2008 Reviewed, 2009 Forecast, Eight Words Or Less
By
Richard Meneghello
(Labor Letter, December 2008)
You may have noticed that the length of what you're reading these days is getting shorter and shorter. People's attention spans are shrinking, as is the content of much of what is being published. Some of today's popular websites include "Five Word Reviews" and "Four Word Film Reviews," and one of 2008's best selling books was "Not Quite What I Was Planning," a collection of memoirs of six words or less (for example, Joyce Carol Oats: "Revenge is living well, without you," and Stephen Colbert: "Well, I thought it was funny").
The popularity of Twitter.com (a chance for people to micro-blog to each other) and Facebook.com's Status Update feature are clear signs that people want to get their information in bite-sized chunks. Perhaps inspired by what Ernest Hemingway considered to be his greatest story (the six-word tragic masterpiece, "For sale: baby shoes, never used"), micro-writing will no doubt occupy a prominent place in 2009's popular culture.
So what better way to review the year that was in labor and employment law in 2008 and forecast the year that will be in 2009 than by providing summaries in eight words or less? For those with short attention spans and busy lives, this column is for you.
ADA Amendments Act: "I'm Disabled, You're Disabled, We're All
Disabled Now"
Perhaps the biggest news on the labor and employment law front for 2008/2009 is the passage of the Americans with Disabilities Act (ADA) Amendments Act, which will go into effect on January 1, 2009. The Amendments Act will greatly expand the scope of the ADA by lowering the standards necessary for employees to be considered "disabled." The new ADA expressly repudiates a series of pro-employer Supreme Court decisions from the past decade, and will likely end the run of success employers have enjoyed over this time defending ADA cases.
In terms of day-to-day impact, employers will find it necessary to consider accommodations for a wider spectrum of employees, and should find it unusual to reject an accommodation on the basis that the employee's mental or physical condition is not sufficiently limiting. And, employers will be forced to ignore most mitigating measures such as prosthetics, medications, and assistive devices (but will be allowed to consider normal eyeglasses and contact lenses) when making the disability determination.
You should immediately adopt a new interactive process when working with your employees, and you will want to alter any interactive process questionnaires used for this purpose (click here for a sample). In 2009, expect to see new regulations published by the EEOC which will refine the contours of the new law and provide more specific guidance for employers. Also, expect the inevitable surge in new ADA lawsuits which will be filed early and often in 2009 and beyond.
EFCA and the New Union Threat: "Big Labor's Been Waiting 40 Years For This"
For the first time in 40 years, everything seems to have fallen into place for Big Labor. The Democrats captured Washington with the tremendous support of labor unions in 2008, which will no doubt lead to a groundswell of support for labor-backed legislation in 2009. The big question is whether the gains in Congress will be sufficient to allow full passage of a slew of measures at the forefront of Big Labor's agenda. The crown jewel of the new legislative plan is the Employee Free Choice Act (EFCA), which was only defeated by a Senate filibuster and a planned Bush veto in 2007. It will no doubt reemerge in some form or another in 2009.
If passed as currently written, EFCA would eliminate the secret ballot system for determining whether unions are organized in a workplace and allow union representation upon simple card checks. This would mean that employers might not even realize a union is being organized at their workplace until it is too late to do or say anything about it. Also, it would require arbitration to resolve differences between unions and employers negotiating collective bargaining agreements, and would stiffen penalties for unfair labor practices.
Other items on the unions' strategy plan include: the R.E.S.P.E.C.T. Act, which would allow many exempt supervisors a chance to join the ranks of organized union labor, and would no doubt lead to conflict of interest and loyalty problems at many worksites; the Patriot Employer Act, which would offer tax incentives to companies that, among other things, agreed to neutrality during union-organizing drives; and the Working Families Flexibility Act, which would establish a mandatory grievance procedure and allow employees to file a charge with the Department of Labor if they did not agree with employer decisions on pay, work hours or location.
So-Called Fairness Acts: "Think Courts Are Crowded Now? Just You Wait…"
With Democratic control of both the White House and Congress, you can expect that 2009 will include a series of pro-employee pieces of legislation set forth for debate. Obviously, most of Washington has economic recovery on the front burner for 2009, and may find it difficult to spend a great deal of energy or political capital on other ideas such as civil-rights legislation. But expect to see any number of these possible laws championed by the new President or members of Congress:
The Arbitration Fairness Act – If this law is passed, employers would no longer be able to arbitrate employment, consumer and franchise disputes. The new law would specifically prohibit arbitration in civil-rights cases, contracts or regulations that involve "parties of unequal bargaining power." If interpreted as broadly as expected, this would provide a massive blow to cost-effective alternative dispute resolution procedures currently used by employers across the country.
The Class Action Fairness Act (CAFA) – Many civil justice
advocates have been displeased with the impact of CAFA on
employment claims, specifically wage and hour class actions. Expect to see some tinkering with CAFA in order to dilute its effectiveness and to spur an increase in class enforcement of employee claims.
The Fair Pay Act/Equal Remedies Act – These pieces of
legislation would overturn the Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. and would expand the interpretation of discrimination claims to allow plaintiffs to reach further back in time when filing such claims. Although Republicans have proposed a modified (read watered-down) version of the bill, many Congressional experts expect this new to pass as is.
The Family and Medical Leave Act – Various proposals on the table include lowering the coverage threshold from 50 to 25 employees, expanding leave coverage options to include time off for parent-teacher meetings and regular dental or medical visits, and providing paid leave for a portion or the entire leave period. Also, 2009 will most likely see the finalization of regulatory amendments that have been on the table for several years now, although the status of the specific changes remains up in the air.
Other legislative items either supported by President-Elect Obama or key members of Congress include increasing the minimum wage to $9.50/hour by 2011, expanding Title VII's coverage to include sexual orientation as a protected class, and banning the permanent replacement of striking workers.
Immigration Enforcement: "Can't Stick Your Head In The Sand
Anymore"
Although 2008 was a stop-and-start year when it came to the finalization of the no-match rule, expect 2009 to be the year that sees employers receiving no-match letters from the Social Security Administration. If employers fail to take the proper action in a timely fashion after receiving these letters, the government will hold them accountable for employing workers known to be unauthorized to work in the country.
Repeated violations will almost certainly lead to criminal sanctions. Moreover, Immigration and Customs Enforcement (ICE) has announced that workplace raids and enforcement actions will continue to be a priority in 2009, as a new level of inter-agency cooperation between federal and state offices will allow the government to target non-compliant employers with a high degree of accuracy.
From a bigger picture perspective, President-elect Obama supports a path to citizenship for foreigners in the country illegally, but it does not appear that quick solutions exist to accomplish that goal. Employers may have to wait until at least 2010 to see comprehensive immigration reform that would provide a certain measure of comfort and stability to those in high-risk industries.
Religious Accommodation: "Employers' Prayers Answered With Some Clarifying Guidance – Amen!"
Employers have some cause for relief in 2009, the result of guidance published by the EEOC in 2008 on the topic of religious discrimination and accommodation. Although the Enforcement Guidance cannot be considered ardently pro-employer, it does offer some necessary assistance in the often confusing world of religious accommodation.
Religious-discrimination claims filed with the EEOC have doubled over the past 15 years, leading the government to sort out what's what. The EEOC recommends that an ADA-style interactive process take place whenever an employer realizes or an employee requests the need for a religious accommodation. These most often relate to work schedules, dress or grooming policies, and religious expression at work. Whether an accommodation is necessary or reasonable is a fact-dependant analysis, taking into account the nature of the duties involved, the cost of the accommodation, and the number of employees impacted, among other things.
Two pieces of good news for employers: the EEOC confirmed that the "undue hardship" defense, used to reject a religious-accommodation request is easier to prove than the ADA's similar defense, especially if the employer can show that the proposal would decrease efficiency, infringe on the rights of others, or impact safety. Also, the EEOC said that Christmas decorations are acceptable in the workplace and should not spark fear of a religious-discrimination claim, and that employers have no obligation to allow alternative holiday decorations proposed by employees.
Supreme Court Happenings: "Is The Revolution Over Before It Began?"
Finally, a review of the 2007-2008 Supreme Court term proves that the myth of the conservative Court is all but dead. Although the outgoing administration worked hard to install two seemingly pro-businesses Justices to the Court (Chief Justice Roberts in 2005, and Justice Alito in 2006), and only two Democratically-nominated Justices remain (Justices Ginsburg and Breyer), the Court has not taken the pro-business leaning that many expected. Of the eleven labor-and-employment decisions handed down by the Court in the last term, only four can be considered victories for employers, and none of them can be considered groundbreaking.
In fact, the most significant victory for employers – a decision
upholding the power of the Federal Arbitration Act (Preston v. Ferrer) – may very well be a victim to new legislation proposed by Congress. Of the seven employer losses, three might spell significant trouble, especially in a rough economic climate: forcing employers to shoulder the burden of proving the legitimacy of RIFs and layoffs (Meacham v. Knolls); allowing 401(k) plan participants seeking recovery of retirement account losses to sue based on alleged breaches of fiduciary duty (LaRue v. Wolff); and clearing the path for employees to bring race- or color-discrimination claims in other ways besides the traditional Title VII model (CBOCS West v. Humphries).
In 2009, expect to see Supreme Court decisions on public-union agency fees, Title VII retaliation, arbitration, and pregnancy-discrimination claims, among others. Over the next four years, some of the more liberal members of the Court (perhaps 88-year-old Justice Stevens or 75-year-old Justice Ginsburg) may retire and be replaced by equally pro-employee Justices. Although these appointments would not likely reshape the Court in any dramatic manner, they would prevent employer-advocacy groups from gaining the all-important five Justice block they have so desperately sought.