November 2nd, 2009 | By Paul Cherner
The EEOC has revised its required employer postings to reflect recent changes in the EEO laws. The new poster includes two new laws, the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) and the Genetic Information Nondiscrimination Act of 2008 (“GINA” – effective November 21, 2009.) The revised poster also includes updates from the Department of Labor and should be posted as soon as possible.
Employers may obtain the new required postings by either :
- Printing the EEOC’s supplemental posting and posting it next to the EEOC’s September 2002 “EEO is the Law” poster or the OFCCP’s August 2008 “EEO is the Law” poster, or
- Printing and posting the EEOC’s comprehensive November 2009 version of the “EEO is the Law” poster, or
- If you need multiple copies and/or non-English language versions, ordering the new poster through the EEOC Clearinghouse (the posters are on “back order” now, but are expected to be available before GINA becomes effective on 11/21/09.)
September 23rd, 2009 | By Paul Cherner
The EEOC has just published for public comment proposed new regulations interpreting the Americans with Disabilities Amendments Act of 2008 (“ADAA“). The ADAA, which became effective January 1, 2009, required the EEOC to revise its ADA regulations and to redefine the term “substantially limits” in accord with the Congressional goal of defining the term “disability” in favor of broad coverage to the maximum extent permitted by the ADA.
The proposed new rules reiterate that the definition of “disability’ should be broadly interpreted. The new rules liberally interpret the term “substantially limits” by providing that a limitation need not significantly or severely restrict a major life activity in order to meet the ADA standard for disability. The definition of “major life activities” has been expanded and now include factors on two non-exhaustive lists, including one that identifies major bodily functions.
These rules provide that actions based on an impairment should also include actions based on symptoms of an impairment. They also provide that qualification standards, employment tests or other selection criteria based on an individual’s uncorrected vision should not be used unless shown to be job-related for the position in issue and consistent with business necessity.
There is a 60 day period for public comment and then a period of time in which the EEOC will consider the comments before issuing final rules, which will probably not occur before early 2010. However, all employers should be reviewing their ADA policies and practices NOW to take into account the new realities of dealing with a broader and more liberal ADA. The EEOC has published questions and answers regarding their proposed new ADAA rules and employers are advised to review that document with legal counsel and their HR team.
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 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.
December 30th, 2008 | By Paul Cherner
Expect increased activity in the labor and employment law arena from Washington, DC in 2009. The Labor Movement invested more than $300 million and countless volunteer hours to help elect President-elect Obama and enlarge the Democratic majority in Congress and it expects both to enact new legislation and initiate administrative activities that will benefit labor unions and workers.
The number one priority of the labor movement is the Employee Free Choice Act (“EFCA“). EFCA would dramatically change the rules with respect to union organizing of employees by allowing a union to bypass the NLRB’s secret ballot election procedure. If EFCA is enacted, an employer would be required to recognize a union as the representative of its employees after the NLRB has verified that a majority of the employees have signed union authorization cards. After recognition, the employer and the union would have 90 days to negotiate their first collective bargaining agreement. If they are unsuccessful, a mediator from the Federal Mediation & Conciliation Service (“FMCS“) would then become involved in the negotiations. If a contract is not agreed to in the following 30 days, the issues will be submitted to an arbitrator, who will have the power to make a final and binding decision on all open issues. President-elect Obama was a sponsor of the EFCA bill when he was a Senator and Representative Hilda Solis (nominee for Secretary of Labor) voted for it when it passed the House in 2007. It is very likely that EFCA will be enacted, but not necessarily in the first 100 days of the new administration and there may be some modifications made to the proposed collective bargaining procedures and/or to a proposed statutory fine process for unfair labor practices.
President-elect Obama will be able to appoint 3 new Board Members to the 5 member National Labor Relations Board (“NLRB“) and to designate a new Chairman and General Counsel of the Board. These appointees are likely to be more favorable to unions and workers than those appointed during the Bush administration. Also pending in Congress is the “RESPECT” bill, which is intended to reverse a prior NLRB decision that broadly defined which employees were supervisors and thus exempt from union organizing efforts.
The U.S. Department of Labor (“DOL“) is expected to get increased funding and enlarge its staff, so that it will become more active in investigating and enforcing the numerous laws within its purview. There are serious efforts to increase the minimum wage (“FLSA“) and to enact new safety rules (“OSHA“). There is also talk of revising the 2004 DOL regulations pertaining to overtime exemptions, so that more employees will be entitled to overtime.
Several organizations that advocate for a more family friendly workplace are expected to make an effort to have the Family & Medical Leave Act (“FMLA“) require paid leave. There are several states that have recently passed such legislation. The recently promulgated FMLA regulations are not expected to be changed in the near future.
President-elect Obama also has the opportunity to appoint the Chairman, General Counsel and Commissioners to the Equal Employment Opportunity Commission (“EEOC“) and that agency is expected to increase its enforcement efforts during the new administration. Pending in Congress is the “Lilly Ledbetter Fair Pay Act”, intended to reverse the holding of a U.S. Supreme Court case, by allowing an individual to file an employment discrimination charge based on the last date that they were adversely affected by the alleged discrimination.
There are numerous other labor and employment bills pending in Congress which may be enacted as a result in the change in Congress and the administration, so stay tuned for an exciting 4 years.
