(Denver Business Journal) -- For employers, 2009 is likely to be a historic year for workplace law. Merrily Archer, an attorney in the Denver office of Fisher & Phillips LP, a law firm that represents employers, noted several major measures are taking effect this month and in February. Among them:
• The Americans with Disabilities Amendment Act of 2008. In the 18 years since the Americans with Disabilities Act (ADA) became law, several Supreme Court rulings narrowed the definition of a disability, making it easier for employers to defend themselves from discrimination cases. This measure rejects those decisions. It broadens the scope of what’s considered a disability and requires employers to ignore most mitigating measures — such as prosthetic limbs, medications or hearing aids — when determining disability. The Congressional Budget Office has estimated that the new rules will lead to a 10% increase in annual discrimination complaints. “We think that’s low,” Archer said.
• Military Family Leave. This change in the Family Medical Leave Act permits employees to take up to 26 weeks of leave to care for an ill or injured serviceperson. They must be a spouse, child, parent or next of kin of the employee. Additionally, Guard members or reservists, as well as their family members, are eligible for up to 12 weeks’ leave to deal with issues related to deployments.
• Mandatory use of E-Verify. E-Verify, an online system operated jointly by the Department of Homeland Security and the Social Security Administration, lets employers enter a Social Security number and check the immigration status of an employee or prospective new hire. Use of E-Verify is voluntary, but President Bush signed an executive order last year making it mandatory for federal contractors beginning in 2009. In early January, the government delayed the rule until Feb. 20. Francesca Cheroutes, an attorney at Shughart, Thomson & Kilroy PC in Denver who specializes in labor and employment law, said: “The statutes that cover this also prohibit discrimination. … Trying to do what the government wants you to do, in terms of making sure that your work force is authorized, and not [incurring] a discrimination suit is very difficult.”
Those new rules already have been signed into law. But other workplace measures either have been, or are expected to be, introduced in Congress in 2009. They include:
• The Employee Free Choice Act. The measure would eliminate the secret ballot system used to organize unions in workplaces, and replace it with union representation based on a simple card check. A Senate filibuster defeated it in 2007, but many expect it to re-emerge in 2009 now that Democrats control Washington.
• The Paycheck Fairness Act. This bill, which the U.S. House of Representatives passed this month and which was headed to the Senate at press time, makes it easier for workers to sue for discrimination and allows them to collect punitive and compensatory damages, instead of just back pay.
• The Lilly Ledbetter Fair Pay Act. This bill also passed the House and is now pending in the Senate. It would overturn a 2007 Supreme Court ruling, in Ledbetter v. Goodyear Tire & Rubber Co., that requires workers to sue within 180 days of a discriminatory action, such as a hiring, promotion or raise. The Fair Pay Act would begin a new 180-day statute of limitations with each paycheck.
• The Americans with Disabilities Amendment Act of 2008. In the 18 years since the Americans with Disabilities Act (ADA) became law, several Supreme Court rulings narrowed the definition of a disability, making it easier for employers to defend themselves from discrimination cases. This measure rejects those decisions. It broadens the scope of what’s considered a disability and requires employers to ignore most mitigating measures — such as prosthetic limbs, medications or hearing aids — when determining disability. The Congressional Budget Office has estimated that the new rules will lead to a 10% increase in annual discrimination complaints. “We think that’s low,” Archer said.
• Military Family Leave. This change in the Family Medical Leave Act permits employees to take up to 26 weeks of leave to care for an ill or injured serviceperson. They must be a spouse, child, parent or next of kin of the employee. Additionally, Guard members or reservists, as well as their family members, are eligible for up to 12 weeks’ leave to deal with issues related to deployments.
• Mandatory use of E-Verify. E-Verify, an online system operated jointly by the Department of Homeland Security and the Social Security Administration, lets employers enter a Social Security number and check the immigration status of an employee or prospective new hire. Use of E-Verify is voluntary, but President Bush signed an executive order last year making it mandatory for federal contractors beginning in 2009. In early January, the government delayed the rule until Feb. 20. Francesca Cheroutes, an attorney at Shughart, Thomson & Kilroy PC in Denver who specializes in labor and employment law, said: “The statutes that cover this also prohibit discrimination. … Trying to do what the government wants you to do, in terms of making sure that your work force is authorized, and not [incurring] a discrimination suit is very difficult.”
Those new rules already have been signed into law. But other workplace measures either have been, or are expected to be, introduced in Congress in 2009. They include:
• The Employee Free Choice Act. The measure would eliminate the secret ballot system used to organize unions in workplaces, and replace it with union representation based on a simple card check. A Senate filibuster defeated it in 2007, but many expect it to re-emerge in 2009 now that Democrats control Washington.
• The Paycheck Fairness Act. This bill, which the U.S. House of Representatives passed this month and which was headed to the Senate at press time, makes it easier for workers to sue for discrimination and allows them to collect punitive and compensatory damages, instead of just back pay.
• The Lilly Ledbetter Fair Pay Act. This bill also passed the House and is now pending in the Senate. It would overturn a 2007 Supreme Court ruling, in Ledbetter v. Goodyear Tire & Rubber Co., that requires workers to sue within 180 days of a discriminatory action, such as a hiring, promotion or raise. The Fair Pay Act would begin a new 180-day statute of limitations with each paycheck.
