Top 10 Employment Law Developments of 2009

As 2009 winds down, it’s a good time to reflect on the most important employment law developments in what has been a very busy year. Here are my top 10:

· The Obama Administration. Although many of his top priorities, like the Employee Free Choice Act, have not yet been accomplished, the new President must be at the top of the list. Health care reform, in whatever form, will have an enormous effect on the workplace where most employees get coverage. In addition, his nomination of former union lawyer, Wilma Liebman, to chair the National Labor Relations Board, portends changes real changes in the unionized workplace. (See Employment Law Update: The Union Revival Effort, Union Advocate, Hilda Solis, Named as Next Secretary of Labor)

· Lilly Ledbetter Fair Pay Act. The first bill signed into law by President Obama virtually eliminates the statute of limitation for claims of wage discrimination. In essence, a new claim is created every time an allegedly discriminatory paycheck is received. (See Lilly Ledbetter Fair Pay Act Signed Into Law, Lilly Ledbetter Fair Pay Act Will Become First Pro-Labor Legislation of 2009, Equal Pay Becomes Front Runner as Lilly Ledbetter Act Takes Center Stage, Equal Pay: Fair Pay Restoration Act Voted Down in Senate, More Fodder for the Fair Pay Debate, or A New Day for Employers.

· FMLA Regulations. The comprehensive revisions to the Department of Labor’s FMLA regulations became effective on January 16. These regulations, which failed to address may of the administrative complaints of employers, materially change how the FMLA is administered. They also explain how families of service members can take “military caregiver” and “qualifying exigency” leave.  See Presentation Materials: Recent ADA and FMLA Changes, New FMLA Regulations Explain Military-Caregiver Leave, New FMLA Regulations Define Scope of Active-Duty Leave, FMLA Servicemember Leave. “Military-Caregiver” Leave”, FMLA Servicemember Leave–“Active-Duty” Leave)

· ADA Amendments Act and Regulations. The ADAA became effective on January 1, and substantially expanded the scope of the ADA. Overturning a series of U.S. Supreme Court Opinions, the ADAA lowers the standard for determining whether a individual is disabled under the ADA. The EEOC issued proposed regulations on the ADAA on September 23rd.  (See Presentation Materials: Recent ADA and FMLA Changes)

· 5 to 4 Supreme Court Opinions. The Supreme Court decided three important employment-related opinions by a 5 to 4 vote.  In 14 Penn Plaza v. Pyett, the Court held enforceable a provision in a collective-bargaining agreement that “clearly and unmistakably” compels union members to arbitrate Age Discrimination in Employment Act (ADEA) claims.

In Ricci v. DeStefano, the Supreme Court ruled that the City of New Haven improperly discriminated on the basis of race when it refused to certify the results of a promotional test on which white and Hispanic firefighters outperformed their black colleagues.  The majority said, “[R]ace-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.” (See Overview of the Risks Inherent to Employment Testing)

Finally, in Gross v. FBL Financial Services, the Court ruled that a plaintiff asserting a claim under the Age Discrimination in Employment Act must prove age discrimination was the “but-for” cause of an adverse employment action.  Legislation has already been introduced in Congress to overturn this decision.  (See Supreme Court Rules for Employers in Age-Discrimination Case).

· American Recovery and Reinvestment Act of 2009. ARRA, which became effective in February, provides a premium subsidiary for laid off employees who elect continued group health coverage under COBRA. Just yesterday, the House voted to extend the subsidy. The bill now goes to the Senate. If enacted in its current form, the end date for eligibility would change from December 31, 2009 to February 28, 2010 and the subsidy period would be extended to 15 months (from the current nine months). (See Employment Law Seminar Update: COBRA Presentation Slides, Stimulus Package’s COBRA Subsidy: Guidance Update, Guidance for Employers on the New COBRA Subsidy)

· Genetic Information Non-Disclosure Act. GINA, which became effective on November 21, 2009, prohibits discrimination against employees on the basis of genetic information. Delaware has long prohibited such discrimination.

· Employee Free Choice Act. One of the biggest surprises of 2009 is labor’s failure to get EFCA passed despite large democratic majorities in Congress and the support of the President. Reports are that Speaker Nancy Pelosi has pledged not to push for passage of EFCA until the Senate has voted first. What a difference a year makes.  (See Local Thoughts on the Employee Free Choice Act, Reverend Al Sharpton Speaks Out Against Employee Free Choice Act, Employment Law Update: The Union Revival Effort)

· E-Verify. Effective September 8, 2009, federal contractors and subcontractors are required to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify Clause.  (See USCIS Publishes E-Verify Supplemental Handbook For Federal Contractors, Mandatory E-Verify For Federal Contractors About To Begin, News on E-Verify for Federal Contractors, and Federal Contractor E-Verify Rule Is Final!)