Current Issues in Labor & Employment Law:What to Expect in 2011

Presented By:G. Mark Jodon & Alexis C. Knapp

Agenda

• Employee Leaves Under the “New” ADA & FMLA

• Increased Agency Enforcement• Emerging Social Media Issues in the

Workplace• The Rise in Retaliation Claims

Employee Leave Issues Under the “New”ADA and FMLA

ADA Basics Still in Effect

• The anti-discrimination piece• The affirmative obligation piece – to

reasonably accommodate• Major Issues

– Who is covered – “qualified individuals with a disability”

– How far an employer has to go – the “undue hardship” standard

The ADA Amendments Act (ADAAA)

• More employees and applicants may qualify as “disabled”

• The increased importance of the interactive dialogue

• Getting creative with reasonable accommodations

• Regulations coming soon• Unanswered questions

FMLA Basics Still in Effect

• Who Can Take Leave – Employees Who:– Have a qualifying reason for leave;– Work for a covered employer – 50+; – Are employed at a worksite with 50+ people in a

75-mile radius; and– Have been employed for at least 12 months and worked

1,250 hours during the preceding 12 months.

• What it Provides– Unpaid leave (12 or 26 weeks)– Maintenance of benefits– Reinstatement rights

Changes in the Recent FMLA Regulations• Helpful clarifications for employers

– Enforcement of policies, bonuses, additional time, increased utility of medical documentation

• Some increases in employee rights– Light duty rules, ripening of leave, military leave

• New forms: http://www.dol.gov/whd/fmla/• Changes since the regs?

– Military adjustments– Who is a “child” for FMLA purposes– Flight attendant rules (others coming?)

The Inevitable OverlapADA, FMLA, Workers’ Comp• Different Origins and Purposes

– FMLA – serious health condition (job and benefits)

– ADA – qualified individuals with disabilities (accommodation and non-discrimination)

– Workers’ comp – on-the-job injuries (medical expenses and wage replacement)

• Employees who qualify for all three?

The Inevitable OverlapADA, FMLA, Workers’ Comp• What the EEOC has to say• What will be “reasonable?”

– Concerns over your beloved neutral absence control/no-fault attendance policies

– Light duty policies

Increased Agency Enforcement

Increased Agency EnforcementEEOC• 2010 – Another record year for

discrimination charges• Age-based stereotypes• ADA: Neutral Attendance Policies vs.

reasonable accommodation obligation• GINA• Retaliation: #1 Charge

Increased Agency EnforcementDOL - Wage & Hour Division• Investigative Focus

– In 2009, hired 250 new investigators; in 2010, 100 more

– The “We Can Help” Campaign • http://www.dol.gov/wecanhelp/

– Misclassification • Employee v. Independent Contractor• Exempt v. Non-Exempt

– Off-the-Clock Issues• Travel• Meetings• Preliminary/Postliminary Activities

• Costly Remedies

Increased Agency EnforcementNLRB• Disguised “EFCA” Initiatives• Expected Reversals in NLRB cases• Employee Handbooks used to support ULP

charges• Facebook: Protected Concerted Activity?• NLRA policy carve out

Emerging Social Media Issues in the Workplace

Social Media: Changing the Landscape (again)• “Web 2.0”• Facebook, Twitter, MySpace, LinkedIn,

blogs, company web boards, “vent” sites, etc.

• Expanded discrimination, harassment and retaliation concerns – are your policies inclusive enough?

• “Friend” requests between employees and management

• Providing “LinkedIn” references for former employees

Social Media Landmines for Employers (so far...)• Concerted activity and unlawful

surveillance– Hawaiian Airlines

• Accessing restricted pages – Houston’s Restaurant

• Monitoring text messages– Ontario Police Department

Retaliation

Retaliation

• 2010: 36% of all EEOC Charges • Elements of the Claim• Direct & Circumstantial Evidence• U.S. Supreme Court opens door for even

more retaliation claims– Thompson v. North American Stainless, LP

• Review Your Anti-Retaliation Policies• Train Your Supervisors

Thank You! Questions?

G. Mark Jodon713.652.4749

mjodon@littler.com

Alexis C. Knapp713.652.4706

aknapp@littler.com