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January 14, 2010 |
Schiff Hardin Labor and Employment Alert With each new calendar year come new obligations for employers and, sometimes, necessary changes in existing practices. The following article references a number of federal and state laws and amendments that took effect in late 2009 and early 2010, which might impact your policies and procedures. Federal Laws On December 19, 2009 President Obama signed the 2010 Defense Appropriations Act, which contains a provision outlawing most military contractors from having and enforcing pre-dispute mandatory arbitration clauses to resolve issues with employees arising from alleged violations of Title VII of Civil Rights Act of 1964 or tort claims related to or arising out of sexual assault or harassment. Congress pushed to enact this legislation following two highly publicized cases involving former female employees of a division of Haliburton. Both of these women sued the company alleging that each had been raped by co-workers while working in Iraq. The federal district courts had held that at least portions of their complaints were subject to mandatory arbitration based on agreements each woman had signed calling for arbitration of all "employment related" claims. Senator Al Franken, from Minnesota, was a key sponsor of the legislation in the Senate, and one of the former Haliburton employees testified in October before the Senate Judiciary Committee supporting the legislation. While this legislation only impacts military contractors, Congress is also currently considering the Arbitration Fairness Act of 2009, which was introduced in the U.S. Senate on April 29, 2009. It was introduced by Senator Feingold, who had seven co-sponsors. Feingold in a Senate floor speech said that while he had supported alternative dispute resolution procedures including arbitration because litigation can be so costly, it was his belief that such dispute resolution procedures are only fair if they are entered into voluntarily by both parties. Similar legislation was introduced in the House of Representatives in February, 2009. Some observers believe this legislation affecting military contractors may be a precursor to legislation banning mandatory employment arbitration procedures for all employers in the United States. We will keep you apprised of developments on this topic. Effective at the end of October 2009, certain provisions of the FY 2010 National Defense Authorization Act ("NDAA") modified the "Qualifying Exigency" and "Military Caregiver" leave provisions of the Family and Medical Leave Act (FMLA). The NDAA expanded entitlement to Qualifying Exigency leave to eligible employees with family members in the regular armed forces. (The need for Qualifying Exigency can arise when an employee's family member is being deployed; previously only employees with family members in the National Guard or Reserves were covered.) The NDAA also eliminated the FMLA's previous requirement that the family member's call to duty be in support of a contingency operation, expanding coverage to situations where a family member is on covered active duty in a foreign country, or has been notified of an impending call to active duty in a foreign country. The NDAA also expanded the FMLA's 26-week Military Caregiver leave by redefining the term "serious injury or illness," which can facilitate a covered employee's need to take the leave, to include situations where the family member's preexisting illnesses and injuries were aggravated by service in the line of duty, and providing that employees can use the leave to care for injured veterans who served during the previous five years. In light of these modifications, we recommend that you review your existing employee handbooks to ensure that they reflect these new changes.California Laws A number of changes to California's workers' compensation law took effect on January 1, 2010:
Effective January 1, 2010, California law expands the protections of California's existing Hate Crimes Law by including as prohibited activity the hanging of nooses in the workplace and other public places. Penalties for violations of this new provision include imprisonment for up to one year, and civil fines up to $5,000 for the first offense, or up to $15,000 for a repeat offense. The federal 2010 Defense Appropriations Act, signed into law on December 19, 2009 and referenced above, also extended the eligibility period for federal COBRA premium reduction for an additional two months (through Feb. 28, 2010) and the maximum period for receiving the subsidy for an additional six months (from nine to 15 months). While California law has not yet been modified to conform with the extensions provided in the federal bill, such modification is expected, in light of the 2009 Cal-COBRA amendments, which extended the federal COBRA premium subsidy to small businesses eligible for Cal-COBRA, imposed additional notice requirements on health care service plans, contract administrators and insurers of small California employers, and made available a second election opportunity for qualified employees. Illinois Laws Amendments to Illinois's Right to Privacy in the Workplace Act (the "Act") removed the Act's previous restrictions on using electronic employment verification systems (such as the federal E-Verify program). Illinois employers can now enroll in the E-Verify program, but must complete and post a notice of its use of the program. The amended Act also prohibits employers from using the program to verify eligibility prior to hiring the employee and prior to the time the employee completes the Form I-9. It also prohibits employers from terminating or taking any other adverse employment action against an employee prior to receiving a final non-confirmation notice from the Social Security Administration or the Department of Homeland Security. These amendments became effective on January 1, 2010. Pursuant to an amendment to the Human Rights Act that became effective on January 1, 2010, Illinois employers are now prohibited from discriminating against an individual on the basis of "order of protection status." "Order of protection status" refers to a person's status as being a person protected under an order of protection issued pursuant to the Illinois Domestic Violence Act of 1986 or an order of protection issued by a court of another state. This amendment adds to the protections for victims of domestic and sexual violence under Illinois Victims' Economic Security and Safety Act ("VESSA"), which was modified in August 2009 to provide broader coverage and enhanced protections. With those modifications, Illinois employers with at least 15 but no more than 49 employees must provide a total of eight weeks of unpaid leave during any 12-month period to employees who need to address issues pertaining to domestic or sexual violence. (Employers with 50 or more employees were already covered under VESSA, and must provide at least 12 weeks of unpaid leave during a 12-month period.) Also, covered employers must now make reasonable accommodations for employees who are victims of domestic or sexual violence, unless doing so would impose an undue hardship on the employer. We recommend that you review your existing employee handbooks to ensure that they reflect these new changes. New York Laws Pursuant to an amendment to New York Labor Law that took effect October 26, 2009, employers in New York are required to provide written notice to newly hired employees — before they start working — of the employee's regular pay date and regular rate of pay, and, for employees entitled to receive overtime pay, the hourly rate and overtime rate. Under the statute, employers must also obtain a written acknowledgement of such notice from each employee in a manner conforming to the specific requirements promulgated by the New York Labor Commissioner. The New York State Department of Labor (the "Department") has recently published its guidelines, model notice instructions, and model "Notice and Acknowledgement" forms that employers can use to comply with the provisions of the new law, available on the Department's Web site. The model forms include notices for a variety of payment arrangements, including:
The Web site also includes guidelines and a notice form for temporary help firms. The Department's guidelines make clear that employers are not required to use its model forms, but that the Department does reserve the right to require the use of its forms if employer notices do not satisfy its requirements. The guidelines also mandate that employers obtain a signed acknowledgement of receipt of the notice from the individual, and retain the acknowledgement for six years. Notably, the guidelines also require that any notice provided to individuals who are exempt from the state and federal overtime laws must state the specific exemption that applies, even though that requirement is not set forth in the statute. Please contact any member of Schiff Hardin's Labor and Employment group if you have questions these laws, or about any law in your state that is not referenced here. We wish you the best of luck as you transition into 2010! RECENT LABOR AND EMPLOYMENT PUBLICATIONS
"Every Breath You Take: Blogging, Texting, E-mails and Social Networking in the Workplace," Labor and Employment Update (November 5, 2009) |