Employment Law 2009 in Review... and a Look Forward

Roger Kaplan
December 18, 2009 — 2,352 views  
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The following is a brief review of significant 2009 workplace law developments.  Although a comprehensive treatment of all noteworthy changes is beyond the scope of this summary, we hope this retrospective will assist our readers.  (For monthly updates, register at our website to receive free e-mail delivery of Preventive Strategies Online Workplace Law News to have our legal updates sent to your inbox.)

New President … New Laws
One of President Barack Obama’s first presidential acts was to sign into law the Lilly Ledbetter Fair Pay Act.  The new law extended the time within which employees can bring claims for pay discrimination.  (See Lilly Ledbetter Fair Pay Act of 2009 Becomes Law.)  President Obama also very quickly signed three Executive Orders on January 30, 2009, that some describe as aimed at reversing Bush-era rules that critics viewed as “anti-union.” (See President Signs Three Pro-Union Executive Orders.)

The American Recovery and Reinvestment Act of 2009 (ARRA) went into effect in February to provide reductions in health insurance premiums and additional opportunities to elect continued group health coverage under COBRA for employees who became eligible for coverage as a result of an involuntary termination of employment between September 1, 2008, and December 31, 2009. (See COBRA Premium Subsidies Notice Requirements and Action Plan.)  Extending the number of months of COBRA premium assistance for those currently eligible and making the subsidy available to people laid off through June 30, 2010, were proposed in the House (H.R. 3930) and Senate (S. 2730).

The Genetic Information Non-Disclosure Act (GINA) became effective on November 21, 2009.  This made illegal discrimination against employees on the basis of genetic information, which is defined broadly by the EEOC’s regulations.  (See New GINA Regulations Would Affect Certain Group Health Plans, Wellness Programs.)

Regulations Everywhere
The Department of Labor issued new, extensive regulations to the Family and Medical Leave Act that include the elimination of provisional designation of leave and the addition of two new types of leave.  Both employers and employees are held to stricter deadlines for notice of rights, submission of medical certification, and designation of leave.  (View Complimentary Webinar on the new regulations.)  Military families have been given additional FMLA coverage.  (See President Signs Expansion of FMLA Coverage for Military Families.)

The Equal Employment Opportunity Commission published proposed regulations to implement the Americans with Disabilities Act Amendments Act of 2008, after the ADAAA went into effect on January 1, 2009, expanding the statutory definition of disability. (See EEOC to Release Proposed ADA Amendments Act Regulations.) Final regulations have not been published as of this writing.

After much delay, the federal contractors were mandated to use E-Verify to confirm the employment eligibility of their employees.  (See USCIS Reminds Federal Contractors E-Verify Rule Goes into Effect Sept. 8, 2009.)

U.S. Supreme Court
The Supreme Court handed down a number of sharply divided, employment-related opinions.  Here are a few of them.  In 14 Penn Plaza v. Pyett, a 5-4 decision, the Court held enforceable a provision in a collective-bargaining agreement that “clearly and unmistakably” compels union members to arbitrate Age Discrimination in Employment Act (ADEA) claims. (See Supreme Court Holds Arbitration Provision in CBA May Bar Employee Federal Age Claims in Court.)

In Ricci v. DeStefano, the Supreme Court held that the City of New Haven improperly discriminated on the basis of race when it refused to certify the results of a promotional test on which white and Hispanic firefighters outperformed their black colleagues.  Writing on behalf of the 5-justice majority, Justice Kennedy said, “[R]ace-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.”  (See Supreme Court Rules for White Firefighters in Bias Claim.)

Finally, in Gross v. FBL Financial Services, the Court ruled 5-4 that a plaintiff asserting a claim under the Age Discrimination in Employment Act must prove age discrimination was the “but-for” cause of an adverse employment action.  (See Supreme Court Rules ADEA Plaintiffs are Not Entitled to “Mixed Motive” Instruction.)  This decision has been criticized by politicians and advocacy groups as making it more difficult for plaintiffs to prevail on age discrimination claims.  Legislation has been introduced in Congress to overturn it.  (See Congress Introduces Legislation to Overturn Supreme Court Age Discrimination Decision.)

A Look Ahead
Organized labor has been eager for Congress to pass the Employee Free Choice Act (H.R. 1409/S. 560), a measure that would make it easier for unions to organize.  (See our EFCA website and EFCA & Labor Reform Blog.)  However, even with the support of Congressional Democrats and President Obama, the bill has taken a back seat to the health care reform debate.  Many predict that EFCA will return to the spotlight as the White House and Congress shift focus to job creation and the economy.

With at least three bills under consideration, Congress seems set on requiring employers to provide employees with paid sick leave.  (See Paid Sick Leave Remaining in Focus, Congress Weighs Alternative Measures.)  If any of these measures passes, most employers’ paid time off (PTO) policies would be affected.

The Supreme Court will decide at least eight employment-related cases before it goes on summer break at the close of the 2009 Term.  The cases range from whether the Federal Arbitration Act allows imposing class arbitration on parties whose arbitration agreements are silent on the issue, to whether Title VII’s statute of limitations is measured from announcement, or use, of an unlawful practice, to whether the National Labor Relations Board is authorized to act when only two of its five positions are filled (see U.S. Supreme Court to Decide Appeals Court Conflict Over NLRB Quorum). 

The year 2010 will likely be a challenging one for employers, but your Jackson Lewis attorneys are ready to assist you.

© 2007 Jackson Lewis LLP. Reprinted with permission. Originally published at www.jacksonlewis.com. Jackson Lewis LLP is a national workplace law firm with offices nationwide.

Roger Kaplan

Jackson Lewis LLP