Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

The Delaware Employment Law Blog recently updated its list of the Top 100 Employment Law blogs.  I am glad to announce that the Alabama Employment Law Report is part of this list.  The top 100 list is a great source of information for the newest updates on what is happening in employment law around the country.

On another note, I will be on vacation next week, with little or no access to email or voicemail.  As such, I will not be publishing any entries next week.  I wish all of you a Happy Thanksgiving as we reflect on and give thanks for all the good things that are part of our lives, family, friends, co-workers and other things that are so important to each of us. 

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Congress's latest employment law becomes effective on Saturday, November 21, 2009.  The Genetic Information Nondiscrimination Act (GINA) is designed to ban the misuse of genetic testing in the workplace.  GINA prohibits employers from requesting genetic testing or considering someone's genetic background in hiring, firing, disciplining or promoting.  Insurance companies will also be prohibited from requiring genetic testing, and cannot use genetic history, such as a history of heart disease or cancer to deny coverage or set the amount of premiums or deductibles.  Genetic information includes not only the individual's medical history, but also that of his/her family.  The law applies to health insurers, but not life insurers.  GINA applies to any employer with 15 or more employees.  The EEOC has released the revised "Equal Employment Opportunity is the Law" poster, which is mandatory for all covered employers. All federal posters need to be replaced to include GINA.

Practice pointer.  GINA is Congress's most recent employment law to take effect.  Like most other laws, the EEOC's interpretation may be different, and much more expansive, than the courts will ultimately interpret GINA to be.  For now, it is important for employers who are covered to replace their EEOC posters, and review and revise all forms/applications, etc. to make sure that the paperwork is in compliance with GINA.   The New York Times published an article addressing GINA on Monday, November 16 discussing the law and it's impact on the workplace. 

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Last week, I had the opportunity to attend the 3rd annual ABA Labor and Employment Law section's annual convention.  Over 1,200 lawyers attended from around the world, and there were many lively presentations and discussions.  Among the highlights:

1.  The Acting Director of the EEOC spoke to the attendees.   Mr. Ishimuru made the following observations:

     The EEOC received a budget increase for FYE 2009, and hired over 250 new employees.

     GINA (Genetic Information Nondiscrimination Act) becomes effective November 21, 2009, and the EEOC is working on proposed regulations: more on this in my blog in the near future.

     The ADAAAA "significantly opens the door to more claims"

     Family Responsibility issues remain "front and center going forward".

     The EEOC is planning on more collaborative efforts with DOJ and DOL

2.  The consensus was that there will be a continued focus on FLSA overtime lawsuits, focusing on tip earners (food servers, sky caps, etc.)  Also discussed was the use of unpaid student interns:  their work may be compensable..

3.  Studies show that 70% of employers are in violation of the FLSA.

4.  Misclassification of workers as independent contractors will be closely scrutinized by DOL.  In 2000, DOL did a study showing between 10-30% were misclassified: a new study is due to come out in 2013 updating this information.

5.  Counsel for the EEOC, in addressing the "substantially limits" language of the ADAAAA, believes that the time period involved would be more than 2 months.

6.  Many companies have a policy that if a worker cannot return to work after one year, for any reason, they are terminated.  The EEOC believes these policies are in violation of the ADAAAA in that the policies indicate a refusal to discuss reasonable accommodations.  Sears recently settled such a claim for $6.2 million.

Practice pointer.  As we are rapidly approaching the end of another year, it is a good time to do an audit of your employment policies and procedures, classification of employees for FLSA purposes, check your records to make sure you have the appropriate forms completed (such as I-9's, employment contracts and non-competes, and any other documents you require) and train your workforce on applicable policies and procedures in your workplace.

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On October 29,2009, President Obama signed into law the  Fiscal Year 2010 National Defense Authorization Act (H.R. 2647).  The new law includes an expansion of the recently enacted exigency and caregiver leave provisions for military families under the FMLA.  In January, 2008, Congress amended the FMLA to provide for Exigency Leave up to 12 weeks of leave for urgent needs related to a reservist family member's (spouse, son daughter or parent) call to active service.  H.R. 2647 expands the exigency leave benefits to include family members of active duty service members.  Under the current law, only family members of National Guard and Reservists were eligible for "exigency leave". 

The FMLA previously provided Caregiver Leave, up to 26 weeks of unpaid leave to an employee to care for a family member (spouse, son, daughter, parent or next of kin) who is injured while serving on active military duty.  H.R. 2647 expands the caregiver leave provision to include veterans who are undergoing medical treatment, recuperation or therapy for serious injury or illness that occurred any time during the five years preceding the date of treatment. 

Practice pointer.  HR must be aware of these changes and be prepared to deal with issues involving the expanded coverage of the FMLA as it applies to exigency leave and caregiver leave. 

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