| Legal Updates
HOTTEST LEGISLATIVE, REGULATORY AND
LEGAL ISSUES FOR MARCH 2010
LEGISLATIVE
AND REGULARY DEVELOPMENTS
Legislative Developments
On December 21, 2009, President Obama signed into law an extension of the COBRA subsidy law that does two things. First, employees losing employer-based health coverage due to an involuntary employment loss on or before February 28, 2010, will be eligible to pay only 35% of the applicable premium. The old time period ended on December 31, 2009. Second, the new law extends from nine to fifteen months the period for which an employee may be eligible for this reduced premium. Revised notice forms have been developed by the DOL.
With its work on health care reform coming to a close, Congress may soon get around to moving on the Employee Free Choice Act, which has lied dormant for quite a while. With the expectation of losing Congressional seats in the 2010 mid-term elections, Democrats who have supported this Act are eager to pass it in some form in the first half of 2010.
The Employment Non-Discrimination Act (“ENDA”) would bar workplace discrimination on the basis of an individual’s sexual orientation, transgender status or gender identity. Strong opposition to the bill, particularly in the Senate, has slowed its consideration. President Obama has said he will sign the bill if it is presented to him.
- GINA Impacts Some Wellness Programs with Health Assessments
According to interim regulations issued by several federal agencies, the collection of family histories and other genetic information in connection with wellness plans may violate the Genetic Information Non-Discrimination Act (“GINA”). If such information is used to affect the cost of a health insurance plan to an employee or eligibility for participation in the plan, such an inquiry will be illegal. If any kind of reward for completing a health risk assessment that asks for genetic information (including family histories) is given, the Act will be violated. It would be permissible to collect such information if no rewards are offered and if the collection does not occur before or in connection with enrollment in the wellness plan.
- New EEO Posters Available from EEOC
Due to changes in the Americans with Disabilities Act (in the ADA Amendments Act) and the enactment of the Genetic Information Nondiscrimination Act (“GINA”), the EEOC has issued two new posters that employers with 15 or more employees are required to post in their workplaces. One poster is titled “’EEO is the Law Poster Supplement” and contains only the changes from the previous all-in-one poster. The second poster is the “all-in-one” poster, titled “Equal Employment Opportunity is the Law.” Both posters can be found at www.eeoc.gov.
- ADAAA Regulations a Priority for the EEOC
The EEOC has indicated that a revision of its existing ADA regulations to conform to the ADA Amendments Act (“ADAAA”) is a regulatory priority for 2010. It has received over 600 comments on the proposed regulations it issued in September 2009, and is aiming to finalize these regulations by July 2010. The ADAAA, which became effective January 1, 2009, broadened the definition of persons with disabilities who are protected by the ADA.
- Hearings Held on Bill Seeking to Bar Employers from Requiring Binding Arbitration of Discrimination Claims
Under current law, employers can compel compliance with arbitration agreements that require employees to present their employment discrimination and other claims to arbitration rather than filing an action in court. The Arbitration Fairness Act (S. 931, H.R. 1020) would bar the mandatory arbitration of employment-related claims, except where it is required by a collective bargaining agreement. The bill has 9 sponsors in the Senate and 92 in the House.
- Elliott-Larsen Pregnancy Discrimination Clause Made Consistent with Title VII
On December 21, 2009, Governor Granholm signed into law an amendment to the Elliott-Larsen Civil Rights Act that, using language largely drawn from Title VII, prohibits employers from treating “an individual affected by pregnancy, childbirth, or a related medical condition differently, for any employment related purposes, from another individual not so affected but similar in ability or inability to work, without regard to the source of any condition affecting the ability or inability to work.” Because this is similar to Title VII’s language, this is not a significant development for employers with 15 or more employees; however, for smaller employees, which are not covered by Title VII, this is a new requirement.
- Michigan Enacts Workplace Smoking Ban
Effective May 1, 2010, virtually all Michigan indoor workplaces will become no-smoking areas. All employers, both public and private, will be covered by the law, which bars smoking in an enclosed area. Detroit casinos, cigar bars, home offices and tobacco retail stores are exempted from this law. To comply with this law, employers must post no smoking signs at building entrances and throughout covered buildings; remove all ash trays and other smoking paraphernalia; and inform individuals smoking in violation of the law that they are in violation of it and subject to penalties, and ask them to stop smoking. The legislature eliminated a requirement from the original version of the Act that would have required employers to implement a written no smoking policy.
- Bill to Ban Texting While Driving Passes Michigan House
The Michigan House of Representatives has passed legislation that would ban texting while driving, and the Senate Transportation Committee has approved a similar bill. Some version of this bill is likely to be enacted in 2010, resulting in Michigan joining 28 other states with similar bans.
- State Constitutional Amendment as to Public Employee Pay and Benefits Proposed
Michigan Senate Republicans have proposed a constitutional amendment that would impose a 5% pay cut on all state and local government employees in Michigan for one year and require them to pay at least 20% of their health benefit costs. The hope of the amendment’s sponsor is to gather enough support in the House and Senate to have the measure placed on the August ballot. They estimate a nearly $2 billion annual cost saving from these measures.
HB 5325 was introduced in September 2009. It would amend Act 312 by allowing either party to require the arbitrator to decide the economic issues as a package instead of individually. It would also require arbitrators to give more weight to the financial condition of the governmental employer. A more drastic bill, HB 5665 was introduced in December 2009. It would repeal Act 312 in its entirety.
Recent Cases of Interest
Repeated comments of a sexual nature, references to women in obscene terms, the open viewing of pornography on work computers, sexual jokes and descriptions of sexual experiences were common and “indiscriminate in the workplace.” The district court held that this did not constitute unlawful sexual harassment because none of these comments or statements were aimed at the plaintiff, and men and women were exposed equally to this conduct. In Gallagher v C.H. Robinson Worldwide, Inc., 567 F3d 263 (6th Cir 2009), the Sixth Circuit reversed the district court decision. It ruled that such conduct “obviously evinces anti-female animus” and that the district court had “focused too narrowly on the motivation of the harassers’ offensive conduct rather than on the effects of the conduct on the victim-recipient.” It concluded, “a harasser whose offensive conduct afflicts both men and women is not an ‘equal opportunity harasser’ if the conduct is more offensive to women than men.”
- CBA Language Regarding Retiree Benefits Continues to Be Critical
Contrary to retirees’ claims that they were entitled to unreduced, lifetime health benefits, a unionized manufacturer was justified in reducing these benefits where the relevant collective bargaining agreement clearly and unambiguously disclaimed the company’s obligation to provide retirees with lifetime retirement benefits. This is not new ground, but is a reminder of the significance of this type of contract language. Harps v TRW Automotive U.S., LLC (6th Cir. 11/3/09).
- Employment Decisions Not Based on Temporary Employee’s National Origin
A temporary worker of Arabic descent celebrated the attack on the World Trade Center on September 11, 2001 by exchanging laughter and high fives with an Arabic co-worker. After that, he was denied regular work and temporary work assignments, due either directly or indirectly to this incident. He claimed these denials occurred because of his national origin.
There was no evidence of any national origin bias by the decision makers. The court concluded by stating, “plaintiff has failed to establish that [the employer’s] conduct following the Sept. 11 incident was based on anything other than plaintiff’s admitted behavior, rather than plaintiff’s national origin.” Shariff v Ford Motor Co. (Mich Ct of Appeals, unpublished)
- Evidence of Discriminatory Acts Outside of the Limitations Period May Be Used to Establish a Pattern of Discrimination
The Michigan Court of Appeals, in Campbell v Department of Human Services, has held that even though a claim for alleged discriminatory acts occurring outside of the applicable limitations period may be barred by that limitations period, evidence of such discriminatory acts may be introduced at trial to prove the existence of a pattern of discrimination by the employer.
For additional
information on these developments, please contact Kevin McCarthy
at mccarthy@mccarthysmithlaw.com
or by phone at (269) 488-6330. |
