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IPMA-HR Eastern Region Conference. Washington Update. Tina Ott Chiappetta Senior Director of Government Affairs . Fair Pay . President Obama’s first law: Lilly Ledbetter Fair Pay Act, Overturns the Supreme Court’s opinion in Lilly Ledbetter v. Goodyear Tire & Rubber Co. Inc. (2007)

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IPMA-HR Eastern Region Conference

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IPMA-HR Eastern Region Conference

Washington Update

Tina Ott Chiappetta

Senior Director of Government Affairs


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Fair Pay

President Obama’s first law:

Lilly Ledbetter Fair Pay Act,

Overturns the Supreme Court’s opinion in Lilly Ledbetter v. Goodyear Tire & Rubber Co. Inc. (2007)

Ledbetter worked for Goodyear for 19 years

Raises based on performance reviews; Ledbetter had several poor reviews

At retirement Ledbetter earned $44,724 – lowest paid male counterpart - $51,432


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Fair Pay

Supreme Court ruled that no discriminatory act had occurred within the 180 days prior to Ledbetter filing the EEOC charge

The performance reviews and pay determinations might have been discriminatory but occurred prior to the 180 days and were time barred


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Fair Pay

Law signed in January – retroactive to May 2007

Eliminates statutes of limitation in cases where compensation is concerned- could include terminations, demotions, denied promotions and possibly pension/retirement plans

Creates new right of action for “aggrieved persons” to file claim without filing an EEOC charge


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Fair Pay

Applies to complaints brought under the ADA and the ADEA as well as Title VII – broader than gender discrimination

HR should review pay practices, examine positions and parity, and develop record keeping practices that allow for longer storage


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Mandatory Collective Bargaining for Public Safety

The Public Safety Employer-Employee Cooperation Act reintroduced as H.R. 413 by Representative Kildee (D-MI) & S. 1611 by Senator Gregg (R-NH)

House bill has 133 co-sponsors

Senate bill has 9 co-sponsors

Bipartisan support

Expected to pass during this session of congress


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Mandatory Collective Bargaining

Requires states and localities to engage in collective bargaining with police, fire and emergency medical technicians

States that do not have collective bargaining laws will have two years to enact one or fall under the FLRA

The FLRA will develop regulations for those states without laws


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Mandatory Collective Bargaining

A state will be exempt from the law if it substantially provides the following:

1. The right of public safety officers to form and join a union which may exclude management/supervisory employees

2. Requires employer to recognize the union (freely chosen by majority of employees), to bargain, to commit agreements to writing


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Mandatory Collective Bargaining

3. Provides the right to bargain over hours, wages and terms and conditions of employment

4. Makes available an interest impasse resolution mechanism such as fact-finding, mediation, arbitration etc.

5. Requires enforcement through administrative agencies and State courts


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Mandatory Collective Bargaining

IPMA-HR has been a leader in the effort to oppose the bills, including testifying before a House subcommittee and meeting with House and Senate staff

Concerns include the federalization of collective bargaining, increased costs, loss of local control over expenditures for public safety , similar request for unionization by other employee groups


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FMLA

One of the most important changes last year was the expansion of the FMLA for military families

Two parts – one allows caregivers 26 weeks of leave per 12 month

period to care for

injured/ill servicemember


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FMLA

Second part allows eligible employees up to 12 weeks of leave for “any qualifying exigency” related to a son/daughter, spouse or parent’s call to active duty

Became effective January 16, 2009


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FMLA

The Department of Labor also revised the current regulations making many changes to the notice and certification provisions

Department said it lacked the authority to address the definition of a serious health condition or the use of intermittent leave

Sample policies available on the IPMA-HR Center website


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Some of the changes to the regulations include:

  • Employers can provide perfect attendance awards without running afoul of the FMLA

  • Holidays occurring within a full week of FMLA leave do not have to be considered

  • HR can contact employee’s health provider directly to clarify or authenticate a medical certification (may not seek additional information)


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Intermittent leave issues

  • Must be medically necessary and certification must indicate that it is medically necessary

  • Increments same as used for other types of leave as long as not more than one hour. No need to account for time in 15 or 6 minute increments

  • Employee must make a reasonable effort to schedule leave so as not to unduly disrupt employer’s operations


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Bill introduced to repeal the regulations – FMLA Restoration Act, H.R. 2161, introduced April 29

FMLA expansion for all military families in House appropriations bill

The Balancing Act of 2009 (H.R. 3047) has 34 cosponsors introduced June 2009, includes many FMLA expansion bills, the Healthy Families Act & Violence Against Women Act

FMLA Expansion


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ADA Amendments Act

Effective January 1, 2009

More reasonable than the originally proposed ADA Restoration Act

Expands the definition of a disability by specifically rejecting several Supreme Court opinions


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ADA Amendments Act

Amendments lowers the bar an employee must clear to establish ADA protection

Overturns Toyota v. Williams where Supreme Court said a disability must prevent or severely restrict a major life activity

“Substantially limits” should be interpreted broadly


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ADA Amendments Act

ADAAA includes a non-exhaustive list of major life activities and lists major bodily functions that would be covered

Need only show one major life activity impacted – e.g. the ability to think

Disabilities are considered in their untreated states – e.g. if an individual successfully controls her diabetes with insulin she may still be disabled under the law


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ADA Amendments Act

Expands the “regarded as” prong by allowing claims whether or not the disability substantially limits a major life activity

Employers do not have to accommodate under the “regarded as” prong

EEOC expected to issue regulations


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Genetic Nondiscrimination

Genetic Information Nondiscrimination Act (GINA) becomes effective November 2009

Prohibits employers from using genetic information in making decisions related to any terms, conditions, or privileges of employment

Bans the collection of genetic information except in very limited circumstances


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Genetic Nondiscrimination

EEOC issued proposed regulations March 2

IPMA-HR submitted comments that IMLA and the League of MN Cities joined

Urged clarity, examples and a definition of “voluntary” wellness programs that does not interfere with public sector programs

Offered solution to problem of post-offer medical exams – doctors do not share information with employers


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Genetic Nondiscrimination

Law prohibits retaliation and regulations may also prohibit harassment

Damages same as under Title VII


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Currently employer-provided cell phones are considered a taxable benefit if used for personal calls. Employees must track calls and pay for individual calls as well as a pro rata share of the monthly fee

IRS changed its position and in a statement on June 16, 2009 asked Congress to change the law so that cell phones are no longer taxable benefits

Cell Phone Policy


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Healthy Families Act

  • H.R. 2460, S. 1152 require employers with 15+ employees to provide a minimum of one hour of paid sick leave for every 30 hours worked to a maximum of 56 hours per year

  • Issues include part-time employee benefits

  • Imposition of federal notification requirements

  • For example: no doctor’s note unless absence of 3 days or more – commencement of leave cannot be delayed


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Mandatory OSHA

  • The “Protecting America’s Workers Act of 2009”  (H.R. 2067) was considered before the House Education and Labor Committee.

  • Would require OSHA coverage for all state and local employees – currently about half the states have opted to be covered by the federal standards

  • IPMA-HR and other public sector organizations are working to oppose this unfunded mandate.


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Employment Nondiscrimination Act

ENDA reintroduced in House & Senate (H.R. 3017, S. 1584)

Last session, ENDA passed the House by a vote of 235-184 not voted on in the Senate

Prohibits employers from discriminating against individuals based on sexual orientation – provision relating to gender identity was dropped

This bill has the support of some major business groups

Increases its prospects for passage


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Healthcare Reform

Target date for healthcare reform: prior to Thanksgiving recess

IPMA-HR has started a healthcare taskforce to advise the association on various proposals

Basic elements: employer pay-or-play mandate, an individual mandate, federal subsidies for lower-income individuals and a public plan option


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Supreme Court

Supreme Court ruled January 26, 2009 that Title VII’s anti-retaliation provisions are triggered by an employer’s internal investigation

Court unanimously overturned 6th Circuit and remanded for further proceedings

Crawford v. Metro Government of Nashville and Davidson City, TN, Docket No. 06-1595


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On April 1, Court ruled 5-4 that mandatory arbitration clause in a collective bargaining agreement requiring arbitration of age discrimination claims is valid

An employee alleging age discrimination must arbitrate claim – cannot take case directly to court

Impact: Arbitrators are largely seen as more employer-friendly and employees likely to have more difficult time pursuing age discrimination claims

14 Penn Plaza LLC v. Pyett, Docket No. 07-581

Supreme Court


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Court ruled 5-4 in favor of the firefighters in case: Ricci et al. v. DeStefano, Docket No. 07-1428

Court found that the City of New Haven, Connecticut violated Title VII’s disparate treatment provisions

IPMA-HR filed a brief in support of New Haven

Supreme Court


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Impact of the decision: employers they cannot reject test scores that have disparate impact unless evidence that test was discriminatory

Employers have greater exposure to liability

Supreme Court


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Additional Information

Contact Tina Chiappetta, Senior Director of Government Affairs & Communications

[email protected]

703/549-7100


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