Employment Law Update: What HR
Executives Need To Know
Paul Salvatore
Co-Chair, Proskauer Labor and
Employment Law Department
December 9, 2009
Today’s Topics
• Americans With Disabilities Act Amendments Act
• Family and Medical Leave Act
• Lilly Ledbetter Fair Pay Act
• Supreme Court Update
• Employee Free Choice Act
• NLRB Update
• On the Horizon
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Americans With Disabilities Act
Amendments Act
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ADAAA
• The Americans with Disabilities Act (“ADA”):
-
Enacted in 1990
Protects the disabled in public and social settings, including employment
Prohibits discrimination
Requires reasonable accommodation absent undue hardship
• ADA Amendments Act (“ADAAA”):
-
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Enacted on September 25, 2008
Effective January 1, 2009
Clarifies disability definition found in the ADA
Broadens number of individuals who will be covered under the ADA
Focus is now directed to whether a qualified individual has been
discriminated against on the basis of his or her disability, rather than on
whether the individual is a person with a disability
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Summary of Changes Under the ADAAA
ADA
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ADAAA
Disability
The ADA defines “disability” as: (1) a
physical or mental impairment that
substantially limits one or more of
the major life activities of such
individual; (2) a record of such an
impairment; or (3) being regarded as
having such an impairment.
While the amendments fundamentally maintain the ADA’s
“disability” definition, the ADAAA takes several steps to achieve a
broader, more generous interpretation and application of these
terms.
Substantially
Limits
Impairment must prevent or severely
restrict a major life activity.
Definition lies somewhere between the demanding standard that
applied under the ADA and an impairment.
Major Life
Activities
Activities of central importance to
daily life.
Identifies a non-exhaustive list, which includes
general limitations and operation of a major bodily function.
Regarded As
Focus on whether “regarded as”
having
substantial limiting
impairment.
Now defined by statute; individual is “regarded
as” having a disability if the employee establishes that he or she
has been discriminated against because of an actual or perceived
impairment.
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Summary of Changes Under the ADAAA
ADA
ADAAA
Regarded As –
Duty to
Accommodate
Circuit split whether
accommodation required
No accommodation required.
Mitigating
Measures (e.g.,
medication,
hearing aids,
rehabilitative
measures)
Mitigating measures must be
considered in determining
whether disabled.
Mitigating measures are not considered (except
eyeglasses or contact lenses).
Temporary
Disabilities
Temporary or transitory
conditions not covered.
Transitory and minor impairments with actual or
expected duration of 6 months or less are not
covered.
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ADAAA Proposed Regulations
• On September 16, the EEOC approved proposed regulations to
implement the ADAAA for notice and comment.
• Management groups are opposing these proposed regulations as they
do not follow, in all respects, the recent amendments.
• EEOC Acting Vice Chair Griffin stated that: “These regulations will shift
the focus of the courts away from further narrowing the definition of
disability, and put it back where Congress intended”
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ADAAA Proposed Regulations
• The proposed regulations, in addition to minor clarifications:
- Add three major life activities not mentioned in the ADAAA: sitting, reaching, and
interacting with others.
- Add examples of covered major bodily functions including hemic, lymphatic,
musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular
systems
- Provide examples of episodic impairments, including epilepsy, multiple sclerosis,
hypertension, asthma, diabetes, major depression, and bipolar disorder.
- List examples of impairments that “will consistently meet the definition of disability”
when analyzed in light of the ADAAA including deafness, blindness, partially or
completely missing limbs, cancer, autism, HIV/AIDS, diabetes, and a number of
mental diseases.
- Do not include the term Condition Manner and Duration in the definition of
Substantially Limits
- Expand the use of "working" in the prong 1 substantially limits category
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Family And Medical Leave Act
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FMLA Overview
• Family and Medical Leave Act
-
12 workweeks of unpaid leave for most qualifying reasons
Continued Group Health Plan Coverage during leave
Job Protection and Restoration upon return from leave
Covered Employers are those with 50+ employees
• Recent Developments
- Military Leave Provisions: Eligible employees may take up to 26 workweeks
of unpaid leave to care for a covered service member with a serious illness or
injury
- DOL’s Regulations interpreting the FMLA were amended effective January 16,
2009
- Contain new provisions for administering FMLA leave
- Clarify existing rules
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FMLA: Military Caregiver Leave
• Up to 26 weeks of unpaid leave in a single 12-month period for son,
daughter, spouse, parent, or “next of kin” of a covered service member to
care for such service member
• “Covered service member” includes a member of the Armed Forces, the
National Guard or Reserves, who is undergoing medical treatment,
recuperation, or therapy, is otherwise in an outpatient status, or is
otherwise on the temporary disability retired list for a serious injury or
illness
• “Serious injury or illness” is one incurred in the line of active duty that
may render the member unfit to perform his/her duties
• Can be used by family members of veterans for a five-year period
preceding the date on which the veteran undergoes medical treatment,
therapy or recuperation for a serious injury or illness.
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FMLA: Exigency Leave
• Applies to individuals in the U.S. National Guard,
Reserves, or retired members of the Armed Forces as
well active duty service members who are deployed
abroad.
• Employees may take up to 12 workweeks of leave in a
12-month period for a “qualifying exigency” arising out
of that employee’s spouse, son, daughter, or parent
being on active duty or having been notified of an
impending call or order to active duty.
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New FMLA Regulations
• Clarification of “serious health condition”
- In connection with a period of incapacity of more than 3 consecutive full calendar days,
the employee or family member has:
- Two visits to a health care provider, both occurring within 30 days of the beginning of
the period of incapacity; or
- One visit to a health care provider and a regimen continuing treatment (e.g., a
prescription).
- The first (or only) visit must take place within 7 days of the first day of incapacity.
- The healthcare provider decides whether a second visit is needed during the 30-day
period.
• Substitution of paid leave
- Any form of paid leave may be substituted.
- Terms and conditions of paid leave policies apply and must be followed by the employee.
- Example: If an employer requires a two-day notice before taking personal leave,
substitution of personal leave for FMLA leave would require two-day’s notice.
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New FMLA Regulations
• New General Notice
- Must be posted and distributed
- Must be in alternate language in some cases
- i.e., where an employer’s workforce is comprised of a significant
portion of employees who are not literate in English, the employer
must provide the general notice in a language in which the
employees are literate.
• New Individual Notices
- Employer must promptly provide eligibility, rights and responsibilities
notice (5 days)
- Employer must promptly evaluate and designate leave (5 days)
• New Certification Forms
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FMLA: Other Significant Areas of Change
• Certification requirements
• Intermittent leave
• Bonuses based on achievement of goals
• Release of FMLA claims without court or DOL approval
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Lilly Ledbetter Fair Pay Act
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Lilly Ledbetter Fair Pay Act
• Adopts the Paycheck Rule:
- time limit for filing a pay discrimination charge with the EEOC begins to
run each time employee receives a paycheck that manifests
discrimination
• Effectively ends statute of limitations for compensation-implicated
personnel actions under Title VII, the ADEA, the
ADA and the Rehabilitation Act
• Applies to Retirees
• Any employment action “affecting compensation” could be
considered timely
- extends the paycheck rule to include any decision or “other practice”
affecting compensation “in whole or in part” that may have influenced
compensation received
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Lilly Ledbetter Fair Pay Act
• Two-year recovery cap remains
- While employees and retirees may now reach back to their first day of
employment for evidence of a discriminatory pay decision, they can
only recover back-pay for up to the two years preceding the filing of
their EEOC Charge.
• Applies to intentional discrimination and disparate impact claims
• Retroactive application
- The Act takes effect retroactively, applying to all claims of
compensation discrimination pending on or after May 28, 2007 (The
day before the Supreme Court issued the Ledbetter decision).
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Supreme Court Update
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Significant Supreme Court Decisions
• Ricci v. DeStefano, No. 07-1428 (June 29, 2009) (Race-Based Considerations in
Employment Decisions)
- Rejects idea that employer’s “mere good-faith-fear” of liability is a legally sufficient basis
for taking race-based actions and held employer needs to demonstrate a “strong basis in
evidence” that, had it not taken the action, it would have been liable for disparate impact
discrimination.
• Gross v. FBL Financial Services, Inc., No. 08-441 (June 18, 2009) (Change to
Standard for ADEA claims)
- Employees must prove that age was the deciding factor, not just a motivating factor, to
establish a claim of age discrimination.
- Legislation was introduced on October 6, 2009 seeking to restore prior standard.
• Crawford v. Metropolitan Gov’t of Nashville, No. 06-1595 (Jan. 26, 2009) (AntiRetaliation Protection)
- Extends protection to employees who, in response to questions posed during an internal
investigation, disclose information that may constitute unlawful discrimination.
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14 Penn Plaza LLC v. Pyett, No. 07-581(April, 1
2009)
• Collectively Bargained
Agreements for The
Arbitration of Statutory
Discrimination Claims
are Enforceable
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Employee Free Choice Act
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Employee Free Choice Act
• “Card Check Certification” – If a union obtains authorization cards
by more than 50% employees
- No campaign
- No election
- Just a union
- Unions can use “whatever means necessary” to convince
employees to sign cards
• Mandatory mediation if the parties are unable to reach agreement
on the terms of an initial contract after just 90 days of
negotiations.
• Binding arbitration if the parties are unable to reach agreement
after 30 days of mediation.
• Enhanced penalties for unfair labor practices
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EFCA Update
• EFCA As Proposed
• Rumors persist about a Compromise Bill
- Almost impossible to track these rumors
• Unlikely Anything Will Pass In 2009
• 2010 Mid-term Elections
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EFCA: Potential Areas of Compromise
• Instead of cardcheck:
- Significantly expedited election and provide labor with access
to employees
• Instead of first contract arbitration:
- Mediation & Baseball arbitration
- Delay deadline for decertification
• Penalties
- May change but likely to be enhanced regardless of a deal
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NLRB Update
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NLRB Membership & Quorum Issues
• Background
- Robert J. Battista (Fmr. Chair) – expired on December 16, 2007
- Dennis P. Walsh – expired on December 31, 2007
- Peter N. Kirsanow – expired on December 31, 2007
- Peter C. Schaumber – expires on August 27, 2010
- Wilma B. Liebman – expires on August 27, 2011
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NLRB Membership & Quorum Issues
•
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2 Remaining Board Members
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NLRB Membership & Quorum Issues
• Board Member Nominations:
- Craig Becker
- Mark Gaston Pearce
- Brian Hayes
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NLRB Membership & Quorum Issues
• Circuit Court Split
- Two Member Panel Sufficient: Northeastern Land Services, Ltd. (1st
Cir.), New Process Steel, L.P. (7th Cir.), and Snell Island SNF LLC
(2d Cir.)
- Two Member Panel Insufficient: Laurel Baye Healthcare of Lake
Lanier (D.C. Cir.)
- Parting words
- Petition for writ of certiorari
• Supreme Court to Decide the Issue
- On November 2, 2009, the Supreme Court granted certiorari in New
Process Steel v. NLRB.
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On the Horizon
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What to Expect in the Near-Future
•
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Myriad of bills to expand FMLA
-
Expanding Threshold Coverage to employers
with at least 25 employees
-
Expanding the Reasons for Leave to include
elder-care needs, children’s academic
activities, to care for individuals who reside in
employee’s, to address domestic violence and
sexual assault.
-
Provide one full year of job protection for
Military Caregiver Leave if individual is at a
military medical facility
-
Providing Paid Sick Leave
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What to Expect in the Near-Future
• Paycheck Fairness Act
- Limits employer defenses under EPA
- Factor other than sex defense is eliminated and replaced with
BFOQ
• Civil Rights Act Reform
- Eliminates all caps on damages
- Prohibits pre-dispute arbitration
- Allows winning plaintiffs to recover
expert fees
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Arbitration Fairness Act of 2009:
•
Key Provisions
- Invalidates pre-dispute arbitration agreements requiring arbitration of:
- 1) employment, consumer, or franchise disputes; or
- 2) disputes arising under any statutes intended to protect civil
rights.
- Determination of the validity or enforceability of arbitration agreements
are made pursuant to federal law.
- Does not apply to traditional arbitration provisions in collective
bargaining agreements.
- S. 931 provisions would expressly overturn 14 Penn Plaza.
- S. 931 would prohibit arbitration provisions that waive the right of
an employee seeking judicial enforcement of federal and state
statutory or constitutional claims.
- H.R. 1020 introduced prior to 14 Penn Plaza.
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Employment Law Update: What HR
Executives Need To Know
Paul Salvatore
Co-Chair, Proskauer Labor and
Employment Law Department
December 9, 2009