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.
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.
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.
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.
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.
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.
A New Dawn. Copyright 2008. Photographer: 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.
There have been many names floated in the media as potential candidates to be Secretary of Labor in the new administration. Almost all share the same characteristic, that they are pro-union, which is expected given the strong support of President-elect Obama by labor unions and their members.
According to recent news reports, it looks like Congresswoman Hilda Solis (D – CA) is the likely nominee. She began her career in the Carter White House Office of Hispanic Affairs and then worked as a budget analyst with the Office of Management and Budget. She served two years in the California Assembly and six years in the California Senate, before being elected to Congress in 2000.
She is the only Member of Congress on the board of American Rights at Work, a pro-union group headed by former Congressman David Bonior, who has been part of the transition team dealing with the Labor Department.
SEIU President Andy Stern praised the likely selection of Solis, stating: “We’re thrilled. She’s been as strong a voice for justice for SEIU workers like our janitors and homecare workers as we’ve ever had.”
Solis will be expected to be at the forefront of the unions’ efforts to enact the Employee Free Choice Act (“EFCA”) within the first 100 days of the new administration. EFCA is expected to substantially change the rules involved in organizing employees and, if passed in its present form, will likely result in a significant increase in the number of unionized workers. Solis would seem to be an ideal choice to lead the legislative battle in Congress to enact this new law, given her substantial experience as a legislator and her Congressional contacts.
Section 409A of the Internal Revenue Code has made substantial changes to the manner in which certain forms of deferred compensation need to be handled. The IRS issued final regulations that require that any changes to deferred compensation arrangements that may be needed to comply with the requirements of 409A to be made by no later than December 31, 2008.
If it has not already been done, it is imperative that there be a legal review of deferred compensation arrangements to determine whether they are covered or exempt from these regulations. If they are covered, then there should be a determination as to whether they can be changed to fit within an exemption to 409A or whether there needs to be an amendment to these plans to ensure that they are compliant with the complex requirements of that law. A failure to be in compliance may result in substantial adverse monetary consequences.
The type of agreements that should be reviewed include, but are not limited to:
The final countdown has begun. Don’t wait till New Year’s Eve to learn that there is a problem with these type of arrangements.
Welcome to my blog. I'm Paul Cherner, a labor and employment attorney and mediator in Chicago. These posts are not legal advice. This site is my personal blog and the opinions expressed are mine and not those of my firm or my firm's clients. Please contact me if you have questions or comments at pjcherner at gmail dot com.
