2009 EMPLOYMENT LAW UPDATEKeith M. Weddington

May 6, 2009

U.S. SUPREME COURTCBOCS West (May 27, 2008)

§1981 encompasses retaliation claims.

Plaintiffs can bypass administrative hurdles of Title VII.

Potential for broadened exposure for employers due to longer statute of limitations.

Consistent with recent decisions expanding scope of retaliation claims.

U.S. SUPREME COURTMeacham v. Knolls Atomic Power

Laboratory (June 19, 2008)

Under ADEA employer bears burden of persuasion on “reasonable factors other than age” (RFOA) defense

Plaintiff still retains burden to isolate and identify specific employment practices responsible for alleged disparities

Documentation to establish RFOA is essential

U.S. SUPREME COURT

Taylor v. Progress Energy

Fourth Circuit previously held that private releases of claims under FMLA without court or DOL supervision are unenforceable.

Supreme Court declined review. New FMLA regulations now permit

unsupervised release of past claims.

U.S. SUPREME COURTKentucky Retirement Systems v. EEOC (June

19, 2008)

Using age as a factor in a retirement plan does not violate ADEA as long as age and pension status remain analytically distinct concepts.

Pension and other benefit plans may include age as a factor.

Plaintiff retains burden to prove differential treatment was “actually motivated” by age rather than pension status.

U.S. SUPREME COURT Crawford v. Metropolitan Gov’t of Nashville

(January 26, 2009)

The anti-retaliation provision of Title VII protects a worker from being dismissed because she cooperated with her employer’s internal investigation of sexual harassment.

Employers should not be reluctant to conduct investigations for fear of arming employees with potential basis for a retaliation claim.

U.S. SUPREME COURT

Penn Plaza LLC v. Pyett (April 1, 2009)

Provision in collective bargaining agreement that clearly requires union members to arbitrate ADEA claims is enforceable as a matter of federal law.

When drafting CBAs employers and unions must specifically identify any statutory claims they want to be subject to arbitration.

Continues the trend of decisions favoring arbitration.

U.S. SUPREME COURT

AT&T Corporation v. Hulteen (Argued December 10, 2008)

Issues: Whether an employer engages in a current violation of Title VII by failing to restore service credits that female employees lost when they took pregnancy leave under then lawful pre-Pregnancy Discrimination Act leave policies.

Whether 9th Circuit’s finding of a current Title VII violation in such case gives impermissible retroactive effect to the PDA.

U.S. SUPREME COURT

Ricci v. DeStefano (To be scheduled)

Issue: Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to race discrimination charges.

4TH CIRCUITWelch v. Chao (August 5, 2008)

For employee’s complaint to be “protected activity”, employee must show that complaint to employer “definitively and specifically” related to one of laws in SOX whistleblower provision.

Rejected argument that any failure to comply with GAAP constitutes per se violation of SOX.

4TH CIRCUITLightner v. City of Wilmington

(November 3, 2008)

Title VII not intended to police standards of general fairness.

Court will scrutinize whether comparators are really comparable.

Supervisors can be held to higher standards

4TH CIRCUITZiskie v. Mineta (November 14, 2008)

Offensive conduct not witnessed by plaintiff may contribute to her claim for hostile work environment.

But, 4th Circuit reiterates requirement for more than merely crude behavior.

Prevention and proactive employment practices are keys to avoiding claims and liability.

4TH CIRCUITJones v. Calvert Group Ltd (January 5, 2009)

Plaintiff who files pre-termination EEOC charge of retaliation can sue for retaliatory discharge without filing a new EEOC charge.

Retaliation claims continue to find favor with the courts.

NORTH CAROLINAMedical Staffing Network v. Ridgway

(January 2009)

Non-compete was overbroad because it restricted competition with unrelated business of parent, divisions, subsidiaries and affiliates.

Limit non-competes to employer’s business and employee’s duties.

Sign employees to new agreements if “affiliates” language is overly broad.

Establish paper trail to show legitimate business interest in broader restriction.

NORTH CAROLINAHejl v. Hood, Hargett & Assoc., Inc.

(April 2009)

One time payment of $500 in exchange for signing noncompete was adequate consideration.

“Slightest consideration is sufficient to support the most onerous obligation”.

But…don’t get crazy!

LEGISLATIONGenetic Information Nondiscrimination

Act (GINA)

Employment provisions effective November 21, 2009

Prohibits employers and health insurers from intentionally collecting employee genetic or family medical history

Prohibits discrimination on the basis of an individual's genetic information

Prohibits retaliation Genetic info must be kept confidential

LEGISLATIONGenetic Information Nondiscrimination

Act (GINA)

Interplay between GINA, ADA & FMLA

Same remedies as Title VII Employee training is a must

LEGISLATIONADA Amendments Act (ADAAA) of 2008

Effective January 1, 2009. Substantially expands definition of “disability”

and significantly increases the number of persons protected by the ADA.

Impairment must be considered without corrective measures (except eye glasses/contacts). Includes those that are episodic or in

remission. Expands definition of “major life activities”,

adding “eating, sleeping, walking, standing, lifting, bending, reading, concentrating, thinking, communicating” as well as bodily functions.

LEGISLATIONADA Amendments Act (ADAAA) of 2008

Less focus on disability, more emphasis on reasonable accommodation.

More difficult to dismiss claims on summary judgment.

Settlement value of claims significantly increased.

LEGISLATIONRevised I-9 Form

Effective April 3, 2009. Employers are required to use a

revised version of the I-9 employment eligibility form.

No expired documents allowed.

Full compliance with I-9 procedures can help protect employer from sanctions. 

LEGISLATIONLily Ledbetter Fair Pay Act

Effective January 29, 2009; retroactive to May 28, 2007 for all claims pending on or after that date.

Reverses Supreme Court’s 2007 decision in Ledbetter v. Goodyear, which required charge of pay discrimination to be filed within 180 days of discriminatory decision. 

Makes each subsequent paycheck reflecting the old discrimination a new illegal act under Title VII.

LEGISLATIONLily Ledbetter Fair Pay Act

Time for bringing pay discrimination claims now begins to run:

When discriminatory compensation decision or practice affecting compensation is adopted;

When individual becomes subject to a discriminatory compensation decision or practice; or

When individual is affected by application of a discriminatory compensation decision, including each time wages, benefits or other compensation is paid.

LEGISLATIONLily Ledbetter Fair Pay Act

Tips: Review current compensation

systems. Consider options to eliminate

possible continuing effects of past compensation discrimination.

Review record keeping procedures to make sure relevant documents or records are preserved and available.

LEGISLATIONFamily and Medical Leave Act

New regs effective 1/16/09. Military leave provisions:

Military Caregiver Leave (26 weeks) Qualifying Exigency Leave (12 weeks)

New DOL forms for notice and medical certification.

Pre-eligibility leave granted by employer does not count towards 12 week entitlement.

LEGISLATIONStimulus Act Changes to COBRA

Employees who have involuntary employment loss between 9/1/08 and 12/31/09 get COBRA coverage for 35% of cost they would otherwise pay.

Employer pays remaining 65%, but gets a tax credit.

Some former employees without COBRA coverage get a second chance to elect.

New forms for COBRA notice.

LEGISLATIONEmployee Free Choice Act (EFCA)

Pending legislation; latest version introduced in Congress on March 10, 2009.

Seeks to amend the NLRA: to certify union based on card check

alone – no secret ballot election, to require binding arbitration of first

contracts after 120 days, and to stiffen penalties for certain unfair

labor practices.

LEGISLATIONPaycheck Fairness Act (PFA)

Pending legislation. Passed by House on January 9, 2009. Reminder: Under the current EPA, employers

can defend a claim by showing that there is any factor other than sex that explains the claimed pay disparity. 

Under PFA, employer will bear the burden of not only demonstrating that the differentials are based on factors other than sex, but that there are no conceivable alternatives that would allow the jobs to have the same salary.

Keith M. WeddingtonAttorney at Law

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