New PresidentDemocratic Majority in CongressWhat You Will and Might Face in 2009

Michael K. KirkWyatt, Tarrant & Combs, LLP500 W. Jefferson Street, Suite 2800Louisville, Kentucky 40202(502) 562-7306mkirk@wyattfirm.com

The Americans With Disabilities

Amendments Act

When

• Signed into law 9/25/08

• Became effective 1/1/09 (still covers employers of 15 or more)

• First amendment since original enactment in 1990 – G.H.W. Bush

Why

• Supreme Court rulings – Congress unhappy

• Want a clue – look at opening of the Act

• “AN ACT To restore the intent and protections of the [ADA] of 1990”

What The Supremes Said –“DISABILITY”

• Toyota v. Williams -- Strict interpretation– “a physical or mental impairment that

substantially limits one or more major life activities of such individual”

– Substantially = considerable– Major = central to most people’s daily lives– Must have impairment that prevents or

severely restricts a person from doing activities that are of central importance to most people’s daily lives

– If merely limiting, not protected

Williams Rejected by ADAAA

• Amendment – substantially limits means “materially restricts” “materially limits”

• More than moderate and less than serious

• Need not materially limit other activities

• “a physical or mental impairment that [materially restricts] one or more major life activities of such individual”

Further Clarifications

• Impairment that substantially limits one major life activity need not limit others to be considered a disability

• “a physical or mental impairment that materially restricts one [OPTIONAL: or more] major life activity [OPTIONAL: activities] of such individual”

Further Clarifications – Part II

• What if impairment is episodic or in remission

• You are disabled if that condition would substantially limit a major life activity when active

• Ex. cancer – can go into remission• Ex. tuberculosis – can go into remission• Ex. seizures – can be episodic and

unexpected

“Major Life Activities” (New)

“caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” (includes but not limited to)

“the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

Regarded As Claim – Expansion

• Does not apply to transitory AND minor impairments

• Actual or anticipated duration of less than 6 months

• ADA is designed to protect those discriminated against because of the negative attitudes of others toward them, whether or not they have a physical disability or mental impairment

Regarded As – Amendments

Individual establishes– that he/she has been subjected to an action

prohibited by the ADA– because of an actual or perceived– physical or mental impairment– whether or not the impairment limits or is

perceived to limit– a major life activity

Regarded As--BUT Not Entitled To• Just because someone can prove they are

regarded as

• Need not accommodate non-existent disability

• Nor reasonable modification to policies, practices or procedures

What The Supremes Said–Another Case

Sutton v. United Airlines – substantially limits versus mitigating measures

In other words:

If you can neutralize a disability with medication or a device --

YOU ARE NOT DISABLED – Ta da!

Mitigating Measures – Almost Gone

Prohibited from considering mitigating measures– Determination of whether impairment

substantially limits a major life activity– SHALL be made without regard to mitigating

measures– Except glasses and contacts

Fascinating Exercise –What Do I Do???

1. Be prepared to change you analysis – focus shift to employer

2. If someone asks for accommodation, assume they are disabled

3. Initiate the accommodation discussion4. Consult with your legal advisor if you

question the disability5. Expect more requests for

accommodation

What Else Should I Do?Train managers on the basics of the ADA

Train them to send folks who request accommodations to HR

Train them on the concept of regarded as, don’t ask

Being concerned could get company hit with regarded as claim

Train them to document information and requests

Be on the lookout for the new EEOC regulations

Anything Else?

• Post new posters

• Revise handbook

• Review recent ADA decisions

Unemployment Claims

Unemployment Rising

• Report on 12/31/08 – jobless rate soaring in 116 of 120 KY counties

• Report on 1/9/09 – national jobless rate at 7.2% in 12/08

• Highest jobless rate since 1/93

• All types of unemployment claims will continue to rise

• More layoffs and more downsizing

• Extensions of UI benefits and perhaps more to come

• And an increase in continuing claims

• How do you handle unemployment claims• Do you allow everyone to apply unchallenged• Do you challenge claims• Remember – cannot ask employees to waive

claims• KRS 341.470:• No agreement by a worker to waive, release, or

commute his rights to benefits or any other rights under this chapter shall be valid

What You Can Challenge - How You Can Prevail

• Voluntary quit

• Misconduct

• Not available for work

• Rejected suitable work

• Working elsewhere

http://oet.ky.gov/des/ui/EmployerGuide2008

How to set yourself up to prevail

• Paper trail in personnel files• Annual training of employees (ex. work rules,

attendance)• Annual training of supervisors (ex. how to

properly document)• HR regularly involved in discipline and

terminations• Gather all records as soon as

termination/severance done• Review the file for thoroughness

What to take to UI hearings

• Eyewitnesses

• Work rules (3 copies)

• Employee handbook/receipt signed by employee (3 copies)

• Discipline/termination records (3 copies)

• Any other relevant documents (3 copies)

• Your attorney?

Also –

Look for the Obama administration to Push for UI benefits for part-timers

Steps To Avoid Layoffs

• Reduce perks, like club memberships

• Bring outside services back in-house

• No raises, no bonuses

• Reduce travel expenses, cheaper hotels, cap meal reimbursements

• Reduce monthly costs, magazines, binder products, books, newspapers

• Renegotiate contracts

More Steps

• Go green – longer-lasting light bulbs

• Reduce inventory of office products

• Cull old files and records

• Reduce kitchen expectations– ask folks to pay for coffee/tea– ask folks to pay a fee for food items– cut back on breakfast/lunch meetings

Family and Medical Leave Act

• The new regulations are final

• Lots of new changes

• Lots of new additions

• Too much to cover

• Just some highlights

• Eligible employees

• Still 12 months/1250 hours

• But - 12 months need not be consecutive

• Only need to keep records back 3 years

• If employee wants to go back further, his burden

• Military service, agreed breaks don’t count

Military leave – National Defense Authorization Act

• 12 weeks in 12 months for exigency resulting from call to duty– Legal arrangements– Child care– Military activities

• 26 weeks in 12 months to care for service member

• Same categories (spouse, son, daughter) + next of kin

• Nearest blood relative

Serious Health Condition

• Same six categories

• Incapacity of 3 days plus either– 2 visits to health care provider; or– one visit with regimen of continuing treatment

• HCP visit within 7 days of onset of leave

• Chronic category – at least 2 HCP visits annually

Health Care Providers

• List of HCPs expanded

• Physicians’ assistants

• Probably doing much of the paperwork and patient contact

Return To Work

• May require fitness for duty certification

• Can ask HCP to certify emp’ee can perform essential functions of job

• If provided list of essential functions with designation notice

Holidays

• If employee takes full week of FMLA leave and holiday during that week – no effect

• If employee takes part of week and holiday occurs, does not count unless employee scheduled to work and expected to work

Paid Leave

• All forms of paid leave treated the same

• Does not matter type of paid leave

• Must follow same rules in taking leave that apply to all employees

Bonuses

• Before could not deny due to FMLA

• Now can base on hours worked

• Or perfect attendance

• Must treat non-FMLA leave and FMLA leave same for purposes of bonus

Notice

• Prior regs – 2 days after notice of need for leave

• Now – 5 days

• Use the Notice of Eligibility form ASAP

• If get incomplete certification

• Employee has 7 days to correct

Contact with HCPs

• Before, your doc only

• Now, you (HR) can contact HCPs

• For clarification and authentication

• Clarification – what does that say?

• Authentication – is that your handwriting and signature?

What To Do

• Read all you can get your hands on about the changes

• Attend seminars

• Train supervisors on the basics

• Get the new posters and post them

• Revise your handbook policies

What else is purported to be lurking out there?

• expanding FMLA to small companies – 25 employees

• increased categories of reasons for leave– elder care (EEOC guidelines)– 24 hours child’s academics– domestic violence

• paid FMLA leave

Anything Else?

• More telecommuting and other non-traditional arrangements

• Obama-Biden has said it wants to make the federal government the model employer in terms of adopting flexible work schedules and permitting employees to request flexible arrangements

Healthy Families Act

• Employers of 15 or more employees

• Minimum paid sick leave of 7 days– For those who work at least 30 hours a week

• Pro-rated amount of paid sick leave– For those who work 20-30 hours per week

• For employees own medical needs

• Or medical needs of family members

• Quasi-FMLA – short-term

• Family member includes– Child– Parent– Spouse

• Any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship

• Affinity = relationship by marriage or by ties other than blood

Genetic Information

Non-Discrimination Act

But Doesn’t The ADA Cover This?

Probably, the ADA prohibits using info

1. gathered during hiring and employment

2. to make adverse employment decisions

3. against those with disabilities

But Doesn’t The ADA Cover This? (continued)

But the ADA does not specifically cover genetic testing

Employers are allowed to request post-offer medical exams

Could include genetic tests

When Does It Become Effective?

The EEOC is to issue final regulations no later than 1 year after enactment

Watch for comment period on regulations

Law to be effective 18 months after enactment – November 2009 (?)

Group health plan provisions May 2009

Give your input to national SHRM

Who/What Is Covered?

1. Employers with 15 or more employees

2. Employment agencies

3. Labor organizations

4. Joint labor-management committees

What Is Generally Prohibited for Employers?

Cannot use genetic information to:1. fail to hire2. terminate3. with respect to compensation, terms,

conditions privileges of employment

What Is Generally Prohibited (continued)

4. limit, segregate or classify employees to deprive them of opportunities

5. retaliate due to charge, testimony, assistance, participation in

A. investigation

B. proceeding

C. hearing

What Is Genetic Information?

Info about an individual’s genetic tests (huh?) – analysis of:1. DNA2. RNA3. chromosomes4. proteins5. metabolites

Which detect genotypes, mutations or chromosomal changes

What Else Is Genetic Information?

Genetic tests of family members (to the 4th degree) a.k.a. family history

Manifestation of a disease/disorder in family members– Aunt Gert has pancreatic cancer– Uncle Charlie has high cholesterol

Why? If your relative has it – you might have it

Anything Else?

Employers cannot request, require or purchase an employee’s genetic info except:

• Inadvertent requests• Wellness Programs• FMLA• Commercially and publicly available documents• Monitoring of toxins• Law enforcement purposes

Inadvertent Request

1. Heard around the old water cooler

2. Casual conversation with employee, genetic info discussed

– Ex. Uncle Joe is back in the hospital for chemo

– Ex. Mom is waiting for heart surgery

Inadvertent Request (continued)

3. Be on your toes!!!

4. Train your supervisors

5. You did not ask, they volunteered the information

Wellness Programs

Employee provides knowing, voluntary, written authorization

Results go to licensed health care professionalInfo available only for purposes of wellness

servicesInfo not disclosed to employer except in the

aggregateInfo does not disclose identity of employeesWhy? Wellness programs may deal with genetic

issues

Health Risk Assessment

• If you offer HRA re Wellness Program• Offer incentive to do HRA• Beware of GINA• Cannot make answers assessment to determine

eligibility to enroll in Wellness Program• Incentives may be taxable – check with atty• Incentives may be Title VII problem – National

Origin• Predisposition to medical conditions due to

family history in country of origin

Family and Medical Leave Act

Allowed to request disclosure of genetic info pertaining to certification of health care provider

Also to comply with provisions of state FMLA laws

Commercially And Publicly Available Documents

Newspapers, magazines, periodicals, books

1. Ex. Obituary of family member that lists cause of death

2. Ex. Article on family member who battled a disease

However, do not access medical databases or court records

Biological Effects Of Workplace ToxinsYou can conduct genetic monitoring of biological

effect of workplace toxins if:1. Written notice to employees2. Written authorization from employee or

required by law3. Employee is informed of results4. Monitoring in compliance with local, state or

federal law (ex. OSHA)5. Employer only gets results in the aggregate6. Employer does not receive info on individual

employees

Law Enforcement Purposes

• Employer conducts DNA analysis for law enforcement purposes

• As a forensic laboratory

• For human remains identification

• Must be for quality control purposes

CAUTION!!

• Even if you get genetic info legally by one of the exceptions

• You cannot use that info for discriminatory purposes

• Or violate the confidentiality rulesHIPAA

So What Are The Confidentiality Rules (Amendments to HIPAA)?

1. Genetic info must be maintained on separate forms

2. And in separate medical files

3. And treated as confidential (genetic info = health info)

4. Similar to the requirements under the ADA

So What Are The Confidentiality Rules (Amendments to HIPAA)?

(continued)

5. Keep a separate medical file

6. Keep it under lock and key

7. No access by anyone not in HR

Exceptions To Confidentiality

1. Written request of employee/member him or herself

2. Occupational or health researcher per regulations

3. ORDER of a court (notice order is capitalized) NOT discovery requests or subpoenas– must inform employee if not involved

Exceptions To Confidentiality (continued)

4. To government officials investigating GINA compliance

5. To determine employee’s compliance with FMLA certification

6. To a federal, state or local public health agency re contagious diseases

But Doesn’t HIPAA Already Cover Confidentiality?

• Isn’t HIPAA primarily for healthcare employers and patient records?

• HIPAA also address self-insured employers

• But it had too many exceptions

• GINA prohibits discrimination in insurance decisions based upon genetic info

What Do I Do To Prepare?

• Check your handbook policies and PPM policies

• Be prepared to include genetic information as a protected category

• (“age, race, sex, genetic information…..”)

Handbook

What Can A Victim Do About A Violator Of The Act?

• File a charge of discrimination with the EEOC

• If EEOC does not pursue, right to sue letter

EEOC???

What Can A Victim Do (continued)

• If the matter goes to suit in federal court the plaintiff can recover:

1. compensatory damages

2. back pay

3. front pay

4. equitable relief

5. attorney’s fees

The WARN Act

WARN Act

• Don’t forget the WARN Act

• Worker Adjustment and Retraining Notification Act

• Applies to all employers of 100 or more employees

WARN Triggers

• Plant closing – results in employment loss for 50 or more in a 30 day period

• Mass layoff – employment loss of 500 or more in 30 day period or 50-499 if they total 33% of workforce

• “Employment loss”:– termination (not for cause, quit, retirement)– exceeding 6 months– reduction in hours 50% or more/6 months

WARN Duty

• Provide 60 days notice of plant closing or mass layoff to affected employees

• Or their union reps

• Plus unit of local government

• And State dislocated worker unit

WARN Trap

• The 90-day look-back rule

• Layoff in dribs and drabs

• None equals 50, but over 90 days they do

• Required to give notice as of first layoff in that 90 day period which led to 50 layoffs

Sale of a Business

• Seller has WARN duty to date of sale

• Buyer assumes duty as of date of sale

• Lawyers usually address this in language of contract for sale

• Beware – if significantly reduce employees

• Or if significantly reduce pay/benefits

• May be WARN trigger

Remedies/Penalties

• Civil damages = pay/benefits for 60 days

• Attorney’s fees

• Civil penalty $500/day

• Enforceable in US District Court

• Pay-in-lieu-of-notice

Workplace Violence

• Remember the tragedy of the Atlantis Plastics plant shooting

• Bruce Pardo, the “Santa Gunman”, divorce/lost job• 1/2/09 story of poultry worker in Robards, KY –

bomb threat• More people have lost/will lose their jobs in 2009• People are on edge, scared• Desperate people sometimes take irrational

actions

Steps To Address Workplace Violence

• Implement a policy– Zero tolerance– We are here to help– Threats from inside and out– Who to report to

Weapons Policy

• Specifically have a work rule excluding weapons not “protected” by law

• Knives, clubs, kung fu stars, and so forth

• Implement a weapons policy regarding guns– No weapons in buildings– If licensed, leave it in your car

More Steps To Take:

• Check your security systems at plant or office– Locks, scan cards, keys– How easy is it to gain access– Video surveillance– Train employees

• EAP program to assist employees

What Else Should I Do?

• Do not ignore reports of problem employees

• Do not tolerate supervisors who are abusive and demeaning

• Do not ignore reports of issues between employees and supervisors

• Act as a mediator or find a mediator

Age Discrimination

• Age discrimination claims may rise• Companies are seeking ways to cut costs• Younger, less experienced employees are

usually cheaper• Getting rid of older, experienced

employees cuts costs• Severing older, experienced employees before

they vest cuts costs• Older workers may drive up healthcare costs

• Claimant can file lawsuit 60 days after filing charge with EEOC

• Supreme Court made claims easier• Meachem v. Knolls Atomic Power Lab• Employer has burden of persuading that

an employment practice with a disparate impact on older workers does not constitute age discrimination because it is based on factors other than age

• Bottom line – employers must offer more proof

• The proof must show that the employment practice is unrelated to age

• In other words, you may have to prove that age WAS NOT a factor

• Be wary of any patterns you see or hear about• If you start seeing veterans term’d, speak up• Track your company’s hiring and firing patterns

• Train executives, manager, supervisors (EMS)

• Remember that EMS do not know the ADEA

• REMIND THEM!

• Train EMS on documentation re performance/discipline

• Train EMS to avoid age-related comments

In Layoff Situations:

• Use a matrix against which all employees are evaluated

• Make the factors objective (seniority, discipline record, performance ratings)

• Avoid any subjective factors/manager discretion

• Avoid significant reliance on adaptability factors

EEOC Charges At An All-Time High

• During 2008 EEOC rec’d 95,402 charges

• Increase of 15.2% from 2007

• As of 9/30/08 73,951 charges pending

• Union of EEOC employees claim 25% decrease in staff in Bush years

• Shift in focus to class action matters

• Impact on larger groups of employees

• Systematic cases in order of cases filed:

• Title VII

• ADA

• Equal Pay Act

• Expect more of the same in 2009

• With change in administration, expect an increase in EEOC staff

• Expect an increase in EEOC activity

• Expect more requests to mediate due to shortage of staff

Diversity

Diversity

• Expect to hear much about diversity

• Encouragement to be inclusive

• Encouragement not to exclude any individual or group

• Look for more groups to surface

• Look for more groups to seek inclusion

What To Do

• Look at diversity at your company

• Steps you have taken to be diverse

• Where do you advertise

• How do you advertise

• Website show diverse employees

• Spanish speakers welcomed

• Disabled find it easy to apply

Knock Knock

• Ask yourself this question

• If someone came knocking the day after inauguration

• What could I point to in order to demonstrate we are diverse and/or are taking steps to advance diversity

USERRA

• President-elect Obama and pullout

• More and more military may be returning

• Are you familiar with USERRA?

• Uniformed Services Employment and Re-employment Act

Who Is Covered?

• Army

• Navy

• Marines

• Air Force

• Coast Guard

• Reserves

• Air National Guard

Basics

• Civilian employment

• Service must not exceed 5 years

• Release must be honorable and not punitive

• Must report back to employer in timely manner or submit application timely

Time Of Service/Return

• 31 days or less – 1st regularly scheduled work period after end of calendar day of duty + return + 8 hours rest

• 31-180 days – must apply no later than 14 days after end of service

• 181 days or more – no later than 90 days after end of service

• Extend up to 2 yrs if injured

Employer Duties

• Prompt reinstatement (days)

• Accrued seniority – status, rate of pay

• Training, retraining, accommodation

• Discharge only for cause– 31-180 days = 180 days– 180 days or more = 1 year

Prompt Reinstatement

• Less than 91 days– job would have attained w/o service– if can become qualified– if not, job employee left

• More than 91 days– same; or– position of like seniority, status, pay

Damages

• Lost wages

• Benefits

• Reinstatement

• Adjusted seniority

• Pension adjustment

• Liquidated damages for willful violation

Use of Criminal Records in Hiring

• EEOC has held hearings on use of criminal records in hiring

• 1990 guidance – arrest/conviction could have disparate impact

• Studies have shown minorities are arrested at much higher rate

• Can ask about felony convictions• Should be related to position & responsibilities• Business necessity

• May ban asking about arrests/convictions on applications

• Some major cities have already adopted this approach

• Like ADA, cannot ask re medical info until after offer conveyed

• Then must ask everyone same question/same background check

• Must show business necessity– Nature of crime– How long ago– How related to position

Crime Victims Employment Leave Act

• Rahm Emanual – new Chief of Staff, introduced the bill

• Amend FMLA

• Leave for employees who are victims of– Violent crime– Domestic violence– Family members are victims– To attend court proceedings

New Protected Categories:• Sexual Orientation,

• Gender Identity

• Watch for new legislation to add protected categories (Title VII?)– Sexual orientation– Gender identity

• Change.gov, the office of the President-elect• “The Obama-Biden Transition Project does not

discriminate on the basis of race, color, religion, sex, age, national origin, veteran status, sexual orientation, gender identity, disability, or any other basis of discrimination prohibited by law.”

• Some states and some cities already include those categories– 20 states sexual orientation– 13 of those 20 also gender identity (+ DC)

• Metro Louisville’s ordinance• So far no federal statute or amendment to Title VII• Executive Order 13087 added sexual orientation• Protected category for civilian employment in

executive branch

• Watch the Employee Non-Discrimination Act (ENDA)

• Introduced by Barney Frank 9/07

• Purpose is to prohibit discrimination on basis of sexual orientation

• Passed the House in 2007

• Sen. Kennedy principal sponsor in the Senate

More on ENDA

• Does not authorize preferential treatment or quotas

• Only disparate treatment claims

• Not disparate impact

• Religiously-affiliated employers exempt

• Supported by SHRM

Employee Free Choice Act

• Thomas Kochan, Member of President-elect Obama’s transition team

• Assigned to the Federal Mediation and Conciliation Service

• Response to economic crisis should include measures to reduce the adversarial nature of labor-management relations

• EFCA is necessary first step for integrated, progressive labor policy

• Coordinated with economic policy

• March 2007 passed the House

• June 2007 fell 9 votes short in Senate

• Democrats picked up 8 seats in Senate

• But have only 59, so unless a Republican turns….who knows?

• Unions are reportedly already seeking signatures on cards

• Authorization cards good for a year

• EFCA requires union recognition if NLRB finds that a majority of employees signed authorization cards

• In other words, no secret-ballot elections• But, studies show 60% win rate for unions,

same as 1965• Will change focus to appropriate units,

employer shift of focus• Will the same apply to decertification?

• Who is a supervisor battle

• If can reduce pool/eligibility, increase union-eligible employees

• Supreme Court’s decision NLRB v. Ky River

RESPECT Act (Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers)

• Proposed amendment to NLRA• Redefines supervisor to anyone who has

control over terms of employment– Hiring– Firing– Discipline

• Not occasional/minor supervisory duties

• If it passes – what happens if you get notice of a majority

• 10 days to prepare for negotiations – unless agree to later date (ha!)

• If fail to reach agreement in 90 days can request mediation/arbitration by FMCS

• You have 120 days (total) to reach agreement with the union

• Then it goes to the FMCS to settle and resolve – mandatory arbitration

• What do we do to prepare

• Look for unions snooping around

• Don’t ignore rumors

• Get with your legal advisor to be prepared

• Both for authorization card sneak attack

• And to get ready to negotiate

• If parties fail to reach agreement

• FMCS will mediate/arbitrate first bargaining contracts

• Tougher penalties for employer ULPs during– Organizing campaigns– Bargaining for first contract

Lilly Ledbetter Fair Pay Act of 2007

Ledbetter v. Goodyear Tire

• Supervisors gave bad evaluations

because she was a woman• Made less than male colleagues• Supremes held that a pay-setting act, such as a

merit increase• Is a discrete act which tolls time to file an EEOC

complaint• 180/300 days• Even if employee not aware of discrimination

• President-elect Obama is a sponsor of the bill

• To amend Title VII, ADEA, ADA, Rehab Act

• Each decision a discrete act, but so is each paycheck

• So each time you pay less, due to discriminatory evaluation (ex.)

• The time to file a charge starts again

Status of Ledbetter

• The bill passed the House on 1/9/09 by a vote of 247-171

• It now goes to the Senate

Paycheck Fairness Act

Amendment to Fair Labor Standards Act

• Revises remedies for enforcement• No retaliation for asking, discussing,

disclosing– In response to complaint/charge– During sex discrimination investigation– Investigation, hearing or action– Or employer investigation

• Civil liability for compensatory or punitive damages

Secretary-Elect

of the Department of Labor

• President-elect Obama nominated Rep. Hilda Solis (D-Calif.)

• Co-sponsor of the EFCA• Only Member on board of Americans Right

to Work – pro-union group• Long-time supporter of increasing the

minimum wage• Supports increasing fines and penalties for

worker safety violations

Agencies With New Leaders

and Staffs

And a New License on Life….

Multiple vacancies in key employment and labor agencies

1. EEOC

2. NLRB

3. Secretary of Labor

4. DOL Wage and Hour

5. OFCCP

President-elect Obama has made it clear

The agencies must do more to protect employees

Especially in this troubled economy

Expect to hear the argument

We bailed out companies

We supported executives and management

Who is protecting the workers?

Agencies will be aggressive in compliance efforts

Anything Else?

Many recent articles with common themes – SHRM Website summarized

Talent managementFinding talented employees

Keeping good employees

Succession planning

Leadership development

Skills shortages

That It?

Expect a movement to increase the minimum wage

Expect a push to expand health care insurance

It is possible there will be a decrease in surprise immigration raids

While the burden on employees to identify immigrants will likely increase

Expect a lot of noise about executive

compensation

Expect retaliation claims to outpace most others

You Just Can’t Stop, Can You?

Look for new regulations concerning financial institutions

Look for tax breaks for green technology and building– Why is this an HR issue– Because everything eventually is an HR issue– Take initiative on reducing expenses– Issue policies on lights, recycling– Get employees involved, rewards for cost cutting

and greening

Do I reallyneed to

print this e-mail

Knock, Knock

• Who’s there?

• OSHA/KOSHA

• Police

• ICE

• EEOC

• OFCCP

• NLRB

OSHA

• Inspections usually w/o notice

• No warrantless search – wise?

• If you refuse or interfere– Warrant

• Tell inspector safety policy/discipline

• Provide copy of policy/program

• Tell inspector of trade secret/IP issues

KOSHA

• Can deny access to Compliance Office

• Demand a warrant

• Otherwise may enter w/o delay and at reasonable times

• Private questioning

• Review documents related to purpose of inspection

Police

• Warrantless search if active crime

• Otherwise need a warrant to search

• Search of general areas of office

• Versus search of employee’s person, bags, locker

• E Policy – no expectation of privacy in info stored in employer’s computer, voicemail

ICE

• Immigrations and Customs Enforcement

• Dept. of Homeland Security

• Routine audit of I-9s, need no warrant– Keep separate from personnel files

• 3 days notice – usually done by DOL

• Other inspection/raid, warrant needed

EEOC/OFCCP

• Send notice of charge/complaint

• Ask for position statement/documents

• Ask to interview employees– can attend managerial interviews– can be excluded from non-managerial

• Cannot inspect w/o permission – warrant

• Can offer to bring docs/witnesses to EEOC

NLRB

• Sends notice of investigation

• Meets and interview employer witnesses

• If complaint issued, ALJ hearing

Steps For Any Search

• Keep attorney on speed dial – HELP!

• Educate HR on laws, legal requirements

• Records retention rules

• Follow them, no exceptions

• Keep records carefully

• File logically and under lock

More Steps

• Ask inspector/officer for ID

• Have someone follow the inspector

• Take photos/film

• If they take records, get copies

• Or if massive, keep inventory of what was requested and taken

• Take notes during interviews

Still More Steps

• Label trade secret/IP documents

• Keep inventory and send to agency

• Be cooperative and pleasant

• Ask inspector to narrow purpose of search

• Do not admit or discuss other issues

New PresidentDemocratic Majority in CongressWhat You Will and Might Face in 2009

Michael K. KirkWyatt, Tarrant & Combs, LLP500 W. Jefferson Street, Suite 2800Louisville, Kentucky 40202(502) 562-7306mkirk@wyattfirm.com