Employment Law Update

Michael Patrick O’Brien
July 13, 2009 | COMMENTS

Members of Congress continue to introduce employment legislation at what seems a record pace. Among them is the Employment Non ‑ Discrimination Act of 2009 (ENDA) (H.R. 2981), which would prohibit employment discrimination based on sexual orientation or gender identity, defined to be identity without regard to gender at birth. The bill would also prohibit discrimination against an employee/applicant based on the real or perceived sexual orientation or gender identity of a person with whom that employee or applicant associates. The bill was reintroduced in the House with almost 120 co-sponsors, half of the votes needed for passage. Having come close to passage in the past, ENDA just may make it this year.

WARN Expansion Bill Reintroduced

First we had WARN, and now we have FOREWARN, the Federal Oversight, Reform and Enforcement Act (H.R. 3042, S. 1374), which has been reintroduced into Congress. This bill would expand the coverage threshold of WARN from employers with 100 employees to those with 75 employees. The bill would also redefine a plant closing as effecting 25, instead of 50 employees and also lower the trigger for a mass layoff. The bill would also require a 90-day notice before either event. Of course, you will recall that WARN currently requires a 60-day notice before a plant closure or mass layoff by any employer with 100 or more employees.

Congress Looks to Reverse SCOTUS on Age Bias

Just a few weeks ago, the Supreme Court of the United States (SCOTUS) ruled that a plaintiff bringing an age discrimination claim must prove that but for his/her age, the adverse job action at issue would not have happened. The court also held an employer did not have to prove it would have made the same decision even if there was some evidence of possible age bias. This ruling makes it much easier for employers to use win age-bias cases . . . but perhaps not for long. The chair of the House Education and Labor Committee has already announced he will hold hearings on the case and look to reverse it by legislation, much like the Lily Ledbetter Equal Pay Act reversed another SCOTUS decision.

EEOC to Establish Disability List

The Equal Employment Opportunity Commission (EEOC) has voted to amend its regulations to include a list of physical and mental impairments which are presumed to be disabilities protected by the Americans with Disabilities Act (ADA). The ADA requires the determination of whether someone is disabled to be made on a case-by-case basis, so this list would not be definitive. However, as you can imagine, it would carry a lot of weight. The proposed list of presumed disabilities includes: blindness, deafness, intellectual and developmental disabilities, partially or completely missing limbs, mobility impairments, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV-AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic syndrome, schizophrenia, asthma, high-blood pressure, coronary artery disease, learning disabilities, back and leg impairments, carpal tunnel syndrome, hyperthyroidism and other psychiatric impairments, such as panic attacks, anxiety disorder, and mild depression.

Minimum Wage Increases This Month

July 24, a Utah State holiday, also marks the effective date of the last scheduled minimum wage increase under current federal law. The wage will increase from $6.55 to $7.25 per hour on that date. Remember that employees who work in states with a higher minimum wage must apply that higher wage. Bringing us full circle to the first update above, Congress is considering further increases to the federal minimum wage. If Sonny and Cher were employment lawyers, they might say “And the beat goes on . . .” Stay tuned for further legislative news!

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship. Contact O'Brien at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.