Employment Law 2009: The Perfect Storm, Part 3

Posted on February 11, 2009 by Daniel Burnick

This is the third entry in a series addressing issues that may arise in 2009.  This entry  will focus on employment trends, both in Alabama and nationwide. 

In a recent report in the Birmingham News concerning union participation, figures from the  Bureau of Labor Statistics show that  the number of Alabama workers who are union members barely increased in from 180,000 in 2007 to 181,000 in 2008.   In 2007,  9.8%, of Alabama's workforce was represented by unions.  This number increased sligtly to 10.7% in 2009.  The percentage of union workers in Alabama was tops in the Southeast, ahead of Florida (7.9%), Mississippi (7.3%), Tennessee (6.6%) and Georgia (4.6%).  I anticipate that these numbers will increase in 2009 and 2010, and the increase may be significant if the Employee Free Choice Act becomes law.

The Bureau of Labor Statistics reported that in 2008 a total of 2,394,434 workers were laid off, with 226,117 being laid off in December.  With more companies announcing layoffs, such as GM and Wal-Mart this week, it appears as if 2009 will continue to be a bad year for workers losing their jobs.  Alabama workers are not immune:  so far this year, at least 10 large Alabama employers have notifed the state that they intend to terminate approximately 1,700 employees from ther jobs.  Most recently, Graphic Packaging International in Tuscaloosa, announced this week that it is planning on laying off 90 workers later in 2009.

Several weeks ago,  the New York TImes ran a story entitled "Layoffs Herald a Heday for Employee Lawsuits", concluding that many of the newly terminated employees will head to the EEOC or attorneys to pursue legal action. 

Practice Pointer.  As more employees are terminated from their jobs, I anticipate that there will be an increase in claims and lawsuits, especially since they will have difficulty finding new jobs in this tight job market.  Employers need to update their policies and procedures to comply with existing and new employment laws, train the managerial and supervisory staff as to the laws and the company's policies, and treat their employees as fairly as possible during these difficult times.

 

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Employment Law 2009: The Perfect Storm, Part 2

Posted on February 3, 2009 by Daniel Burnick

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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Employment Law 2009: The Perfect Storm, Part 1

Posted on February 2, 2009 by Daniel Burnick

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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