1. FEATURE STORY: REVIEWING MAJOR 2009 EMPLOYMENT LAW CHANGES...AND LOOKING AHEAD TO 2010
Here's a look at some of the more significant laws affecting the workplace that were enacted or became effective in 2009.
Americans with Disabilities Act Amendments Act (ADAAA). The ADAAA significantly expands the protections of the original Americans with Disabilities Act (ADA) to include more individuals with less severe impairments, effective January 1, 2009. The ADAAA also directed the Equal Employment Opportunity Commission (EEOC) to amend its existing ADA regulations to conform with the new Act; accordingly, the EEOC released proposed regulations in September 2009.
American Recovery and Reinvestment Act of 2009 (ARRA). This amended COBRA to provide a 65% subsidy for health insurance premiums for employees who were involuntarily terminated. (Note: Eligibility for the subsidy was to have expired at the end of 2009; however, the eligibility period has been extended to include employees laid off as of February 28, 2010, and the duration of the subsidy has been extended from nine months to 15 months.) ARRA also amended the Health Insurance Portability and Accountability Act's (HIPAA) privacy and security provisions.
Lilly Ledbetter Fair Pay Act. In his first full week in office, President Obama signed this act into law, though it is effective retroactive to May 28, 2007. The Fair Pay Act amends Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act to clarify that each time a discriminatory paycheck is issued, a discriminatory compensation decision occurs and the 180-day statute of limitations for filing an EEOC charge begins anew.
Genetic Information Non-Discrimination Act (GINA). The employment law provisions of this Act, which prohibit employers from discriminating against employees on the basis of genetic information, became effective November 21, 2009. Proposed regulations were issued by the EEOC in February 2009; final regulations have not yet been released.
Family and Medical Leave Act regulations. The Department of Labor (DOL) published new final regulations governing the FMLA in November 2008; they became effective on January 16, 2009. These regulations affect how the FMLA is administered and created two new leave provisions for families of military service members. Note: In October 2009, President Obama further extended the FMLA's family military leave provisions by signing into law the National Defense Authorization Act for Fiscal Year 2010.
Pro-union developments. Obama signed four pro-union executive orders within his first month in office, impacting federal contractors: The Notification of Employee Rights Under Federal Labor Laws; Nondisplacement of Qualified Workers Under Service Contracts; Economy in Government Contracting; and Use of Project Labor Agreements for Federal Construction Projects.
E-Verify. On September 8, 2009, the federal government began to require federal contractors and subcontractors to use E-Verify to confirm the employment eligibility of new hires and current employees who are assigned to work on a federal contract. The effective date was pushed back by the U.S. Department of Justice from January 15, 2009, because of a lawsuit challenging the requirement.
For detailed information on current federal and state employment laws, turn to AHI's Complete Compliance Guide To Federal & State Employment Law.
Gazing Into The Crystal Ball
So what's on tap for 2010? Here's a look at a few hot topics.
Health insurance reform. If and when some form of comprehensive health insurance reform is finally enacted, requiring all Americans to have health insurance, it will certainly have an enormous impact on employers, particularly small businesses.
Paid sick leave. There are currently several bills under consideration by Congress that would require employers to provide employees with paid sick leave.
Employee Free Choice Act. Although the original version of this "card-check" bill failed to be passed by Congress in 2009, a softer version may fare better in 2010.
Employment Non-Discrimination Act. This act would prohibit employers from discriminating against employees and applicants on the basis of their actual or perceived sexual orientation or gender identity.
Child labor. According to the DOL's 2009 Regulatory Plan, released on December 7, 2009, updating the child labor regulations issued under the Fair Labor Standards Act (FLSA), in order to reflect statutory amendments enacted in 2004 and several recommendations of the National Institute for Occupational Safety and Health (NIOSH), is a major priority for the Wage and Hour Division (WHD) in 2010.
FLSA record-keeping. According to the Regulatory Plan, the WHD also intends to initiate rule-making to update the record-keeping regulation issued under the FLSA, "in order to enhance the transparency and disclosure to workers of how their pay is computed, and to modernize other record-keeping requirements for employees under 'telework' and 'flexiplace' arrangements."
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