Employers need to plan for the aging workforce—the “gray-haired demographic” is here to stay.

Aging Workforce News (AWN) talks about a newly introduced piece of legislation, the “Incentives for Older Workers Act.” The proposed bill is designed to provide incentives and eliminate barriers for older Americans wishing to stay in the workforce longer, and encourage employers to recruit and retain older workers. AWN explains some of the bill’s highlights:

Given the statistics on Baby Boomers in the workplace, this law could help employers deal with what Forbes.com calls the “Gray-Haired Workforce.” By 2010, the number of workers aged 35 to 44–or those typically moving into upper management–will decline by 19%; the number of workers aged 45 to 54 will increase 21%; and the number of workers aged 55 to 64 will increase 52%. These statistic show that the workforce will include more and more employees aged 45 and over for several years to come. And they’re not going anywhere—AARP reports that 79% of baby boomers say they have no plans to retire any time soon.

Genetic testing is a key advance in preventative health care. But opponents of DNA testing worry about privacy issues–that employers may use genetic data in making employment decisions. The Genetic Nondiscrimination Act of 2007 (GINA) is intended to prevent that.

The Act was unanimously accepted by the Senate with a vote of 95-0. After final approval from the House, it will go to the President’s desk for signature. It could be signed into law as early as next week. The act will protect individuals against discrimination based on their genetic information when it comes to health insurance and employment. These protections are intended to encourage Americans to take advantage of genetic testing as part of their medical care. The purpose of GINA is to ensure that anyone who gets genetic screening tests will be protected from having that information shared with health insurers or employers. Up until now, individuals who tested positive for a certain type of cancer gene could be denied insurance coverage or employment based on his or predisposition to developing cancer years down the road.

“It means that people whose genetic profiles put them at risk of cancer and other serious conditions can get tested and seek treatment without fear of losing their privacy, their jobs, and their health insurance,”

said Ted Kennedy (D-Mass.).

The debate is not a new one–the bill was rejected more than 10 times before it passed. And during those 10+ years, Delaware passed its own genetic antidiscrimination law. Delaware is one of 35 states to prohibit genetic discrimination in employment. State laws typically protect “genetic information.” A number of states, including Delaware, have passed or are considering bills that expressly include and requests for genetic services. The Delaware law also makes it unlawful for an employer to “intentionally collect” genetic information unless it can be demonstrated that the information is job-related and consistent with business necessity or is sought in connection with a bona fide employee welfare or benefit plan.

Of the 35 states with these laws, though, there has not been a single suit filed on the grounds of “genetic descrimination,” although the EEOC did settle a genetic-discrimination claim that was filed under the Americans With Disabilities Act. In that case, the employer, Burlington Northern Santa Fe Railroad, was alleged to have obtained blood samples from employees that would later be used for genetic testing, unbeknownst to the employees. The employer ceased the conduct within days of receiving the EEOC’s complaint and eventually settled the suit.

Additional Resources:
The National Conference of State Legislatures maintains a comprehensive website on laws dealing with genetics and genetic testing if you’re interested in where your state currently stands.

But the most detailed resource, by far is that of the National Human Genome Research Institute, (NHGRI) at genome.gov. The NHGRI’s site inlcudes dozens of helpful explanations about just about everything genetic–including the legal, social, and ethical implications of genetic testing.

To review GINA’s passage through the House and Senate, visit thomas.loc.gov.

From a women’s health perspective, U.S. News & World Report’s Deborah Kotz’s article is a worthy read.

And, as always, our friends at HR Hero has a whole cache of easy-to-read and to-the-point articles on the Genetic Testing page of their website.

F-M-L-A.

Four little letters that strike terror in the hearts of HR Managers around the country. And it’s not for want of trying. Employers want to comply–they really do. But the FMLA doesn’t make it easy. Enacted with good intentions, the statute and its enforcement regulations have become one of the biggest employer complaints. Business groups have been calling for a substantial revision of the “FMLA Regs” for some time. The Regs have made compliance cumbersome and difficult to truly understand. Unfortunately, they have also enabled the statute to be grossly misused by not-so-well-intended employees.

On February 8th, the Department of Labor took a major step towards an answer to the cries of employers and business-protection organizations by publishing new proposed regulations. Getting here has been a long time in the making. In 1996 and again in 2001, the DOL published studies on how the FMLA was being administered. Several decisions from the Supreme Court and countless lower court rulings have also had a great impact on how the Regs have been interpreted. And, in 2006, the DOL posted a Request for Information (RFI), in response to which it received 15,000 public comments, which were summarized in the DOL’s June 2007 Report on the RFI.

The Notice of Proposed Rulemaking (NPRM) is intended to be the culmination of these sources of comment and feedback.

At this stage of the rulemaking process, the proposed Regs are open for comment until April 11, 2008. Comments can be made online through the Federal eRulemaking Portal. After the commenting period closes, the DOL will review the comments and, at some point, publish new regulations.

Employers are encouraged to post their comments to the proposed regs as we work towards a clarified and improved set of FMLA rules.

An article in the latest issue of the CCH Workweek publication caught my attention. The article mentioned the “ADA Restoration Act” (H.R. 3195/S.1881). The Restoration Act of 2007 was introduced last July and currently is under consideration in Congress. The House Committee on Education and Labor held hearings on the bill on January 28 and 29, 2008.

The Proposed Changes

The Restoration Act would amend the ADA by deleting the current requirement that, to constitute a disability under the ADA, a physical or mental impairment must “substantially limit” the individual’s ability to perform “one or more major life activities.”

The new definition of disability would be a “physical or mental impairment,” period. And, in addition, the individual’s ability to mitigate the effects of a disability through medication or otherwise would become irrelevant.

All in Favor?

Advocates argue that the revision is necessary because the courts have taken such a narrow view of the ADA that its purpose of preventing and remedying disability discrimination has been virtually destroyed.

The U.S. Chamber of Commerce, the U.S. Department of Justice and the Society for Human Resource Management all oppose the bills, according to the American Association of People with Disabilities website.

The ADA Restoration Act may be flying under the radar due the recent changes to the FMLA but don’t underestimate the impact the proposed law could have.

There is a general agreement among commentators that Workplace Bullying is an undesirable workplace behavior that affects the bottom line. Bob Sutton’s book, The “No A**hole Rule”, was tremendously popular among the B-School types and HR professionals alike.

There has been a recent flood of proposed legislation that would make bully behavior unlawful. And, of course, laws that restrict are laws that have remedies. The legislation, thus far unsuccessful, would provide another basis for employment litigation.

At some point, there must be a cost-benefit analysis by legislators and advocates. Workplace bullying is bad for business. It leads to increased absenteeism and turnover rates, and is tied to reduced productivity and teamwork. The costs of recruiting and training, managing “problem employees,”
and trying to rally the affected employees’ support. These are all costs that the business must bear when it permits bullying to go on in the workplace.

But what is the cost of increased employment litigation to businesses? Any employer that has earned its stripes in the courtroom knows that the cost is no small burden. Litigation is expensive. More expensive than the direct and indirect impact of bullying?

Great question! At some point, those who are advocating for this new legislation should stop to have a look.

Not that I am an advocate of bullying, of course. But I do think that the recent movement against bullying will serve only to help prevent it. Part of prevention is knowledge. Now that employers are becomming more aware of the costs of bullying, the market will likely work to eradicate it far better additional legislation.

The U.S. Department of Labor has created a web page covering its proposed changes to the FMLA. The web page contains the text of the proposed changes, FAQ’s, and information about how to submit comments.

According to the Department’s press release:

Proposed changes include increased notice obligations for employers so that employees will better understand their FMLA rights, while revising the employee notice rules to minimize workplace disruptions due to unscheduled FMLA absences. The proposal also contains technical changes to reflect decisions by the Supreme Court and lower courts. A new section addresses recently enacted legislation to expand the FMLA entitlement to 26 workweeks for certain military family members caring for a service member with a serious illness or injury.

You can link to the DOL’s website here.

Congratulations! You have found what is sure to be a great addition to your favorite employment-law resources. This blog is hosted by the Employment Law Department at Young Conaway Stargatt & Taylor, LLP.

Our blog will keep you up to date on all of the latest happenings, news, and trends in the rapidly changing world of employment law. We know how difficult it can be to keep tabs on employment-related topics. To help you stay on top of it all, our posts will feature issues that we see in our practices and hear about from our clients.

Human resources and the law intersect at crucial times. And somehow, you’re expected to keep up with it all. We will keep you posted as developments occur, and try to provide a little insight along the way.

So, welcome to our new readers. The Delaware Employment Law Blog is sure to be a great resource for every employer, small business owner, in-house counsel, HR professional, recruiter, management consultant, executive, and manager that stops by. We’re looking forward to what is sure to be an adventure in blogging!