You Say Goodbye, I Say Hello
Employment Laws to Focus on in 2011
Goodbye 2010, hello 2011. As we settle in to 2011 after a busy holiday season, we must refocus on the year ahead. For most of us, this time of year brings New Year's resolutions and planning for the upcoming year. For employers, this time should include reviewing their employment policies and procedures and making any necessary updates to ensure compliance with the various changes in the law that occurred in 2010.
This article provides an overview of some of the employment related statutes and regulations that arose in 2010.
The Patient Protection and Affordable Care Act
The Patient Protection and Affordable Care Act (PPACA) was signed into law in March 2010. The PPACA includes provisions affecting more than just employers' health care plans. One of those provisions requires employers to provide unpaid break time and private space for many nursing mothers to pump breast milk at work. This provision does not, however, change any state law that provides greater benefits. Employers must ensure that their policies and procedures comply with state and federal laws for nursing mothers.
The
Genetic Information Nondiscrimination Act of 2008
The Equal Employment Opportunity Commission (EEOC) issued final regulations in November 2010 that implemented the employment provisions (Title II) of the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA prohibits use of genetic information to make decisions about health insurance and employment, and restricts the acquisition and disclosure of genetic information. GINA applies to private employers with 15 or more employees and generally prohibits employers from requesting an applicant’s or employee’s genetic information, even if the employer never uses that information. Employers must become familiar with the provisions of GINA and ensure that all applicable policies and procedures and any forms or other documents they use to request medical information from an applicant, employee, or their medical providers, are compliant.
Employee
Union Rights
In May 2010, the Department of Labor (DOL) issued regulations requiring that most federal contractors post a notice advising employees of their rights under the National Labor Relations Act (NLRA). The required notice informs employees about their rights related to forming, joining and assisting a union, and their rights to bargain collectively with their employer. The notice also contains examples of unlawful conduct by both employers and unions. Federal contractors can obtain a copy of the required posting on the DOL's Web site. Hard copies of the notice can also be ordered from the DOL by sending a request to olms-public@dol.gov or calling (202) 693-0123. The National Labor Relations Board recently proposed a rule requiring all employers subject to the NLRA to post a similar notice. This requirement may become effective in 2011.
Definition
of "Son" and "Daughter" Under the Family Medical Leave Act
The DOL issued guidance in June 2010, to clarify the definition of "son" and "daughter" under the Family Medical Leave Act (FMLA) as it applies to an employee taking FMLA‑protected leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition. The regulations define a son or daughter as a biological or adopted child, foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. The DOL did not modify the FMLA or its regulations, but merely clarified this definition. Employers must ensure that their FMLA policy is applied to include all individuals who may qualify under the DOL's guidance, including domestic partners, grandparents or others without a legal relationship to a child who needs care as long as that employee has stood in loco parentis.
Firearms
on Employers Property
In July 2010, a new law went into effect in
Whistleblower
Protection Enhancement Act
In December 2010, Congress passed the Whistleblower Protection Enhancement Act that enhances protections for government employees and contractors who report cases of waste, fraud and abuse. More specifically, the Whistleblower Protection Enhancement Act protects federal employees who disclose classified information to relevant congressional committees, as long as they have first tried to get help from their agency's Office of Inspector General. Please note that several other laws were enacted in 2010, such as the PPACA and the Dodd-Frank Act, that contain similar whistleblower protections.
Worker
Misclassification
Although no specific federal regulations took effect in 2010, it is important to keep in mind that the DOL and the Internal Revenue Service will continue to aggressively investigate worker misclassification in 2011. Several states have enacted laws related to the misclassification of workers and we expect this to continue as an area of focus, both at the federal and state level. A self-audit of your company's independent contractors can reveal whether your classification of workers as independent contractors is appropriate.
Although the statutes and regulations listed above are not exhaustive of the legal changes in 2010 affecting the workplace, they have been regarded as significant to employers. Thus, it is imperative that employers become familiar with them and ensure that any applicable policies and procedures are up to date. If you would like to learn more about any employment laws that may affect your workplace, or have any questions about updating your policies and procedures to ensure compliance for 2011, please contact Lindsay Ramsey or another member of the Ice Miller's Labor and Employment Group.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
Jan. 5, 2011