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Change is in the Air: The Obama Administration’s Labor … · 1 Change is in the Air: The Obama...
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1 Change is in the Air: The Obama Administration’s Labor and Employment Initiatives Jeff Nowak (312) 786-6164 [email protected] www.franczek.com
Transcript of Change is in the Air: The Obama Administration’s Labor … · 1 Change is in the Air: The Obama...
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Change is in the Air:The Obama Administration’s
Labor and Employment InitiativesJeff Nowak
(312) [email protected]
Webinar details Please turn up your computer speakers to hear
the Webinar audio Questions may be submitted by entering
question in box on bottom right of the screen If you need assistance during the webinar,
contact Tony Capecci at (312) 786-6580 or [email protected]
Illinois MCLE credit is available; for details and instructions, refer to email that will be sent to attendees following the presentation
Our Firm National labor and
employment practice Counsel and represent
employers exclusively in all aspects of labor and employment law
With over 50 attorneys, it is the largest, single-office labor and employment boutique in the Midwest and one of the largest in country
Website: www.franczek.com
Jeff NowakFranczek Radelet P.C.
300 South WackerSuite 3400
Chicago, IL 60606(312) 786-6164
Agenda
1. 2008 Election … a mandate?
2. Workplace initiatives: What’s Already Happened?
3. What to Look For in 2010: more workplace initiatives
4. EEOC: Has the agency officially lost its mind?
Obama: most votes in U.S. history; solid margin in the popular vote
Lopsided margin in electoral vote: includes most “swing”states: Florida; Indiana; Nevada; Ohio; Pennsylvania; Wisconsin; Michigan
Campaign built with labor: Unions spent estimated $335 million to elect Obama SEIU reportedly spent $80 million in support, knocked
on 3.5 million doors, placed over 16 million calls AFL-CIO mobilized a reported 250,000 volunteers who
made 76 million phone calls and knocked on 14 million doors, delivered 29 million flyers at worksites
AFSCME: made 70 million phone calls, knocked on 10 million doors, 27 million flyers at worksites
2008 Election Results
Solid margin in the popular vote+
Lopsided margin in electoral vote+
Overwhelming union support=
MANDATE!?!
Obama Administration:Priorities –
The Workplace Extremely aggressive agenda—
expanding scope of traditional labor and individual employee rights
Plethora of legislative initiatives Represents paradigm shift in the role of
government in the workplace Repudiation of many Bush-era
developments
Change is Here:What Has Already Happened in Labor and Employment Law?
Lilly Ledbetter Fair Pay Act of 2009
President Obama signed law on January 29
Ledbetter v. Goodyear Tire & Rubber, 550 U.S. 618 (2007)
Supreme Court: EEOC charging period triggered when each discrete unlawful act takes place
Pay discrimination claims barred as to all decisions made more than 180 days prior to charge
“Current effects alone cannot breathe life into prior, uncharged discrimination.”
Minority opinion: Majority overlooks “characteristics of pay discrimination,” which are only revealed over time
Lilly Ledbetter Fair Pay Act of 2009
Lilly Ledbetter Fair Pay Act of 2009 First bill signed into law by President Obama Overturns 2007 Supreme Court Ledbetter decision and
endorses dissenting opinion Act of discrimination in compensation occurs when the
compensation decision was: Made or practice adopted; EE becomes subject to decision/practice; or EE is affected by the decision/practice, including
each time wages, benefits, or other compensation paid – every paycheck
Lilly Ledbetter Fair Pay Act of 2009 Scope of Application?
“discriminatory compensation decision[s] orother practices”
Evaluations, job assignments, and other decisions that affect wage determinations
If linked to salary/wage levels, Act also likely covers compensation claims for discriminatory pensions, bonuses, and severance pay
Extends beyond Title VII to reach other anti-discrimination laws
How Should Employers respond?
Compile and review policies that reflect compensation policy—consistent?
Reevaluate documentation policies Meticulous personnel files Retain compensation documentation? How
long? Keep track of supervisors who have left?
Re-think how you link compensation to evaluations—e.g., lump sum bonus rather than pay increases?
How Should Employers respond?
Audit! Compensation at hire—effect on racial/gender groups Current employees—similar job, tight band Procedures for reviewing pay decisions Objective criteria for evaluations Document all reasons for employment decisions if they
might affect compensation Identify pay discrepancies which cannot be supported
by non-discriminatory reason Train!
2009 Workplace Initiatives In January 2009, President Obama Signed
Three Executive Orders Affecting Federal Contractors: Denies federal contractors reimbursement for
funds spent on activities designed to persuade employees to join or to not join a union
Requires that all federal contractors post a notice informing employees of rights under labor laws
Requires all successor contractors to extend right of first refusal to existing qualified employees
2009 Workplace Initiatives Remnants of prior Administration
ADA Amendments Act (1/1/09) Overturned Supreme Court decisions;
substantially expands definition of “disability” FMLA Revised Regulations (1/16/09)
Clarifies problematic provisions (e.g., “serious health condition,” calculation of leave time); addresses new provisions regarding military family members
2009 Workplace Initiatives
Supporting Military Families Act (part of Defense authorization bill) (10/27/09)Expands “exigency” and “caregiver”
leaves for military family membersEffective immediately; new
regulations to be issued; will supersede January 2009 regulations
2009 Workplace Initiatives Remnants of Prior Administration
Genetic Information Non-Discrimination Act (5/21/08) Effective November 21, 2009 Prohibits use or acquiring of genetic
information; requires confidentiality• “Family medical history” is covered• Beware of physical exams at offer stage
Publication of Final Regulations imminent
Change is on the Way:Obama Administration’s AnticipatedPriorities Regarding the Workplace
Employee Free Choice Act (EFCA)
Monumental changes to union organizing process Effects manner in which unions get in Forces a contract upon employer by a federal
arbitrator Significantly increased penalties
Introduced 3/10/09 (Kennedy + 40 sponsors) Fewer sponsors than in 2007
EFCA: Majority “Card Check” Current Law: Petition supported by at least
30% of employees is filed with NLRB = Secret ballot election held about 42 days later
EFCA: Majority cards rule (50% + 1) No secret ballot election No campaign, no opportunity to
communicate information to employees Cards Control Outcome: NLRB certifies
union upon showing of cards or petition
EFCA: First Contract Mediation and Arbitration
Current Law: Union and Employer negotiate, often for years, over terms of contract –decertification process available after one year
EFCA: Parties must start bargaining within 10 days
Mediation after 90 days “Interest” Arbitration after 120 days Arbitration decision binding for two years
– no appeal
Where does EFCA stand now?
Key Senators will not support EFCA in its current form: Arlen Specter (D-PA); Blanche Lincoln (D-
AR); Mark Pryor (D-AR); Mary Landrieu (D-LA); Dianne Feinstein (D-CA)
Does not appear to have support needed to pass in current form
Possible EFCA Amendments Rumored Amendments:
Expedited elections Increase union access to the
workplace Interest arbitration? Baseball-like arbitration (one side’s
“last offer” takes all)? Enhanced penalties
Will an amended version ever emerge?
2010 Legislative Initiatives Employment Non-Discrimination Act
Would prohibit employment discrimination on the basis of sexual orientation or gender identity
Introduced in the House in September 2009 Senate committee hearing testimony today 21 states have laws prohibiting discrimination
based on sexual orientation 12 states have laws prohibiting discrimination
based on gender identity
2010 Legislative Initiatives: Paid Sick leave may become reality Leave Expansion – several bills pending
Healthy Families Act: up to 7 days paid time off FMLA Enhancement Act
• Expands coverage from employers with 25+ employees• Would extend leave protections to teacher conferences or
regular doctor appointments FMLA Inclusion Act
• Extends leave protections to care for domestic partners, same-sex spouses, parents-in-law, adult children, siblings, or grandparents
Working Families Flexibility Act: must consider requests for change in terms and conditions
2010 Legislative Initiatives
Paycheck Fairness Act (Equal Pay) Current employer defense: difference in pay
based on any factor other than sex Would limit defenses to bona fide factors
such as education, training, or experience, and require specific proof
Stronger remedies
2010 Legislative Initiatives WARN Expansion (“Forewarn”)
Currently: employers with 100+ employees that layoff 50+ employees must provide 60-day notice of layoffs
“Forewarn Act”: employers with 75+ employees that layoff 25+ employees must provide 90-day notice of layoffs
RESPECT Act Would restrict “supervisor” status to those
employees who spend at least 50% of their time at work exercising traditional supervisory functions
2010 Legislative Initiatives Employee Misclassification Prevention Act
Would require employers to keep records of contractors who perform services and provide notice to each employee and contractor of their employment status
Protecting Older Workers Against Discrimination Act (proposed) Introduced in Congress last month Would overturn early 2009 Supreme Court decision
(Gross) requiring proof that age was the deciding factor in challenged action
Plaintiffs need only show that age was a motivating factor
Obama Administration:Healthcare
Plan to cover all Americans Employers must provide or substantially
contribute to employees’ healthcare or pay tax (payroll %) “Small businesses” exempt
Small business owners will receive a “small business health tax credit” for up to 50% of contributions made
EEOC:Has the agency officially
lost its mind?
2009 Agency Staffing EEOC
Hundreds of additional investigators and staff attorneys being hired
Enhanced enforcement Continuing/increased focus on:
Systemic discrimination (Ledbetter?) Criminal background checks Mandatory reporting of all medication
DOL Hiring almost 700 additional investigators, staff
attorneys Enhanced enforcement of wage laws, affirmative
action compliance
EEOC Litigation
EEOC’s Chicago District Office now targeting employers with “inflexible”leave policies that provide for automatic termination of employment at the conclusion of leave
EEOC v. Sears Roebuck EEOC v. SuperValu, Jewel-Osco EEOC v. UPS
EEOC Position
Maximum leave policies are not per se unlawful
However, policies must incorporate case-by-case assessment and right to request reasonable accommodation
Employers get no credit for past accommodations granted, such as extended leaves, so “automatic” terminations are unlawful
Reasonable accommodation may include assignment to temporary light duty position and/or additional leave
Best Practices
Review and, if necessary, revise leave policies, especially those with automatic termination provisions, to incorporate individualized assessment and reasonable accommodation
Consider whether maximum leave policy should be maintained at all
What to Look For in 2010 If Healthcare Reform passes, additional
Employer mandates are less likely Potential legislation – narrower list
ENDA; Paycheck Fairness; Protecting Older Workers
EFCA – Substantially amended Forewarn; RESPECT FMLA; Sick leave
Where the real action is: Agency-level adjudication, rulemaking and enforcement
Employer “To Do” List Update personnel policies
FMLA & ADA amendments Update EEO provisions regarding genetic information,
sexual orientation/gender identity (where applicable) Victims of domestic violence/sexual assault
Audit compensation policies & practices to avoid Ledbetterclaims (and keep the EEOC away!) Engage in “affirmative action” type analyses to review
compensation levels across gender/racial lines Analyze evaluation practices
Revise leave policies Avoid “automatic” termination upon conclusion of a leave
of absence Strategize whether and how to implement paid sick leave
Union avoidance training . . . to prepare for passage of EFCA (in some form)
New EEO Poster
Print the poster supplement using this link eeoc.gov/gina_supplement.pdf and post it alongside current “EEO is the Law” poster
-OR- Print the EEOC's November 2009 version of
the "EEO is the Law" poster using this link eeoc.gov/self_print_poster.pdf and post it in place of the current "EEO is the Law" poster
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Change is in the Air: The Obama Administration’s
Labor and Employment InitiativesJeff Nowak
(312) [email protected]
