Anticipation... Employment Law in 2010
We survived the holidays and welcomed a new year. Now is the time to look at the year ahead and prepare for the challenges businesses may face in the employment arena. Unfortunately, crystal balls that clearly predict the future are few and far between. Nonetheless, to the extent events in 2010 can be predicted, employers should save time and money down the road if they prepare now, rather than waiting to react when new employment laws and government initiatives occur.
One important activity that employers should undertake now, if they have not done so already, is to ensure that their policies and procedures comply with the variety of changes in the law that occurred in 2009. Some of these changes are fairly new, while others are almost a year old. A partial list of the changes in statutes and regulations that took effect in 2009 include:
· Final regulations under the Family and Medical Leave Act (FMLA) related to both traditional forms of leave and the new military-related leave provisions;
· Amendments to the FMLA further expanding the military-related provisions;
·
The ADA Amendments Act of 2008 (ADAA) which clarified the definition of a
"disability" under the Americans with Disabilities Act of 1990 (
· The Lilly Ledbetter Fair Pay Act of 2009, which makes it easier for workers to sue their employer for pay discrimination based on such characteristics as gender, race, age or disability;
· Regulations requiring certain federal contractors to use E-Verify, an employment eligibility verification tool; and
· The Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits not only discrimination against a job applicant or employee based on the individual's genetic information, but also the improper acquisition or use of such information.
Although these changes are "in the past," we expect to see additional regulations in 2010 relating to these changes, including final regulations from the Equal Employment Opportunity Commission (EEOC) relating to the ADAA and GINA and proposed (and potentially final) regulations from the Department of Labor (DOL) related to the most recent amendments to the FMLA.
We also are likely to see increased enforcement activities by federal agencies in 2010. Several agencies, including the DOL and the Internal Revenue Service, have received increased funding and have hired additional employees to expand their enforcement efforts. One of the initiatives announced by these agencies includes a focus on employee misclassifications. If an employer uses "independent contractors" to perform any of its work, the practice should be reviewed and reconsidered. Employers need to ensure that "independent contractors" are not actually employees under a different name. The misclassification of an employee as an independent contractor can lead to fairly significant tax, benefit and employment law consequences. Self-audits of this and other personnel practices, including exempt classifications and overtime practices under the FLSA, can help avoid costly results should a company become the focus of the government. You should consult with legal counsel if you chose to perform a self-audit to determine whether the results can be protected from disclosure to a third party.
In addition to the anticipated regulations and enforcement activity, we expect several new laws in 2010 that will affect the workplace. The most notable of these anticipated laws is health care reform. Although we do not know what the final bill, if enacted, has in store for employers, we can predict, based on the current bills from the House and Senate, that additional burdens likely will be placed on employers, either through required changes to health insurance plans, additional taxes, and/or penalties if employers do not provide qualifying coverage. Employers should consider these potential burdens and prepare for their effect.
Once the long-debated health care reform is resolved, the federal legislature is likely to turn its attention in 2010 to some of the employment-related bills waiting in the wings. In early 2009, we saw significant activity related to the Employee Free Choice Act (EFCA). While it may seem that the EFCA all but perished by the end of 2009, we expect to see a push to enact a version of the EFCA in 2010. Employers should revisit their policies and practices in anticipation of the EFCA and take measures to ensure that they are in the best position to respond to union activity in the workplace.
Beyond the EFCA, there are several additional bills that could re-emerge in 2010, such as the Paycheck Fairness Act (which would add additional burdens on employers when defending claims of unequal pay), the Employment Non-Discrimination Act (ENDA) (which would add sexual orientation and gender identify as a protected classifications under Title VII), the RESPECT Act (which would modify a statutory exclusions for supervisors under the National Labor Relations Act), and a variety of bills that would further expand the FMLA.
These are just a sampling of the changes that are likely to be on the horizon in 2010. We all hope that 2010 will bring positive changes to the economy and the business climate. As part of their New Year's resolutions, employers should anticipate continued changes and challenges in employment law and take proactive steps, if possible, to minimize the effect on their businesses.
If you would like to learn more about employment law changes expected in 2010, please contact Tami Earnhart or another member of Ice Miller's Labor and Employment Practice 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.