Employment Law Updates

As mentioned in a previous blog post, we are going to keep you up-to-date on any recent or upcoming laws that affect the workplace. In order to do this, we have asked Jon Vegosen, a founding member of the Chicago law firm of Funkhouser Vegosen Liebman & Dunn Ltd. (“FVLD”), to periodically summarize these changes. FVLD is a full service law firm, and Jon regularly counsels clients, publishes articles, and conducts seminars on all types of labor and employment law matters. Because Jon’s periodic labor and employment law “updates” will only be brief overviews of important federal laws, we encourage you to speak with him directly at (312) 701-6860 or visit his firm’s website (www.fvldlaw.com), or contact your regular counsel, EAP, or other HR consultants. Of course, the updates are merely informational and do not constitute legal advice.

In the few laws President Obama has already signed, it is clear that the current administration will be focusing on creating a workplace that is more “employee friendly.” This focus is at odds in several ways with the previous administration, which advocated for and implemented numerous laws favoring employers over the course of the last eight years. I say this not to take sides but merely to put current events into context. No matter your politics, it is a good idea for employers to strategize about how to deal with these as there will likely be more changes to federal labor and employment laws in the future.

Here are some highlights of several recently enacted labor and employment laws and a ground-breaking law that we anticipate will be enacted:

Americans With Disabilities Act: The ADA Amendments Act (the “ADAAA”) modifies the Americans with Disabilities Act (the “ADA”), effective January 1, 2009. Among other things, the ADAAA effectively overrules Supreme Court cases restricting the definition of a disability and expands the scope of a “disability” to include conditions and impairments that previously would not have triggered the protections of the ADA. These changes require employers to place a greater emphasis on the reasonable accommodations they offer individuals with disabilities. Creative and proactive measures in relation to accommodating disabled employees are the best way for employers to avoid unnecessary litigation.

Family and Medical Leave Act: Effective January 16, 2009, new Department of Labor regulations went into effect making significant changes to the interpretation and enforcement of the Family and Medical Leave Act (the “FMLA”). Some of these changes are pro-employee while others are pro-employer. Among the regulatory changes are the additions of “qualified exigency leave” and “military caregiver leave.” These new regulations apply only to military families. In a nutshell, “qualified exigency leave” allows certain family members of a National Guard service member to take FMLA leave for certain military-related events such as various pre- and post-deployment activities. “Military caregiver leave,” on the other hand, allows certain members of a service member to take FMLA leave to care for that service member in the event he or she is injured in the line of active duty.

Lilly Ledbetter Fair Pay Act: Signed into law on January 29, 2009, this Act effectively reverses a 2007 United States Supreme Court decision holding that unequal pay claims must be filed within 180 days of the initial discrimination. Under the Act, each discriminatory paycheck extends the statute of limitations. The Act applies to all claims pending on or after May 28, 2007.

COBRA: President Obama’s signing of the American Recovery and Reinvestment Act of 2009 (the “Act”) on February 17, 2009 is going to substantially affect both employers and employees with regard to the Consolidated Omnibus Benefit Protection Act – otherwise known as COBRA. Those employers affected by the Act need to pay heed and plan and implement post haste. Among other things, the Act provides a 65% subsidy for COBRA (and some state continuation coverage) premiums for an employee whose employment was or is involuntarily terminated between September 1, 2008 and December 31, 2009. Under these changes, employees must only pay 35% of what the employees COBRA premium would have been for a nine-month period. Employers, meanwhile, must pay the remaining 65% of the premium, but may then file a claim with the U.S. Treasury Department to obtain a credit against their payroll taxes for the provided subsidy. COBRA notices to qualifying employees are also going to have to be changed.

I-9 Forms: All employers must verify eligibility and identity of all employees, regardless of citizenship. The U.S. Citizenship and Immigration Services (“USCIS”), however, has changed the list of acceptable documents that can establish both identity and eligibility. The USCIS has delayed the implementation of the interim final rule entitled “Documents Acceptable for Employment Eligibility Verification” until April 3, 2009. The rule streamlines the Employment Eligibility Verification (Form I-9) process and requires all employers to use a revised Form I-9 as of April 3, 2009.

The Genetic Information Nondiscrimination Act: Come May 21, 2009, the Genetic Information Nondiscrimination Act (“GINA”) will prohibit (1) health insurers from using genetic information in determining insurance eligibility or premium amounts, and (2) employers from discriminating against an individual because of his or her genetic information, or because of his or her refusal to disclose such information. And be sure to watch out for state counterparts to GINA, because they may differ from GINA.

Employee Free Choice Act: While not yet signed into law, the Employee Free Choice Act could be the most landmark legislation concerning employees’ rights to join a union since the passage of the National Labor Relations Act during the Great Depression. If signed as presently drafted, the law will make it much easier to unionize an employer and eradicate the need for an election, dramatically affecting the course of an initial contract negotiation, and impose stiff penalties on non-compliant employers.

Tags: employment law, Federal Regulations