Iowa Employment Law Blog : Iowa Employment Lawyer & Attorney : Patrick Smith : Bradshaw Fowler Proctor & Fairgrave Law Firm : Des Moines, Central IA Discrimination & Labor Law

This is the time of year for reflection--when we look back on what happened during the past year, and look ahead to the coming year.  There are many commentaries and opinions on what was good and bad about 2009, but there is no doubt it was an eventful year for those of us in the labor and employment law world.    In this post we give a month-by-month account of the significant employment law events of 2009:

January:   To usher in the new year, on January 1, the ADA Amendments Act became effective.  On January 26, the U.S. Supreme Court issued a ruling in Crawford v. Metro Metro Government of Nashville, which held that an employee who answered questions as part of an internal harassmenti nvestigation was protected from retaliation under Title VII's "opposition" clause.  On January 29,  President Obama signed into law the Lilly Ledbetter Fair Pay Act.  The Ledbetter Act was the first law the President signed after his inaugeration.  

February:  The president signed into law the American Recovery and Reinvestment Act of 2009 (a/k/a the "Stimulus").    Important to employers and employees, the law provided a 65% premium subsidy for nine months to employees involuntarily terminated from their jobs since September 1, 2008.  

March:   On March 10 the Employee Free Choice Act (EFCA) was introduced in both houses of Congress.   The proposed EFCA contained the most signicant changes to labor law since the NLRA was enacted in the 1930s.  While the law was and is a top priority for labor unions to get enacted, so far its most controversial provisions, inlcuding elimination of secret ballot elections,  mandatory arbitration, and increased penalties for unfair labor practices make the proposed law unpopular with business interests.

April: The U.S. Supreme Court issues its second labor and employment decision this year: Penn Plaza, LLC v. Pyett.   The Court held that “a collective-bargaining agreement that clearly and unmistakably requires a union member to arbitrate ADEA claims is enforceable as a matter of federal law.”  On April 24, the EEOC issued a "Best Practices" document relating to employees with caregiving responsibilities.    The Iowa Supreme Court issued its decision in the case of Varnum v. Brien, which held that Iowa's law that permitted marrigage licenses to be issued only to a man and a woman violated the Iowa Constitution.

May:  On May 1 Governor Culver signed the Iowa version of the Ledbetter Fair Pay Act.  This law amended to the Iowa Civil Rights Act to incorporate provisions of both the Ledbetter Act and the Equal Pay Act.    The H1N1 pandemic was in the news, and the EEOC issued guidelines to help employers comply with the anti-discrimination laws while helping stop the spread of the disease.   Sonia Sotamayor was nominated to replace the retiring Justice Souter on the U.S. Supreme Court.

June:  The U.S. Supreme Court issued two important employment law decisions this month: Gross v. FBL Financial Services, Inc. and Ricci v. DeStefano.    While there is some disagreement, our view is that both decisions were favorable for employers.

July:   The phenomenon of social networking and its impact on the workplace is becoming the issue de jour.    Al Franken is confirmed as the winner of the Senate election in Minnesota, which gives the Democrats a 60th seat and filibuster proof majority.  However, the proposed EFCA law still goes nowhere.  With the economy still in the doldrums, the Department of Labor issues a document addressing frequently asked questions relating to furloughs.

August:  It's the dog days of summer, which means the Iowa State Fair, and controversy over allegations of religious discrimination.

September:  The Iowa Supreme Court issues a ruling in DeBoom v. Raining Rose, Inc. one of the court's most important employment discrimination decisions.   The EEOC released proposed regulations on the ADA Amendments.  In wage and hour news, convenience store chain Casey's General Stores paid $11 million to settle FLSA claims of thousands of current and former employees.

October: President Obama signs into law modifications to FMLA relating to military caregiver leave and qualifying exigency leave relating to military service.

November: The Genetic Non-Discrimination Act becomes effective November 21.  Data from both the Iowa Civil Rights Commission and EEOC show officially what many of us observed in our practices: an uptick in discrimination claims this year.  On November 30, the Eighth Circuit issues an opinion in the remand of Gross v. FBL Financial.   Despite Gross' arguments that his jury verdict under the Iowa Civil Rights Act should stand, the court sent the case back to the Southern District of Iowa for a new trial.

December:  The U.S. Department of Labor issued an "Employment Law Guide" which covers topics such as wage and hour, occupational safety, and employee benefits, among others.   The EEOC and Department of Labor release their regulatory agendas for 2010.   Finally, President Obama signs a law that will extend the COBRA subsidy another two months, until February 28, 2010.

Best wishes for the rest of 2009 and a happy and prosperous 2010!

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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…."

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Employers should take note of a recent EEOC publication entitled "Employer Best Practices for Workers with Caregiving Responsibilities", available on the EEOC website, or by clicking here.   

Although an employee's status as a caregiver is not protected under any federal or Iowa law, the EEOC nonetheless takes the position that discrimination against such employees can constitute discrimination on the basis of characteristics that are legally protected, such as sex or disability.   EEOC "Best Practices" documents do not carry the force of law, but are intended to provide suggestions for practices that employers may adopt to reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity.  Best practices are proactive measures that go beyond federal non-discrimination requirements.    As courts often defer to the EEOC's interpretation of the discrimination laws, employers should familiarize themselves with some of the EEOC's suggestions.

The EEOC recommends that employers develop, disseminate, and enforce a strong EEO policy that clearly addresses the types of conduct that might constitute unlawful discrimination against caregivers based on characteristics protected by federal anti-discrimination laws.   The document states that an "effective" policy should include, among other things, the following:

• Definitions of relevant terms, including “caregiver” and “caregiving responsibilities.
  • Provide an inclusive definition of “family” that extends beyond children and spouses and covers any individual for whom the applicant or employee has primary caretaking responsibilities.
• Describe common stereotypes or biases about caregivers that may result in unlawful conduct, including:
  • assuming that female workers’ caretaking responsibilities will interfere with their ability to succeed in a fast-paced environment;
  • assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees;
  • assuming that male workers do not, or should not, have significant caregiving responsibilities;
  • assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work;
  • assuming that female workers who are caregivers are less capable than other workers; and
  • assuming that pregnant workers are less reliable than other workers.
  •  
• Provide examples of prohibited conduct related to workers’ caregiving responsibilities, such as:
  • asking female applicants and employees, but not male applicants and employees, about their child care responsibilities;
  • making stereotypical comments about pregnant workers or female caregivers;
  • treating female workers without caregiving responsibilities more favorably than female caregivers;
  • steering women with caregiving responsibilities to less prestigious or lower-paid positions;
  • treating women of color who have caregiving responsibilities differently than other workers with caregiving responsibilities due to gender, race and/or national origin-based stereotypes;
  • treating male workers with caregiving responsibilities more, or less, favorably than female workers with caregiving responsibilities;
  • denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities; and
  • providing reasonable accommodations for temporary medical conditions but not for pregnancy.

 Proactive employers would do well to review their policies to take into consideration potential discrimination claims by employees with caregiver responsibilities.

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