Employment Law 2009: The Perfect Storm, Part 1
As we enter 2009, a perfect storm is brewing for changes in the employment arena. A worsening economy. A new Democratic President. Both houses of Congress controlled by Democrats. An active Supreme Court. An FDR depression era type stimulus plan. Part 1 of The Perfect Storm will focus on what has already happened in 2009. Part 2, to follow later this week, will focus on what may happen for the remainder of the year.
The Americans With Disabilities Amendment Act of 2009 became effective on January 1, 2009. The new regulations for the Family Medical Leave Act became effective several weeks ago.
President Obama has been active, signing 3 Executive Orders on Friday, January 30, 2009 addressing Labor and Employment issues. The "Notification of Employee Rights Under Federal Labor Laws" requires federal government contractors to post, in "conspicuous places", a notice informing employees that they have the right to join, or not join, a union. The "Economy in Government Contracting" Executive Order prohibits Federal Contractors from obtaining reimbursement for funds expended to "persuade employees-whether employees of the recipient of the Federal disbursements or of any other entity-to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively through representatives of the employees' own choosing." The third Executive Order, "Nondisplacement of Qualified Workers Under Service Contracts", states that service contracts "shall include a clause that requires the contractor, and its subcontractors, under a contract that succeeds a contract for performance of the same or similar services at the same location, to offer those employees (other than managerial and supervisory employees)... a right of first refusal of employment under the contract in positions for which they are qualified." And as previously posted on my blog, President Obama signed the Lilly Ledbetter Equal Pay Act into law.
The United States Supreme Court has been active also, issuing 2 opinions dealing with employment issues. As discussed last week in my blog, in the Crawford case, the court dealt with retaliation against a participant in an internal investigation. In Fitzgerald v. Barnstable School Committee, a peer on peer sexual harassment case, the Court found that claims can be brought under both Title IX and Section 1983.
On the immigration front, the implementation of the new I-9 forms that were supposed to be effective as of today, February 2, 2009 has been delayed until April 3, 2009. And as a reminder as to the consequences of employing undocumented workers, Beverly Linan, who owned and operated Rodriquez Construction Company in Alabaster, Alabama, was indicted last week in Federal Court in a 3 count indictment " charging harboring of illegal aliens, knowingly employing illegal aliens and a forfeiture count to recover profits made from employing illegal aliens, according a news release."
Part 2 of The Perfect Storm, which will be published later this week, will address what we can expect on the legislative and judicial fronts for the remainder of the year.
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