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
Alexis C. Knapp713.652.4706
