Weekly Web Roundup

Posted on September 25, 2009 by Patrick Smith

The biggest news this week is the EEOC's release of the proposed regulations for the ADA Amendments Act of 2009.   This post from Jackson Lewis provides some of the highlights.   Note that these are proposed regulations.  There is a 60 day period during which the EEOC will receive comments.  After considering the comments, the EEOC will publish the final regulations and the date the regulations will become effective.   Stay tuned for more information and analysis.

Pop quiz: how many new federal employment laws have been passed by the 111th Congress in 2009 and signed into the law by the President?  Answer: one (the Lilly Ledbetter Fair Pay Act signed into law January 29, 2009). 

With all the buzz in the employment law community about the anticipated changes in 2009, some may be surprised by that answer. Employers should not rest on their laurels, however, because there are plenty of bills in the pipeline.   In this post, Dennis Westlind of World of Work blog identifies thirteen employment related bills that were introduced in 2009 and remain pending, including the Employee Free Choice Act (permitting union recognition by "card check", among other things;  Employment Non-Discrimination Act (prohibiting discrimination on the basis of sexual orientation or gender identity); Paid Vacation Act (mandating employers with 50 or more employees to provide paid vacation), and Paycheck Fairness Act (providing for "enhanced enforcement" of equal pay requirements between male and female employees).

Unpaid internships illegal?  In this post, Dallas Mavericks owner Mark Cuban rails against the Federal Wage and Hour Regulations that make the traditional "foot in the door" experience unlawful.  

Is there a looming crisis with wage and hour litigation?  Dan Schwartz at Connecticut Employment Law Blog and Jon Hyman at Ohio Employer's Law Blog show that, despite the buzz about wage and hour suits, the actual number of federal labor cases filed in their jurisdictions has remained steady.    The real concern is that many of these cases are collective actions, which can result in substantial monetary liability.   In May 2009, local convenience store chain Casey's General Stores paid over $11 million to settle two wage and hour collective actions filed by 7,600 former management level employees and 76,000 non-management employees.

Finally, according to the U.S. Department of Justice, the federal government has the right to read even the personal e-mail of its employees.    Notes one commenter on the ABA Journal site: "At least somebody is reading the emails I send to federal government employees…."

 

Tags: , , , , , , , , , ,

Good News on the ADA--One More Court Rules the Amendments Are Not Retroactive

Posted on July 22, 2009 by Patrick Smith

Earlier this year, we identified the Amendments to the ADA--known as the "ADAAA" --as one of the top human resources challenges of 2009.   The amendments became effective January 1, 2009.   One of the most significant changes in the new law as compared to the old ADA concerns the definition of "disability".   One of Congress intentions in the ADAAA was to overrule several U.S. Supreme Court cases which had interpreted the meaning of "disability" in a narrow way.   The Court's interpretation of "disability" under the old ADA caused many plaintiffs to have their discrimination suits dismissed because they were deemed as not having a disability.  Under the new law, most lawyers believe it will be much easier for a plaintiff to qualify as disabled.

One question that remained unanswered when the law became effective was whether the new definition of disability applied to alleged acts of discrimination that occurred before January 1, 2009. 

Two U.S. Circuit Courts of Appeal have now answered that question: the Fifth and D.C. Circuits.  In both cases, the courts held the ADAAA was not retroactive, and therefore applied only to alleged discrimination occurring after January 1, 2009.   Thus, for the cases based upon alleged discrimination before that date, the old standards still apply.  While other Circuits, including the Eighth, have not weighed in on this subject, it is doubtful any court will apply the law retroactively.    Unless Congress expressly mandates retroactive application of a law, which it did not in the case of the ADAAA, there is a presumption that it applies only to events that occur after the law becomes effective.    

In addition to decisions on this issue from the courts, it will be wise to keep track of the EEOC's new rules interpreting the ADAAA, which are still being developed.  The EEOC takes the position that the law itself is not retroactive, but it may contend that its regulations interpreting the law will be retroactive to January 1, 2009.  Because courts often defer to the EEOC's interpretation the anti-discrimination laws, the EEOC's rules are important to monitor.

We will keep you posted on decisions from other Circuits, as well as developments in the EEOC, addressing this important issue.

Hat Tip:  World of Work

Tags: , , , ,