This week the United States Department of Labor is hosting a series of Q&A sessions regarding its “Plan/Prevent/Protect” regulatory agenda via webcast. (Here’s the link to the schedule: http://www.dol.gov/regulations/.) While all of this may seem wonky (and it is), everyone needs to start paying attention to items like the Office of Labor-Management Standards’ plans to issue a rule to narrow the application of the “advice exemption” of the Labor-Management Reporting and Disclosure Act (i.e., an effort to require more disclosure of employer spending with outside consultants on union avoidance). As they say, the devil is in the details.
As you know by now, the Republicans will be in control of the U.S. House of Representatives beginning next year, and the Democrats will retain control of the U.S. Senate, although by a much more narrow margin than has been the case for the past two years. Since Republicans are generally regarded as more employer-friendly than Democrats, most employment lawyers may say that the result of this year’s midterm election will mean no new employment legislation. That may be true but I would remind you of what many employment lawyers said after the 2008 election.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (also known as “financial reform” or “the Wall Street bill”) made headlines when President Obama signed it into law on July 21. However, many employers may still not realize the legislation contains diversity provisions that could affect them if they are contractors, subcontractors, or service providers for certain federal government agencies. More specifically, the diversity requirements found in the bill will affect financial industry organizations and those connected to them.
Jon Hyman has an excellent post on the effect of the Americans with Disabilities Amendments Act (ADAAA) on many types of illnesses and diseases, cancer in particular. His post includes a summary of one of the first cases decided under the ADAAA. Before the ADA was amended, if an employee’s cancer was in remission, there was probably no disability. This conclusion was based on decisions by the U.S. Supreme Court, which were overturned by the ADAAA.
Hardly a surprise, USA Today recently reported that, according to the Equal Employment Opportunity Commission, disability discrimination claims increased last year more than at any other time in the 20-year history of the Americans with Disabilities Act. As predicted, the amendments to the ADA are having their impact. In 2010, we’ll see another increase in disability claims filed with the EEOC and disability lawsuits filed in federal court.
In a recent Slate article, Sharon Lerner rips both federal and state governments for the paucity of leave given women after the birth of a child. The article also discusses leave laws across the country. I will avoid joining the philosophical debate on pregnancy leave (which is what Lerner’s article is mainly about), but the article will serve as the basis for this week’s tip.
As I’ve noted before on this blog (here and here), the ADA Amendments Act is likely to result in significantly different court decisions in disability discrimination cases than would have occurred under the original Americans with Disabilities Act. Jon Hyman has an excellent post, using a real case to illustrate the potential difference that will be caused by the ADAAA. Time will tell, of course, as we wait for judicial opinions, but it’s hard to disagree with Jon Hyman’s opinion: “Under the ADAAA, almost every medical condition will qualify as a disability.”
When the Genetic Information Nondiscrimination Act was enacted, I did a comprehensive post on the new law and the hazards it holds for employers. Things have been relatively quiet with GINA, particularly when compared with other discrimination laws. It’s hard to know whether it will ever really catch fire or simply experience a slow evolution. Adria Martinelli, one of the contributors to the Delaware Employment Law Blog, suggests that GINA may cover baldness. When I read Adria’s post, my first reaction was “no way.” But I’ve found Adria to be pretty smart, so I’m reluctant to dismiss her proposition out of hand. If she’s right, hold on to your hats — or maybe your hair.
Much has been favorably written about the 20th anniversary of the Americans with Disabilities Act. It is my view, however, that the ADA hasn’t helped the truly disabled as much as it’s helped people with ordinary physical and mental ailments. With the passage of the ADA Amendments Act and its new definition of disability, this unfortunate result will be exacerbated.
Anyone up for a job with the above warning attached? There are lots, of course, in the National Football League. Although the NFL has always downplayed the harm caused by head injuries, it’s finally putting out notices and brochures that comport with overwhelming medical and scientific evidence. Concussions, particularly multiple (two or more) concussions, cause permanent brain damage. The league continues, however, to take a hard line on disability claims of former players who now have dementia and related-conditions.
For over 40 years, race discrimination claims have been primarily asserted by minority employees: African-Americans, Hispanics, and members of various other racial or ethnic groups. On the rare occasion when a white employee alleged discrimination, it was called “reverse discrimination.” The U.S. Commission on Civil Rights, composed of six conservative Republicans and two liberal Democrats, has increasingly placed the spotlight on discrimination against whites.
Yesterday, significant parts of Arizona’s new and controversial immigration law were ruled invalid by a federal judge. (Read here.) Undoubtedly, there will be an appeal, so who knows what will eventually happen? Not many people disagree with the proposition that there should be a federal overhaul of immigration law. But Congress isn’t about to act on this before the November elections, and it’s unlikely Congress will act on it after the elections.
The only Elena Kagan brief I haven’t covered was filed in the case of New Process Steel v. National Labor Relations Board. (She also filed one in National Labor Relations Board v. Laurel Baye Healthcare of Lake Lanier, but this case involved the same issue decided in the New Process Steel case.) New Process Steel concerned the issue of whether the NLRB could properly decide cases with only a two-member board. Representing the NLRB’s position, Kagan argued as Solicitor General that the NLRB could act with only a two-member board. The Supreme Court has now decided that it couldn’t.
The City of Chicago administered a written examination to 26,000 applicants as part of its hiring process for entry-level firefighters. After scoring the tests, the results were grouped into three categories: applicants who scored 89 or above deemed “well qualified”; applicants who scored between 65 and 88 deemed “qualified”; applicants who scored lower than 65 deemed as having failed the exam. The “well qualified” group consisted of 75.8% white and 11.5% African-American. African-American applicants filed suit, contending that the cutoff scores had a disparate impact on racial minorities.
Under the Employee Retirement Income Security Act (ERISA), it’s well settled that the administrator of a benefits plan governed by ERISA is entitled to significant deference in making decisions concerning the plan, unless a decision by the administrator is found to be arbitrary and capricious. In Conkright v. Frommert, the Xerox Corporation changed its pension plan. The plan administrator interpreted the changes, and this decision was challenged.
In Hardt v. Reliance Standard Life Insurance Co., an employee had worked at a textile manufacturer and participated in a long-term group disability insurance plan governed by the Employee Retirement Income Security Act (ERISA). Diagnosed with carpal tunnel syndrome and a host of other impediments, the employee applied for benefits under the plan. The plan administrator denied the employee’s request for long-term benefits.
The False Claims Act (sometimes called the “Lincoln Law,” as it was passed during President Lincoln’s administration) allows private citizens to file lawsuits, on behalf of the federal government, when there’s evidence that a person has wrongly made a claim for money from the federal government. The citizen who files the suit is entitled to part of any money that’s recovered. The government can bring its own lawsuits, but part of the rationale of the False Claims Act is that private citizens’ assistance in helping recover misspent federal funds should be encouraged and rewarded.
One of the most important employment law cases which will be decided by the U.S. Supreme Court during its next term is Staub v. Proctor Hospital. It involves a theory of discrimination law known as “cat’s paw.” The Supreme Court has accepted cat’s paw cases previously, because the various U.S. Circuit Courts of Appeals are divided on the meaning and application of this theory. However, the cases have always been settled or withdrawn before the Court has had a chance to render a decision. The Court has accepted the Staub case but not before Elena Kagan filed a brief in her role as Solicitor General, requesting that the Court do so.
The Department of Labor’s Office of Labor Management Standards (OLMS) has issued a final rule implementing Executive Order 13496. The new regs take effect on June 21, 2010. They require federal agencies to include contract language in agreements requiring their contractors and subcontractors to : (1) post a notice informing employees of their rights under the National Labor Relations Act; and (2) include similar requirements in their subcontracts. Check out a summary of these new regs provided by Miller & Martin, which includes links to various documents you should review and other information.
In two cases filled with what some would call legal mumbo jumbo (but important nonetheless), the U.S. Supreme Court has ruled unanimously (!) in favor of employees. In Hardt v. Reliance Standard Life Insurance, the Court found that an employee was entitled to recover attorneys fees under the Employee Retirement Income Security Act (ERISA). In Lewis v. City of Chicago, the Court determined that discrimination charges had been timely filed with the Equal Employment Opportunity Commission (EEOC), allowing the employees to proceed with their race discrimination lawsuit. (For good summaries, see Ross Runkel, here and here.)