Labor and Employment
Update For 2008 and
Preview For 2009
Presented by:
John P. Zaimes, Esq.
Reed Smith LLP
355 South Grand Avenue, Suite 2900
Los Angeles, CA 90071
(213) 457.8029
jzaimes@reedsmith.com
John H. Lien, Esq.
Reed Smith LLP
355 South Grand Avenue, Suite 2900
Los Angeles, CA 90071
(213) 457.8029
jlien@reedsmith.com
1
OVERVIEW
I.
2008 Case Review
II. New Developments for 2009
2
I.
2008 Case Review
A. Noncompetes/General Releases
B. Wage and Hour
C. CFRA
D. Arbitration Agreements
E. Individual Liability for Retaliation
F. Hostile Work Environment
3
Noncompetes & General Releases:
Edwards v. Arthur Anderson
 Edwards, a CPA for accounting firm Arthur Andersen,
signed an agreement that provided:
“If you leave the Firm, for eighteen months after release
or resignation, you agree not to perform professional
services of the type you provided for any client on
which you worked during the eighteen months prior to
release or resignation. This does not prohibit you from
accepting employment with a client. For twelve months
after you leave the Firm, you agree not to solicit (to
perform professional services…) any client … to which
you were assigned during the eighteen months
preceding release or resignation.”
Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937, 942 (2008).
4
Noncompetes & General Releases:
Edwards v. Arthur Anderson
 Also, Arthur Andersen planned to cease
operations (due to the Enron scandal).
 HSBC offered Edwards a job.
 HSBC required Edwards to sign a release
to discharge Andersen from “any and all
actions, causes of action, claims,
demands, debt,” including nonwaivable
rights under Labor Code section 2802’s
indemnity protections.
Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937, 941-942 (2008).
5
Noncompetes & General Releases:
Edwards v. Arthur Anderson
 Edwards refused to sign the release,
fearful of being implicated in the federal
investigation of Andersen and of being
named as a defendant by Andersen’s
clients.
 Andersen terminated Edward’s
employment; HSBC withdrew its job offer.
Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937, 941-942 (2008).
6
Noncompetes & General Releases:
Edwards v. Arthur Anderson
Two Questions Presented:
 To what extent does Business and Professions
Code section 16600 permit “narrow restraint”
employee noncompetition agreements?
 Is a contract provision requiring an employee to
release “any and all” claims unlawful because it
encompasses nonwaivable statutory protections,
such as the employee indemnity protection of
Labor Code section 2802?
Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937, 941-942 (2008).
7
Noncompetes & General Releases:
Edwards v. Arthur Anderson
Holding No. 1:
 Under B&P section 16600, the Supreme Court
found Arthur Andersen’s agreement to have
“restricted Edwards from performing work for
Andersen's Los Angeles clients and therefore
restricted his ability to practice his accounting
profession.” Thus, the noncompetition
agreement was invalid.
 California Supreme Court thus repudiated the
Ninth Circuit’s “narrow restraint” doctrine.
Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937, 941-942, 946,
948 (2008).
8
Noncompetes & General Releases:
Edwards v. Arthur Anderson
Holding No. 2:
 “A contract provision whereby an employee
releases ‘any and all’ claims does not
encompass nonwaivable statutory protections,
such as the employee indemnity protections of
Labor Code section 2802” since the agreement
is deemed to expressly incorporate the law that
the employee cannot waive that which is not
waivable.
 (Similar to Workers’ Comp. waivers/releases.)
Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937, 941-942, 946,
948 (2008).
9
Meal & Rest Periods: Employers Only
Need To “Provide”
 Federal Court Decisions
 Labor Code section 512 requires
employers to provide a meal period, not
ensure that they be taken.
 This Interpretation of the statute
forecloses class-wide adjudication of
missed meal period claims, resulting in
denial of plaintiff’s class certification
motions.
10
Meal & Rest Periods: Employers Only
Need To “Provide”
 White v. Starbucks Corp., 497 F.Supp.2d 1080 (N.D.Cal.
2007) (defense motion for summary judgment);
 Perez v. Safety-Kleen Systems, Inc., 253 F.R.D. 508
(N.D.Cal. 2008) (same);
 Brown v. Federal Express Corp., 249 F.R.D. 580 (2008)
(class certification denied);
 Kenny v. Supercuts, Inc., 2008 U.S.Dist. LEXIS 43073
(N.D.Cal. 2008) (same);
 Salazar v. Avis Budget Group, Inc., 251 F.R.D. 529 (S.D.Cal.
2008) (same);
 Kohler v. Hyatt Corp., 2008 U.S.Dist. LEXIS 63392 (C.D.Cal.
2008) (same).
11
Meal & Rest Periods: Employers Only
Need To “Provide”

Brinker Restaurant Corporation operates 137 restaurants
in California.

Putative class action where employees alleged denial of
rest breaks, denial of meal periods (and taking lunch
within first hour of shift), and working off the clock during
meal periods.

DCA: Motion for class certification should have been
denied (reversed trial court).
Brinker Rest. Corp., v. Sup. Ct., 165 Cal.App.4th 25, 30 (2008) (review
granted and pending before the Cal. Sup. Ct. as case no. S166350)
12
Labor Code §512(a)
An employer may not employ an
employee for a work period of more
than five hours per day without
providing the employee with a meal
period of not less than 30 minutes,
13
Labor Code §512(a)
except that if the total work period
per day of the employee is no more
than six hours, the meal period may
be waived by mutual consent of
both the employer and employee.
14
Meal & Rest Periods: Employers Only
Need To “Provide”
The Fourth District Court of Appeal concluded:
1. while employers cannot impede, discourage
or dissuade employees from taking meal
periods, they need only provide them and not
ensure they are taken;
2. employers are not required to provide a meal
period for every five consecutive hours
worked;
Brinker Rest. Corp., v. Sup. Ct., 165 Cal.App.4th 25, 30 (2008) (review
granted and pending before the Cal. Sup. Ct. as case no. S166350)
15
Meal & Rest Periods: Employers Only
Need To “Provide”
3. while employers cannot coerce, require or
compel employees to work off the clock, they
can only be held liable for employees working
off the clock if they knew or should have known
they were doing so;
4. “Because rest and meal breaks need only be
‘made available’ and not ‘ensured,’ individual
issues predominate and, based upon the
evidence presented to the trial court, they are
not amenable to class treatment;”
Brinker Rest. Corp., v. Sup. Ct., 165 Cal.App.4th 25, 30 (2008) (review
granted and pending before the Cal. Sup. Ct. as case no. S166350)
16
Meal & Rest Periods: Employers Only
Need To “Provide”
5. “Off-the-clock claims are also not amenable
to class treatment as individual issues
predominate on the issue of whether Brinker
forced employees to work off the clock,
whether Brinker changed time records, and
whether Brinker knew or should have known
employees were working off the clock.”
6. DEPUBLISHED (CSC Review)
Brinker Rest. Corp., v. Sup. Ct., 165 Cal.App.4th 25, 30 (2008) (review
granted and pending before the Cal. Sup. Ct. as case no. S166350)
17
Meal & Rest Periods: Employers Only
Need To “Provide”
1.
Second District Court of Appeal found that the employer
“provided” meal breaks based on:





a written policy providing for meal periods;
awareness by plaintiff and other managers of the
policy;
reprimands for not taking meal breaks;
a meeting advising plaintiff and others that taking
lunch and rest breaks was required; and
21 declarations from managers who said they were
allowed to take meal periods at their own discretion.
Brinkley v. Public Storage, Inc., 167 Cal.App.4th 1278, 1280 (Oct. 28,
2008) (Petition for Review filed Dec. 4, 2008).
18
Meal & Rest Periods: Employers Only
Need To “Provide”
2. “The interest protected by the meal period
provisions of [Labor Code] sections 226.7 and 512
is the right of employees to be free of the
employer’s control during the meal period. The
meal period laws do not obligate employees to
take meal periods or employers to ensure that
meal periods are taken.”
3. Meal periods need not be provided within the first
five hours of the shift.
Brinkley v. Public Storage, Inc., 167 Cal.App.4th 1278, 1280 (Oct. 28,
2008) (Petition for Review filed Dec. 4, 2008).
19
Meal & Rest Periods: Employers Only
Need To “Provide”
Some strategies to avoid class certification and violations on meal
and rest break violations:
1. Review records and enforce policy providing for meal
and rest breaks
2. Implement policy of reprimanding employees for not
taking meal or rest breaks and document
3. Affirmatively ensure that employees are relieved of all
duty by, e.g., providing an area in the workplace for
taking meal and rest breaks (but allow them to leave the
premises)
4. Get offending employee to acknowledge in writing that:
a. failed to sign out; or
b. missed of own volition; or
c. meal period was provided
20
Pay Stub Violations:
Actual Injury Required
 Putative class action based on pay stub violations
for mistakenly identifying $11.20 per hour as the
rate for associated mileage for property managers
instead of $.19 per hour; pay, however, was
accurately stated.
 An employer cannot be liable for misstatements on
pay stubs under Labor Code section 226, unless it:
 (i) knowingly and intentionally makes such
misstatements; and
 (ii) an employee suffers injury as a result, which
plaintiff did not prove.
Brinkley v. Public Storage, Inc., 167 Cal.App.4th 1278, 1280 (Oct. 28,
2008) (Petition for Review filed Dec. 4, 2008).
21
California Family Rights Act:
Split Decision For Employers
 Hospital employee claimed work-related stress and
received a medical note for a leave of absence.
Employee stated that she would not return to work
prior to August 27, 1999.
 Employer directed her to see another doctor, who
determined plaintiff could work without any
restrictions.
 Employer allowed plaintiff to use PTO, but directed
her to return to work by August 23, 1999 or face
dismissal.
Lonicki v. Sutter Health Central, 43 Cal.4th 201 (2008)
22
California Family Rights Act:
Split Decision For Employers
 On August 26, 1999, plaintiff’s psychiatrist
found employee was “disabled by major
depression” and recommended her medical
leave be extended to September.
 Employer terminated employee for failing to
appear at work on August 23 and 24.
 N.B.: During her “leave” and at the time of
her termination, plaintiff worked part-time at
another hospital performing similar duties.
Lonicki v. Sutter Health Central, 43 Cal.4th 201 (2008)
23
California Family Rights Act:
Split Decision For Employers
Questions Presented:
 When faced with conflicting medical opinions on
whether an employee is unable to perform her job,
must an employer obtain a “tie-breaking” medical
opinion to preserve its right to challenge the
employee’s subsequent CFRA claim?
 Can an employee who works a similar job for
another employer on a part-time basis still claim
that she was not capable of performing her job?
(Employer claimed that her part-time job was
conclusive evidence that she could work.)
Lonicki v. Sutter Health Central, 43 Cal.4th 201 (2008)
24
California Family Rights Act:
Split Decision For Employers
 No. Under the statutory language of CFRA, an
employer merely has the option to request a tiebreaking option if the first two doctors disagree.
 Yes. The relevant inquiry was whether plaintiff’s
alleged serious health condition rendered her unable
to do her job at the defendant’s hospital. The
Supreme Court found that plaintiff’s part-time job at
another hospital, performing similar duties, did not
conclusively demonstrate that she could perform her
job.
Lonicki v. Sutter Health Central, 43 Cal.4th 201 (2008)
25
California Family Rights Act:
Split Decision For Employers
 "The Court of Appeal affirmed the trial court,
reasoning that under the CFRA an employer must
grant medical leave only if the employee is unable to
perform the employee's essential job functions
'generally, rather than for a specific employer.'
Plaintiff challenges the Court of Appeal's holding,
arguing that the relevant inquiry is whether a serious
health condition made her unable to do her job at
defendant's hospital, not her ability to do her
essential job functions 'generally,' as the Court of
Appeal concluded. She is right. Neither the CFRA
nor the FMLA, after which the CFRA was modeled,
has language supporting the Court of Appeal's
holding.”
Lonicki v. Sutter Health Central, 43 Cal.4th 201 (2008)
26
California Family Rights Act:
Split Decision For Employers
 Citing a Ninth Circuit case, which interpreted the
FMLA, the court explained: "A demonstration that an
employee is unable to work in his or her current job
due to a serious health condition is enough to show
that the employee is incapacitated, even if that job is
the only one that the employee is unable to perform.
The [Ninth Circuit] court explained that 'the inquiry
into whether an employee is able to perform the
essential function of her job should focus on her
ability to perform those functions in her current
environment.' We agree."
Lonicki v. Sutter Health Central, 43 Cal.4th 201 (2008)
27
Arbitration Agreements:
Review Them Again
 “[T]he Arbitrator, and not any federal, state, or local
court or agency, shall have the exclusive authority
to resolve any dispute relating to the interpretation,
applicability or formation of this Agreement,
including but not limited to any claim that all or part
of this Agreement is void or voidable”
 Each party had the right to take the deposition of
one individual and any expert witness designated
by another party. “Additional discovery may be had
only where the Arbitrator selected pursuant to this
Agreement so orders, upon a showing of
substantial need.”
Ontiveros v. DHL Express, 164 Cal.App.4th 494 (2008).
28
Arbitration Agreements:
Review Them Again
 “[P]rovision in the arbitration agreement giving
the arbitrator exclusive authority to decide
enforceability issues is unconscionable and,
therefore, unenforceable.”
 “Because an employee may not be required to
pay fees unique to arbitration, the provision in
the agreement requiring such payment is
unlawful and hence substantively
unconscionable.”
Ontiveros v. DHL Express, 164 Cal.App.4th 494 (2008).
29
Arbitration Agreements:
Review Them Again
 “[T]he permitted discovery is so low [deposition
of only one individual permitted] while the
burden for showing a need for more discovery
[substantial burden standard] is so high that
plaintiff’s ability to prove her claims would be
unlawfully thwarted by the discovery provision
in the agreement.”
Ontiveros v. DHL Express, 164 Cal.App.4th 494 (2008).
30
No Retaliation Claim Against
Individual Managers Or Supervisors
 Retaliation claims are only proper as
against an employer, not against individual
employees.
 Decision may make removal to federal
court easier for out-of-state companies.
Jones v. The Lodge at Torrey Pines Partnership, 42 Cal.4th 1158, 1160
(2008); Dominguez v. Washington Mutual Bank, 2008 Cal.App. LEXIS
2286, *26 (Nov. 21, 2008).
31
No Retaliation Claim Against
Individual Managers Or Supervisors
 “We conclude that the same rule applies to
actions for retaliation that applies to actions
for discrimination: The employer, but not
nonemployer individuals, may be held liable.”
 FEHA statute makes it an unlawful
employment practice for “any employer, labor
organization, employment agency, or person”
to retaliate. “The statutory language is not
plain.”
Jones v. The Lodge at Torrey Pines Partnership, 42 Cal.4th 1158
(2008).
32
No Retaliation Claim Against
Individual Managers Or Supervisors
 The “reasons for not imposing individual liability
for discrimination – supervisors can avoid
harassment but cannot avoid personnel decisions,
it is incongruous to exempt small employers but to
hold individual nonemployers liable, … the chilling
of effective management, corporate employment
decisions are often collective, and it is bad policy
to subject supervisors to the threat of a lawsuit
every time they make a personnel decision –
apply equally to retaliation.”
Jones v. The Lodge at Torrey Pines Partnership, 42 Cal.4th 1158
(2008).
33
Hostile Work Environment Even If
Comments Not Directed At Employee
 Only female sales representative in the transportation
department claimed that general, sexually offensive
comments made by co-workers and branch manager
and sexually charged radio program played on a daily
basis subjected her to a hostile work environment.
 Court of Appeal found that “the daily exposure to
language and radio programming that are particularly
offensive to women” is “sufficient to satisfy the ‘based
on’ and ‘severe or pervasive’ elements of a hostile work
environment claim.
Reeves v. C.H. Robinson Worldwide Inc., 525 F.3d 1139 (11th
Cir. 2008)
34
OVERVIEW
I.
2008 Case Review
II. New Developments for 2009
35
OVERVIEW
II. New Developments for 2009
A.
B.
C.
D.
E.
F.
G.
Discriminatory “Stray Remarks”
No Texting
FMLA Regulations
ADA Amendments
Mileage Reimbursement
Employee Free Choice Act
Requirement To E-Verify
36
Looking Ahead To 2009
Stray Remarks As Discriminatory Animus?
 Should California law recognize the “stray
remarks” doctrine in ruling on a motion for
summary judgment?
 i.e. disregard isolated discriminatory
remarks or comments unrelated to the
decision-making process as insufficient to
establish discrimination?
Reid v. Google, Inc., 155 Cal.App.4th 1342 (2007) (review
pending by the Cal. Sup. Ct.; case no. S158965).
37
Looking Ahead To 2009
Stray Remarks As Discriminatory Animus?
 Google hired Dr. Reid, age 52, as director
of operations and director of engineering.
 Reid’s manager, age 38, called his
opinions and ideas “obsolete” and “too old
to matter and said he was “slow,” “fuzzy,”
“sluggish,” and “lethargic.”
 Colleagues called him “old man,” “old
guy,” or “old fuddy-duddy.”
Reid v. Google, Inc., 155 Cal.App.4th 1342 (2007) (review
pending by the Cal. Sup. Ct.; case no. S158965).
38
Looking Ahead To 2009
Stray Remarks As Discriminatory Animus?
 Google then removed Reid as director of
operations and two employees, 15-20
years younger, took over his duties; Reid’s
new position was subsequently
terminated.
 At his termination meeting, Reid claims
Google told him he was not a “cultural
fit.”
Reid v. Google, Inc., 155 Cal.App.4th 1342 (2007) (review
pending by the Cal. Sup. Ct.; case no. S158965).
39
Looking Ahead To 2009
Stray Remarks As Discriminatory Animus?
 Trial court had granted Google’s motion for
summary judgment on age discrimination claims.
 Court of Appeal reversed, disagreeing “with
suggestions that “a ‘single, isolated discriminatory
comment’ … or comments that are ‘unrelated to
the decisional process’ are ‘stray’ and therefore,
insufficient to avoid summary judgment.”
Reid v. Google, Inc., 155 Cal.App.4th 1342 (2007) (review
pending by the Cal. Sup. Ct.; case no. S158965).
40
Looking Ahead To 2009
Stray Remarks As Discriminatory Animus?
 "Google argues at length that the comments
Reid offers were stray remarks that do not raise
a triable issue of fact as to pretext. The socalled stray remarks rule allows courts to deem
racist or sexist remarks insufficient to support
denial of summary judgment if the remarks are
considered stray. We cannot view such a rule
as anything other than the assumption by the
court of a fact-finding role."
Reid v. Google, Inc., 155 Cal.App.4th 1342 (2007) (review
pending by the Cal. Sup. Ct.; case no. S158965).
41
Looking Ahead To 2009
Stray Remarks As Discriminatory Animus?

"We do not agree with suggestions that a 'single, isolated
discriminatory comment' or comments that are 'unrelated to
the decisional process' are 'stray' and therefore, insufficient to
avoid summary judgment. There are certainly cases that in
the context of the evidence as a whole, the remarks at issue
provide such weak evidence that a verdict resting on them
cannot be sustained. But such judgments must be made on a
case-by-case basis in light of the entire record, and on
summary judgment the sole question is whether they support
an inference that the employer's action was motivated by
discriminatory animus. Their 'weight' as evidence cannot enter
into the question."
Reid v. Google, Inc., 155 Cal.App.4th 1342 (2007) (review
pending by the Cal. Sup. Ct.; case no. S158965).
42
Looking Ahead To 2009
Stray Remarks As Discriminatory Animus?
 Beware of e-mail communication:
Leading up to his termination, one of
Reid’s manager determined that “Reid
should receive a bonus of $11,300, in
addition to some other suggested terms of
a severance agreement, to avoid a ‘judge
concluding we acted harshly…’”
 DEPUBLISHED (Review granted by CSC)
Reid v. Google, Inc., 155 Cal.App.4th 1342 (2007) (review
pending by the Cal. Sup. Ct.; case no. S158965).
43
Looking Ahead To 2009
No Calling Or Texting While In The Car
Could this be your employee?
 Metrolink engineer was text-messaging shortly before
authorities said his commuter train ran stop signals and
slammed into a freight train in Chatsworth, killing 26,
including himself.
 Brokerage firm settled a personal injury action for
$500,000 when one of its stockbrokers hit and killed a
24 year old motorcyclist (a father of two) while driving
and allegedly making “cold calls” from his cellular
phone.
44
Looking Ahead To 2009
No Calling Or Texting While In The Car
 Employee talking on cell phone, making business
appointments at 77 mph (cruise control). Didn’t see
traffic stopped ahead. Rammed into car and sent it
flying over center divider on its side, after which it slid
down the highway. The driver’s arm was caught
between the car door and the pavement. Several
operations ensued to try to save the arm, but eventually
it had to be amputated just below the shoulder. The
victim, a widowed father of four, sued the employee’s
employer, claiming that use of cell phone while driving
was unreasonably hazardous.
Settlement: $5.2 Million.
45
46
47
48
Looking Ahead To 2009
No Calling Or Texting While In The Car
 Effective January 1, 2009.
 No writing, sending, or reading textbased communication while driving.
 Violation punishable by a base fine of
$20 for a first offense; $50 for each
subsequent offense.
Cal. Vehicle Code § 23123.5
49
Looking Ahead to 2009
New FMLA Regulations (Jan. 19, 2008)
Three Key Changes:
1) Exigent Military Leave
 Leave may be taken “because of any qualifying exigency …
arising out of the fact that the spouse, son, daughter, or parent
of the employee is on active duty (or has been notified of an
impending call or order to active duty) in the Armed Forces in
support of a contingency operation.”
 12-week leave entitlement
29 C.F.R. § 825.126
50
Looking Ahead to 2009
New FMLA Regulations (Jan. 19, 2008)
Exigency Defined As:
 Short-term notice deployment
 Military events and related activities
 Childcare and school activities
 Financial and legal arrangements
 Counseling
 Rest and recuperation
 Post-deployment activities
 Additional activities as agreed upon by the employer
and employee
29 C.F.R. § 825.126
51
Looking Ahead to 2009
New FMLA Regulations (Jan. 19, 2008)
Limitations on Exigent Military Leave
 Does not apply to employees who have family
members in the regular Armed Forces.
 Limited to circumstances involving a family member
in the National Guard or Reserves or a retired
member of the regular Armed Forces or the
Reserve.
29 C.F.R. § 825.126
52
Looking Ahead to 2009
New FMLA Regulations (Jan. 19, 2008)
2) Military Caregiver Leave
 Leave of up to 26 weeks to care for a covered
family member who became ill or injured as a
result of service in the military
 26-week leave entitlement in a 12 month period
 12 month period begins when employee starts
leave (unlike standard 12-week entitlement)
29 C.F.R. § 825.126
53
Looking Ahead to 2009
New FMLA Regulations (Jan. 19, 2008)
Military Caregiver Leave
 “Covered family member” defined as:
 Spouse, son, daughter, or parent; or
 Next of kin (nearest blood relative in the following
order of priority: person granted legal custody by
court decree or statutory provisions; brother and
sisters; grandparents; aunts and uncles; and first
cousins).
29 C.F.R. § 825.126
54
Looking Ahead to 2009
New FMLA Regulations (Jan. 19, 2008)
3)Waiver of FMLA Claims
 Claims based on past employer conduct
 Does not require DOL or court approval of
the settlement or release.
29 C.F.R. § 825.220(d)
55
Looking Ahead To 2009:
Amendment To The ADA (Jan. 1, 2009)
Changes to Definition of Disability
 Rejects U.S. Supreme Court narrow interpretation
of disability and must now be interpreted in “favor
of broad coverage”
 Mitigating measures (such as medication, medical
equipment, prosthetics, hearing aids, or
reasonable accommodation) may not be taken
into account in determining if an employee is
disabled (except for ordinary eyeglasses and
contacts)
 EEOC will issue new regulations regarding
“substantially limit”
56
Looking Ahead To 2009:
Amendment To The ADA (Jan. 1, 2009)
Major Life Activity
 Rejects U.S. Supreme Court narrow interpretation of
“major life activity.”
 Examples of major life activity:
 caring for oneself;
 performing manual tasks, working;
 seeing, hearing;
 eating, sleeping, walking, standing, lifting, bending;
 speaking, communicating, breathing; and
 learning, reading, concentrating, thinking.
57
Looking Ahead to 2009
New Mileage Reimbursement (Jan. 1, 2009)

Standard mileage rate for business travel will
be 55 cents per mile (decrease from 58.5
cents per mile).

New rate reflects rising gasoline prices.
IR-2008-131 (Nov. 24, 2008)
58
Looking Ahead To 2009:
Employee Free Choice Act
Status:
 H.R.800 passed the House in 2007.
 Awaiting a vote in the Senate.
 High on Agenda of New Administration and Congress
Key Elements:
 Certification of a bargaining representative without
directing an election if a majority of the bargaining unit
employees signed valid authorization cards (“card check
process”).
 Union can demand that an employer begin bargaining
with it 10 days after the union is certified via card check
process.
59
Looking Ahead To 2009:
Requirement To E-Verify (Jan. 15, 2009)
 Effective January 15, 2009, Federal Acquisition
Regulation requires federal contractors and
subcontractors to use the E-Verify System, a free
internet-based program, to verify employment
eligibility of new hires.
 Operated by Department of Homeland Security
through the use of the Social Security
Administration’s database.
60
Looking Ahead To 2009:
Requirement To E-Verify (Jan. 15, 2009)
 Exceptions:
 Federal contracts of less than $100,000 or fewer
than 120 days in duration.
 Contracts performed outside the United States.
 Contracts for commercially available off the shelf
items, which includes nearly all food and
agricultural items.
 During 2008, 96.1 percent of all queries through EVerify initially confirmed employment eligibility.
61