Employment Law 2009: The Perfect Storm, Part 2
As we move through 2009, I anticipate a great deal of activity on the employment front, both in Congress and in the courts. There are a number of proposed new employment laws that have high priority with the current administration. These include:
Employment Non-Discrimination Act (ENDA): This bill prohibits discrimination based on sexual orientation. There is a possibility that this bill would also prohibit transgender and bisexual discrimination.
Healthy Families Act: This bill would require employers to pay for 7 sick days a year. There must be 15 or more employees working at the business to be covered.
Employee Free Choice Act (EFCA): I wrote about this in detail in my January 30 blog entry. This bill would effectively replace the secret ballot in union elections and replace it with a card check process.
Civil Rights Act of 2008: This bill has many components, the most important of which are: a) Remove the damage caps currently in existence under Title VII and the ADA; b) add compensatory and punitive damages under the FLSA; c) prohibit arbitration in employment related cases unless the employee agrees to arbitration after the dispute has arisen; and d) allow employees to recover expenses even if they are not the prevailing party in a lawsuit in all respects.
FOREWARN Act: this act would amend the Warn Act to apply to employers with 50 or more employees, instead of 100, and would require 90 days notice of plant closings or mass layoffs instead of the current 60 days. At the present time, the WARN act's provisions concerning mass layoffs apply to employers with 500 or more employees: FOREWARN would reduce this number to 100.
I anticipate the courts, especially the District Courts, will be busy in 2009 and 2010. They will be busy looking at the ADAAA, the new FMLA regulations and other new laws that may be passed by Congress. The Supreme Court, which has already decided two employment related cases so far this year, has agreed to hear oral argument in the case of Ricci v. DeStefano, which deals with a reverse discrimination claim and whether a municipality can decline to certify results of a civil service exam that would make disproportionately more white applicants eligible for promotion than minority applicants. The white and Hispanic plaintiffs claim they would have been promoted if the city did not invalidate the test results because no black candidate scored high enough to be promoted. The Supreme Court will decide the following question:
Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.
Practice Pointer. Employers need to stay on top of the new laws and changes in existing laws as we move through 2009. To that end, my law firm, Sirote & Permutt is hosting a free seminar, addressing the anticipated changes in employment law. The seminar will be held on February 25, 2009 from 11:30 am to 1:00 pm at Vulcan Park in Birmingham. If you are interested in attending, please click here to view the invitation and make your reservation. Space is limited.
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