EEOC Nominees Still Awaiting Confirmation

The EEOC, like the NLRB, has several presidential nominees to the agency who are waiting for confirmation by the U.S. Senate.

In July, 2009 President Obama nominated Jacqueline A. Berrien, associate director-counsel of the NAACP Legal Defense and Educational Fund, to serve as Chair of the EEOC.  In September, 2009, the President nominated Chai R. Feldblum, a professor of law and director of the Federal Legislation Clinic at the Georgetown University Law Center in Washington, D.C., to be an EEOC Commissioner.

Recently, the President nominated Victoria A. Lipnic, the former Assistant Secretary of Labor for Employment Standards, to be an EEOC Commissioner.  Lipnic’s nomination, if confirmed by the Senate, would fulfill the requirement that two of the five commissioners not be from the President’s political party.  Constance Barker, whose term expires in 2011, is the other Republican Commissioner.

In late July, 2009, the Senate confirmed President Obama’s nomination of EEOC Vice Chair Christine Griffin as Deputy Director of the Office of Personnel Management, but, according to the rules governing the EEOC, Griffin will remain an EEOC Commissioner until her successor is confirmed by the Senate.  On October 22, 2009, President Obama nominated P. David Lopez to be General Counsel of the EEOC .  Lopez has worked for the EEOC for 13 years and is currently a Supervising Trial Attorney in the EEOC’s Phoenix District Office.

H1N1 Influenza Virus Pandemic

                 The Centers for Disease Control and prevention (“CDC”) has just issued a report indicating that in the past six months 22 million Americans have become sick with the H1N1 influenza virus (a/k/a the “swine flu”), of which 4,000 have died.  As this pandemic shows no signs of abating, employers are faced with many legal issues in addition to being concerned about the health and safety of their workers,  customers and clients, while at the same time attempting to determine how best to carry on their businesses under these circumstances.

                 An excellent reference source for most questions pertaining to this pandemic  is the federal government’s website http://www.flu.gov., which contains very useful and specific information, as well as links to issues of specific concern to various businesses.

                The U.S. Department of Labor has just issued two sets of questions and answers concerning the impact of the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”) on issues pertaining to employees absences from work and payment to employees who are directly or indirectly affected by the H1N1 flu virus.  Additional guidance is provided by the EEOC with respect to the impact of the Americans with Disabilities Act (“ADA”) on this pandemic situation. 

                As this situation has evolved, the federal government has continued to issue additional information and guidelines, some of which modified prior guidance.   Accordindly, continued monitoring of the main website -  www.flu.gov is advised.

New EEO Posters

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 :

1. 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 
2. Printing and posting  the EEOC’s comprehensive November 2009 version of the “EEO is the Law” poster, or 
3.  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.)  

EEOC Proposes New ADA Regulations

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.

EEOC Appointment and EFCA Compromise

President Obama has nominated Jacqueline A. Berrien to be Chair of the Equal Employment Opportunity Commission.  Ms. Berrien has been associate director-counsel of the NAACP Legal Defense and Educational Fund for the past five years.  She previously worked for the Ford Foundation and the American Civil Liberties Union.

There appears to be a compromise gathering consensus concerning the enactment of the Employee Free Choice Act (“EFCA”).  See our prior post for a description of the key provisions of this proposed legislation.  The compromise that is emerging will be to drop the card check recognition provisions in favor of quick union elections (five to ten days) to be conducted by the NLRB.   Left in the bill for now are the provisons providing for arbitration of first time union contracts and increased penalties for unfair labor practices committed during organizing drives and/or first contract negotiations.  It is predicted that the Senate will probably not deal with this legislation until September at the earliest.

President Obama’s First Appointments to the EEOC and NLRB

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.

Legislation Alert – House [and then the Senate] Pass The Fair Pay Act

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.

What to Expect in 2009

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.