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What's New In Employment Law For 2010? Changes In Workplace Law You Need To Know February 9, 2010. Freeman Mathis & Gary, LLP 100 Galleria Parkway SE Suite 1600 Atlanta, GA 30339. EEOC CHARGES. 2006 75,768 2007 82,792 2008 95,402 2009 93,277.

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what s new in employment law for 2010 changes in workplace law you need to know february 9 2010

What's New In Employment Law For 2010?Changes In Workplace Law You Need To KnowFebruary 9, 2010

Freeman Mathis & Gary, LLP

100 Galleria Parkway SE

Suite 1600

Atlanta, GA 30339

eeoc charges
EEOC CHARGES

2006 75,768

2007 82,792

2008 95,402

2009 93,277

flsa claims are increasing in the northern district of georgia
FLSA CLAIMS ARE INCREASING IN THE NORTHERN DISTRICT OF GEORGIA

2009

140 FLSA Northern District

28 FLSA Middle District

1 FLSA Southern District

2008

101 Northern District

14 Middle District

8 Southern District

2007

62 Northern District

36 Middle District

7 Southern District

2006

44 Northern District

7 Middle District

14 Southern District

trends in class suits
Trends in Class Suits

FLSA class action have increased nationally

FLSA class actions suits most filed employment class action suits

Settlements are enormous: check exempt employee classifications / meal periods / salary deductions

nlra cases
NLRA Cases

Private Representation Elections

588 in first half of 2009, representing 23,343 workers

813 in first half of 2008, representing 35,144 workers

Unions won over 73% of elections in first half of 2009.

Up from 66% in 2008.

ULP Cases

22,941 in 2009

22,497 in 2008

22,331 in 2007

changes you need to know about
Changes You Need To Know About

COBRA subsidy extended

GINA effective, and proposed regulations

FMLA military definitions expanded

New NLRA Board: What to Expect

Executive Orders Covering Construction

cobra subsidy
COBRA Subsidy

Employer pays for 65% subsidy and receives special tax deduction

Subsidy was to end on Nov. 30, 2009

Congress has now extended and expanded the COBRA subsidy

new cobra subsidy
New COBRA Subsidy

NOW:

Employees terminated by February 28, 2010 eligible

Benefits extended from 9 months to 15 months

New retroactive provision: employees under old 9 month provision have 60 days to extend coverage to 15 months

Employee has 30 days to pay unpaid premiums

Notice of extended benefits must be sent within 90 days

gina and its regulations
GINA and its regulations

Prohibits discrimination in group health insurance and in employment on the basis of “genetic information”

”Genetic information” includes:

genetic tests

family medical history

request/receipt of genetic services

genetic information of a fetus/embryo of an individual or his or her family.

gina cont d
GINA, cont’d

GINA prohibits employers from discriminating in all privileges of employment

Cannot limit, segregate or reclassify employees because of genetic information

Example: an employer who learns that an employee has a family history of heart disease cannot then reclassify that employee to a less stressful position.

Prohibits retaliation

gina cont d13
GINA, cont’d

GINA is enforced by the EEOC, and incorporates the damage provisions of Title VII, including the damage caps.

No cause of action for disparate impact

fmla expanded
FMLA Expanded

October 28, 2009, President Obama signed the National Defense Authorization Act of 2010

Hidden in bill was expansion of 2008 FMLA amendments for military personnel

2 major changes affect the scope of military exigency leave and military caregiver leave.

exigency leave
Exigency Leave

Family of a member of the Reserves, National Guard or a member on active duty military may take leave for a “qualifying exigency.”

Eliminated requirement of a “contingency operation”

Expanded to cover family of active duty as well as reserve members

Family exigency covers several including:

dealing with short-notice deployment

attending military ceremonies

attending childcare and school activities due to a family members deployment, etc.

military caregiver leave
Military Caregiver Leave

Now, covers leave when service aggravated a pre-existing condition

Now covers family members of veterans

Before, covered returning military member injured while serving.

Covers treatment for injuries up to 5 years after active service

Family members are: spouse, son, daughter, parent, or next of kin

All of these changes were effective immediately.

new nlrb members
New NLRB Members?

President Obama has nominated three new members to sit on the NLRB

Craig Becker

Associate General Counsel for the Service Employees International Union

Senate refused to confirm Becker on December 24, 2009.

Mark G. Pearce

Attorney who represents Unions

Formerly worked in Buffalo’s NLRB office

Represented Union leaders who embezzled from the Unions

Brian E. Hayes

Republican Committee Staff Member

nlrb cont
NLRB, cont.

If all three are affirmed, joining sitting members Chairman Wilma B. Liebman and member Peter C. Schamber, this would be the first full board since December 2007.

Courts have upheld decisions made by the current 2 member board

three pro labor executive orders
Three Pro-Labor Executive Orders

EO 13494

Service Contract Act successor employers must make job offers to prior employers union employees

Contract must be for the same or similar services at the same location

Predecessor contractor must provide list of service employees working within the last month of performance 10 days prior to contract completion

Enforcement regulations to be issued

EO 13495

Federal contractors and subcontractors prohibited from being reimbursed for the costs of activities undertaken to persuade or dissuade employees from exercising rights to collectively bargain

Enforcement regulations to be issued

slide20
EO 13496

Revoked President Bush’s “Beck” order, which required federal contractors to inform employees of their right to refuse to pay union dues for non-collective bargaining activities.

Requires federal contractors to post a notice of employees rights

Proposed rule requires lengthy notice regarding employees rights in a conspicuous place and contracts and subcontracts must include clause ensuring compliance

Rule and the notice not yet finalized; Expect final rule during the summer

major changes in nlrb precedent
Major Changes In NLRB Precedent

Bush era precedents at risk:

representation rights extended to non-union employees during investigatory interviews

Stricter rules regarding a company’s right to restrict employee use of email for union related solicitation

Broader Section 7 (concerted activity) rights

Limited rights to seek de-certification if an employer voluntarily recognizes a union

slide22
Expect bargaining units to include both contingent and temporary employees, as well as regular employees without the consent of all employers (such as the temporary staffing agency)

Stronger protections for union salts

Greater reinstatement rights for economic strikers

medicare
Medicare

Medicare pays health care of enrolled individuals age 65 and older, certain disabled individuals, and those with permanent kidney failure

Medicare is the “secondary payer” for health care costs when there is another plan that pays for the costs (group health plan, liability insurance, workers’ compensation)

mmsea section 111
MMSEA Section 111

Creates new reporting requirements to provide government with information to ensure that Medicare is secondary payer

Reporting can be performed through an agent, such as a third party administrator, but liability remains with the responsible reporting entity

There are penalties for noncompliance

who must report
Who Must Report?

Responsible Reporting Entities :

Liability insurance (including self-insurance)

No fault insurance

Workers compensation programs

Is Your Company An RRE?

Fully insured with no deductible: insurer is the RRE

Insured with a deductible:

If insurer pays deductible directly to claimant and is reimbursed by business, then insurance carrier is the RRE

If business pays deductible directly to claimant, then it is the RRE with respect to the deductible amount

what must be reported
What Must Be Reported?

An RRE must report claims where:

An injured party is or was a Medicare beneficiary; and

The claims are resolved (fully or partially) through settlement, judgment, award, or payment.

Must report the identity of the Medicare beneficiary and “other information to be determined by the Secretary

section 111 registration
Section 111 Registration

Deadline was December 31, 2009

Go to www.Section111.cms.hhs.gov

Name an authorized representative

Person with authority to bind company

Normally someone at executive level

Name an account manager

Manages overall reporting process

Can be employee or agent of company

Sign verification and return to CMS

e verify agenda
E-Verify Agenda

I-9 Refresher

E-Verify Requirements for Federal Contractors

Timing

Existing employee

Tentative Non-Confirmations

Voluntary Compliance

E-Verify Requirements for Georgia State Contractors

Resources

e verify
E-Verify
  • Creates rebuttable presumption that employer did not knowingly hire an unauthorized worker
i 9 update
I-9 Update

Changes to the I-9 process:

SSN required in Section 1

List B documents must contain photographs

Employers must retain copies of LPR/EAD cards

E-Verify queries (based upon completed Forms I-9) must be submitted by the third day of work

e verify updates for federal contractors
E-Verify Updates for Federal Contractors

Executive Order 12989

Requires federal contractors/subs to use E-Verify for:

All new hires nationwide;

Existing employees “assigned to the [federal] contract”

Prime Contractor Exemptions

Less than $100,000

Fewer than 120 days

Outside the U.S.

COTS (off shelf items)

Contract Clause Flows To Subs:

If E-Verify clause is in main contract

More than $3,000

federal contractor requirements
Federal Contractor Requirements

September 8, 2009: Contracts will include E-Verify clause if government finds contract subject to requirement

30 days from contract award: Employer must register with E-Verify

90 days from registration:

All new hires (nationwide) must be submitted within 3 business days of date of hire

All existing employees assigned to the contract must be submitted

Employees assigned to the contract at a later date must be submitted within 30 days from the date of their assignment

federal contractor requirements33
Federal Contractor Requirements

Employers already registered for E-Verify must update status profile to federal contractor

Cannot update profiles unless and until employer enters into a contract including the E-Verify requirement

Once contract obligations are complete:

Update profile to indicate that no longer a federal contractor

May remain registered on volunteer basis (using E-Verify only for new hires); or

End participation in E-Verify

federal contractors existing employees
Federal Contractors -Existing Employees

Who is an “employee assigned to the contract”?

Hired after 11/6/1986

Performing directly contract work

In the United States

Under a contract containing the E-Verify clause

Who is not an “employee assigned to the contract”?

An employee who normally performs support work, such as indirect or overhead functions; and

Who does not perform any substantial duties applicable to the contract

voluntary e verify for entire workforce
Voluntary E-Verify for Entire Workforce

Federal Contractors Only

Employers can submit all existing employees working in the U.S. who were hired after 11/6/1986

Must notify DHS of this decision and initiate queries for all existing employees within 180 days of such notification

resolving e verify cases
Resolving E-Verify Cases

Initial verification results will be:

Employment authorized

SSA Tentative Nonconfirmation (TNC)

DHS Verification in Process

Handling a TNC

Inform the employee of the TNC

Print the TNC notice and review it with the employee

The employee decides whether to contest the TNC

If the employee does not contest the TNC, they are terminated

If the employee contests the TNC, refer them to the appropriate agency

resolving e verify cases37
Resolving E-Verify Cases

Employee has 8 Federal Government workdays from referral date to visit or call appropriate agency and resolve discrepancy

Employee must be allowed to continue working as usual during the TNC resolution process

Employers may not take any adverse action based on the TNC during the resolution process

Employee should inform you when discrepancy is resolved

Take appropriate action based on the verification result and resolve the case in E-Verify

georgia law e verify
Georgia Law: E-Verify

Every public employer must E-Verify all newly hired employees

All “contractors” of public employers must verify all new hires

Employers performing “physical . . . Services within the state”

Attorney General’s Opinion: Contractors consist of any employer performing work within the state of Georgia

Public employers must obtain written confirmation that all contractors are registered for and actively using E-Verify

social security no match letters back to square one
Social Security No-Match Letters: Back to Square One

2007: Department of Homeland Security (DHS) issues guidelines for confronting no-match letters from the Social Security Administration (SSA)

2008: no-match rules are enjoined by federal court and SSA ceases sending no-match letters

2009: Obama administration announces it will abandon proposed no-match rules

2010: Employers must determine what steps to take upon receipt of an SSA no-match letter

the adaaa what s next
The ADAAA – What’s Next?

Regulations interpreting the ADAAA

Employer focus on reasonable accommodation process

Increased scrutiny of internal leave policies by EEOC

proposed adaaa regulations
Proposed ADAAA Regulations

ADAAA became effective January 1, 2009

Changes applied to the statute, but not the interpreting regulations

EEOC has proposed regulations

highlights of proposed adaaa regulations
Highlights of Proposed ADAAA Regulations

“Disability” - term is construed broadly, to maximum extent permitted by the ADA

“Major life activities” – current list expanded, new category added for bodily functions

highlights of proposed adaaa regulations43
Highlights of Proposed ADAAA Regulations

“Substantially limited”

Focus on what “most people” are capable of doing, using common-sense notions

Mitigating measures are not considered in determining substantial limitation

highlights of proposed adaaa regulations44
Highlights of Proposed ADAAA Regulations

“Substantially limited”

Impairment that is episodic or in remission (multiple sclerosis, epilepsy, bipolar disorder) is covered if substantially limiting when active

Examples of specific impairments that may or may not meet “disability” definition included

highlights of proposed adaaa regulations45
Highlights of Proposed ADAAA Regulations

“Regarded as”

Employer now does not have to perceive impairment as substantially limiting (except when minor and lasting less than 6 months)

reasonable accommodations
Reasonable Accommodations

Definition of “disability” expanded

More individuals will be considered disabled under new definition

Focus will be on providing reasonable accommodation and interactive process

Applies to employees and applicants

interactive process
Interactive Process

Communicate With Employee About Need for Accommodation

Clear Understanding of Medical Condition Requiring Accommodation

Involve Persons Who Know Job

Evaluate Essential Job Functions + Job Description

Evaluate Options for Accommodation

Consider Current Medical Documentation

Make Decision and Document It

Communicate Decision To Employee

documentation of process and decision
Documentation of Process and Decision

Attempted Contact

Communications and Dates

Options Considered and Rejected and Reasons

Legitimate Reasons To Deny Accommodation Request

Not a legal disability requiring an accommodation

Will not enable employee to perform the essential functions of the job

Requires removal of an essential job function

Failure to provide requested medical documentation

Poses undue hardship

Employee is Direct Threat to Self or Others

internal leave policies
Internal Leave Policies

Extended leave can be reasonable accommodation

Many leave policies (FMLA, worker’s compensation) provide set leave period and permit termination if employee fails to return to work after leave

internal leave policies50
Internal Leave Policies

Employers can’t set arbitrary leave period and automatically terminate employee when leave expires – this sidesteps interactive process

Policies must allow for consideration of extended leave as accommodation if employee has covered disability under ADAAA

FMLA, workers’ compensation, LTD, STD

internal leave policies51
Internal Leave Policies

Indefinite leave is not required

internal leave policies52
Internal Leave Policies

EEOC lawsuits

Sears

Worker’s compensation policy did not allow employees to take additional leave as accommodation

Settlement: $6.2 million (largest settlement by EEOC for single lawsuit), amend worker’s comp policy, train employees

UPS

Leave policy provided for termination upon expiration of 12-month leave period

Class action

Case is still pending

restrictive covenants a quick refresher
Restrictive Covenants (a quick refresher)

Restrictive Covenants

Contractual Restrictions on post-employment activities

Non-competition provision

Non-solicitation of customers provision

Non-solicitation of employees provision

Non-disclosure/confidentiality provision

Statutory Obligations

Georgia Trade Secrets Act of 1993

restrictive covenants a quick refresher54
Restrictive Covenants(a quick refresher)

Non-competition provision

Three prong test

Scope of activity

Geographic territory

Duration

Non-solicitation of customers provision

Three prong test

Persons who can’t be solicited

Scope of restriction

Duration

restrictive covenants a quick refresher55
Restrictive Covenants(a quick refresher)

Non-disclosure/confidentiality

Property of employer

Peculiar to employer’s business

Of such nature that its disclosure or use would cause injury to employer

With temporal limitation (usually 3 years or less)

Possesses element of secrecy to employer specifically, and not generally to the trade

efforts to protect secrecy
Efforts to Protect Secrecy

Element of secrecy: essential for enforcement of non-disclosure provision and coverage under trade secrets act

Paramount Tax & Accounting v. H&R Block (Ga. App. 2009)

Reasonable efforts to maintain secrecy

Access to information is limited

Password protected

Distribution is limited

Confidential Information policy

Non-disclosure agreement

compliance as condition precedent
Compliance as Condition Precedent

Stannard v. Allegis Group, Inc. (N.D. Ga. 2009)

Condition payment of post-employment compensation

Be extremely clear --- “on the condition that” or “provided that”

restrictive covenants is help on the way for employers
Restrictive Covenants – Is Help On The Way For Employers

House Bill 173

Passed by the Georgia legislature and signed by Perdue in 2009

Next step: referendum in November, 2010 general election to amend Georgia Constitution

restrictive covenants is help on the way for employers59
Restrictive Covenants – Is Help On The Way For Employers

House Bill 173

Non-Compete: more liberal construction of:

scope of geographic territory/scope of activities

Non-Solicitation of Customers: more liberal construction of:

Scope of prohibited customers

Non-Disclosure: duration potentially limitless

Courts have authority to modify

title vii
Title VII

Hostile Work Environment:

Belongs to a protected group

Subjected to unwelcome sexual harassment

Harassment was based upon sex

Harassment sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment

Factors: Persistent, severe, unreasonable interference, physically threatening

Objective and subjective components

Basis for holding the employer liable

Two categories of harassment

Disparate treatment

Disparate impact

title vii61
Title VII

Two new Cases in the 11th Circuit with drastically different results:

Corbitt v. Home Depot U.S.A., Inc., 573 F.3d 1223, 1239 (11th Cir. 2009)

Reeves v. C.H. Robinson Worldwide, Inc., 2010 WL 174074 (C.A. 11 Ala., 2010)

title vii62
Title VII

Corbitt v. Home Depot U.S.A., Inc.,: Corbitt and Raya, two male former store managers filed suit against the company claiming that Cavaluzzi, their male supervisor, harassed them based on their sex when he made sexual comments to them in person and over the phone and touched them in a sexual manner.

title vii63
Title VII

Corbitt court:

Behavior inappropriate, but would not have been offensive to a reasonable person

Flirtation is part of ordinary socializing in the workplace and not to be mistaken for discriminatory conditions of employment

title vii64
Title VII

Reeves v. C.H. Robinson Worldwide, Inc.: Ms. Reeves alleged that her nearly all-male workplace was riddled with insulting comments targeting women (i.e., “bitch,” “whore,” the “f” word, and the “c” word), though none of the comments were made directly to her.

title vii65
Title VII

Reeves court:

Conduct in question was based on the plaintiff’s sex

Evidence of gender-specific, derogatory comments made about women on account of their sex

Male co-workers not subjected to same disadvantageous terms or conditions of employment

title vii66
Title VII

What these cases mean to You

Reeves: Plaintiff can show hostile work environment even if not individually singled out

Highlights need for comprehensive harassment and discrimination policies

Demonstrates the importance of clear complaint procedures

No retaliation for reporting unlawful conduct

Must establish concrete disciplinary policies