28, 2007.
January 26th, 2009 | By Paul Cherner
President Obama has appointed Stuart J. Ishimaru as Acting Chair of the Equal Employment Opportunity Commission and Christine M. Griffin as Acting Vice Chair of the EEOC.
President Obama has also appointed Wilma Liebman as Chairman of the National Labor Relations Board.
January 19th, 2009 | By Paul Cherner
There has been a substantial amount of debate concerning the proposed federal legislation entitled the Employee Free Choice Act (“EFCA”).
In 2007, EFCA was passed by the U.S. House of Representatives, but failed to win a cloture vote to end a filibuster in the Senate. Labor unions have listed the passage of EFCA as one of their top priorities. There has been fierce debate about this legislation, often accompanied by statistics supporting either the necessity or the lack of necessity for passing this law.
This law is intended to expedite the process by which unions can organize workers. For the past 60 years, unions were recognized as the collective bargaining representative of a group of employees by either an employer voluntarily agreeing that a majority of their employees wanted the union as their representative (usually through a “card check”) or by the NLRB conducting a secret ballot election. Initially, employees sign union authorization cards, which are then used by a union to obtain voluntary recognition or to petition the NLRB to conduct a secret ballot election. In an overwhelming majority of the situations involving union organizing, the NLRB conducts a secret ballot election.
EFCA would allow a union to have the NLRB certify them as the representative of a group of employees based solely on a card check, which would determine whether a majority of employees in the group have signed cards. This proposed change would have the practical effect of obviating the need (or opportunity) for an NLRB secret ballot election and would expedite the procees of unionization.
According to the NLRB ’s 2008 Operations Report, it conducted elections within 56 days after a petition was filed in 95% of the cases. Where there were post-election matters to consider, the NLRB finalized these elections within 100 days after the petition was filed in 84% of their cases. The unions argue that undue delay has allowed employers to coerce employees into voting against the union. In contrast, employers argue that a secret ballot election is needed to allow employees to weigh the pros and cons of union representation and permit them to vote in privacy without coercion.
EFCA would also expedite the first collective bargaining process by providing a short time (10 days) for the parties to meet and then 90 days to reach an agreement. If an agreement is not reached at that time, either party may request an FMCS Mediator, who has an additional 30 days to persuade the parties to reach an agreement. If a contract has not been agreed to within that time period, the dispute would be submitted to an FMCS Arbitration Panel, which has the authority to resolve the dispute and impose the resolution on the parties for a 2 year period. There would also be enhanced penalties and fines in this new law to protect employees against discrimination during the organizing period until the first contract is entered into.
It will be interesting to see what happens to this legislation during the next Congressional term given the current state of the economy.
January 14th, 2009 | By Paul Cherner
The new FMLA regulations are effective Friday, January 16, 2009 for employers with 50 or more employees. If a covered employer has not already changed their FMLA policies, they should do so now and begin using the new poster and sample forms from the USDOL.
You can obtain the poster and forms from the DOL website by clicking on these links: new poster and Notice of Eligibility (to be given to employees within 5 business days of their request for FMLA leave.) If certification will be required, then the appropriate certification form must be given to the employee (with the Notice of Eligibility) within 5 business days after the leave request: certification for employee’s serious health condition; or certification for family member’s serious health condition; or family military leave for qualified exigency form; or certification for serious injury or illness of covered military service member for Military Family Leave. Within 5 business days after its decision on the leave request, an employer must give a Designation Notice setting forth the terms of such leave if approved, whether additional information is needed or whether the leave request has not been approved.
January 12th, 2009 | By Paul Cherner
On October 9, 2009, the U.S. House of Representatives also passed the “Paycheck Fairness Act” (“PFA”), which proposes to make several changes to the Equal Pay Act of 1963 (“EPA”). The EPA prohibits discrimination in compensation on the basis of gender for equal work. The EPA sets forth the criteria for determining whether the work performed is “equal” and defenses to such a claim.
The PFA is intended to substantially toughen the EPA, by more narrowly defining the circumstances of a defense to an equal pay claim. It also adds provisions for nonretaliation, compensatory damages and, in cases of malice or reckless indifference, punitive damages. The bill specifically permits the filing of an “opt-in” class action. The damages and class action provisions appear to also apply to other violations of the FLSA.
The PFA is a companion bill to the Fair Pay Act, which the House passed on the same day, and they are likely to be considered together by the Senate.
January 9th, 2009 | By Paul Cherner
The U.S. House of Representatives passed “The Lilly Ledbetter Fair Pay Act of 2009″ on January 9, 2009. On January 22, 2009, the Senate passed its version of the Lilly Ledbetter Fair Pay Act. The House and Senate will have to reconcile the two different versions of this bill and then send it to President Obama, who is expected to sign it. This bill will likely become law before the end of February, 2009. This act would amend Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment act, by expanding the time limit that an individual has to file an employment discrimination claim. The amendment would provide that the time for filing a discrimination claim would start to run after the adoption of a discriminatory compensation decision or when the individual becomes subject to such decision or practice or upon each additional application of that decision or practice. This last factor is known as the “paycheck rule”, which will mean that each time an employee receives a new paycheck that reflects what they believe to be discriminatory action under Title VII or the ADEA, the time for filing a charge will begin anew. This change will also apply to claims for violations of the ADEA, ADA and the Rehabilitation Act, if this bill is signed into law in its current form.
This new Act, if it becomes law, will reverse the 2007 U.S. Supreme Court decision which held that the time for filing an employment discrimination charge by employees (including Ms. Lilly Ledbetter) did not begin upon receipt of each new paycheck. The Senate is expected to consider this bill next week.
January 8th, 2009 | By Paul Cherner
If you thought that there were many HR changes in 2008, hold on to your seat for 2009 – it will be a wild ride.
As of January 1,2009, the ADA Amendments (“ADAAA”) became effective. Congress intends this law to broaden the scope of protection by the ADA and to reverse several U.S. Supreme Court cases interpreting the ADA.
The ADAAA expands the definition of “disability” and lists some of the “major life activities” which, if one or more of them are “substantially limited”, result in a finding that an individual has a disability within the meaning of the ADA. This new law also specifies certain bodily functions that are to be included within the definition of “major life activity.” It will be substantially easier for individuals to prove that they have a disability covered by the ADA. Indeed, Congress, in passing the ADAAA, stated that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”
Under the new law, a disability is determined without regard to any mitigating measures, such as insulin, medication, artificial limbs, etc. The only mitigating measures that may be considered are ordinary eyeglasses and contact lenses.
The ADAAA clarifies that an impairment that is episodic or in remission is still a disability if it would substantially limit a major life activity when active. It also broadens the sitiuations where an individual will be protected from discrimination if they are “regarded as disabled” because of an actual or perceived impairment, unless that impairment is transitory or minor.
What does all this mean for employers?
* many more people will be found to have a “disability” protected by the ADA
* employers should educate their managers about the expansion of this law
* employers should designate an individual within the organization, who has had special training, to be the ADA officer
* if an individual has a disability, the next step is to determine whether they can perform the “essential functions” of the job, with or without reasonable accommodation
* the employer and the individual are required to have an “interactive dialogue” to discuss what accommodation, if any, would allow the individual to perform these essential functions
* the employer may elect which accommodation, if any, that it finds reasonable
* in certain very limited and exceptional situations, an employer may deny the request for an accommodation if it can prove that it would impose an “undue hardship”.
There is a very broad range of accommodations that may need to be considered and the designated ADA officer should become knowledgable about them. As an example, the New York Times recently had a story about the wide range of species that are now being used as “service animals.”
Expect 2009 to be one in which employers will be dealing with many more disability issues than in the past.
January 8th, 2009 | By Paul Cherner
A New Dawn. Copyright 2008. Photographer: Paul Cherner.
