Mike Moberly and John Fry, Shareholders in the firm's Labor and Employment group, were published  this month in the Suffolk Journal of Trial & Appellate Advocacy. Click the citation to read the article.

Michael D. Moberly & John M. Fry, Squandering the Last Word: The Misuse of Reply Affidavits in Summary Judgment Proceedings, 15 Suffolk J. Trial & App. Advoc. 43 (2010). 

As social networking sites like Facebook.com and MySpace.com continue to grow in popularity, employers are catching on and reviewing the profiles of applicants and employees. Although social media may appear to be a cheap and convenient way to obtain an increasing amount of information regarding these individuals, employers must be aware of the host of potential legal pitfalls that await those that choose to use social media, three of which are discussed below.

Authenticity

From the outset, employers that choose to investigate applicants and employees using social media should not overlook the fact that the profiles they find are not always authentic and trustworthy. While this may seem obvious, employers should ensure that the information they find when reviewing a candidate's profile is actually about the applicant they are considering, and not someone with the same name. More troubling than mistaken identity, however, is a disturbing new trend among college students: creating fake explicit or unflattering profiles of other students they view as competition for jobs with the intent of tarnishing their reputation in the eyes of a prospective employer. Accordingly, employers should remember not to believe everything they see.

Background Checks

In using social medial to investigate potential employees, employers gain access into part of applicants' personal lives that has been traditionally unavailable or off-limits during the hiring process. This knowledge can set an employer up for claims of employment discrimination. An individual's online profile may reveal information regarding sexual orientation, parental status, disability status, age-related information, and/or nationality. The problem for an employer is that once this information is known, it will be hard to prove that a hiring decision was not based on a person's protected status in a subsequent lawsuit alleging discrimination in the hiring process. In this way, many of the measures taken by employers to ensure a non-discriminatory hiring process can be undermined by the use of social networking sites. Accordingly, employers who choose to examine these sites should proceed with caution and consider taking steps to protect themselves, such as: (1) waiting to review online information until after a conditional job offer is given to an applicant; (2) documenting the use of a social networking website along with the legitimate business reason for a decision not to hire; and (3) training and refreshing all individuals involved in making hiring decisions on state and federal antidiscrimination laws.

Conditions of Employment

Another potential danger arises when an employee uses social media to discuss terms and conditions of employment. "Terms and conditions of employment" has been construed quite broadly, and includes virtually all aspects of the work environment from wages and benefits, to a supervisor's competence. While an employer may prefer to keep such information confidential, or may be offended by an employee who says something negative about work in the social networking world, federal labor law allows employees - even those who are not unionized - to engage in protected concerted activity for their own benefit. This could arguably include a situation where several of your employees communicate with each other online. Accordingly, before issuing any discipline to an employee in response to an online post, an employer should consider whether the post is protected by federal labor law.

If you have any questions about the legal impact of social media on your business, please contact Carolann Cervetti Bullock at 602.440.4828, Ellen Glass at 602.440.4887, or any member of Ryley Carlock & Applewhite's Labor and Employment Department. PDF Version.

Contact: Carolann Cervetti Bullock

Both the World Health Organization and the Center for Disease Control and Prevention have indicated that the H1N1 virus may severely impact the workplace this fall and winter. As a result, employers must be aware of the various laws that govern the workplace when responding to a pandemic flu. For example, the Occupational Safety and Health Act ("OSHA") requires employers to provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm." Furthermore, employers must consider various discrimination and leave laws when implementing a pandemic flu response plan.

In order to provide a safe and healthy working environment to all employees and protect employees from work-related exposure to the H1N1 flu virus, an employer may lawfully (1) require its employees to adopt infection control practices such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal; (2) require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of a pandemic virus; and/or (3) encourage or require employees to telecommute as an infection-control strategy. An employer can require an employee to stay home if there is accurate and reliable medical information indicating that the employee may pose a "direct threat" to the health and safety of other employees.

Under the Family and Medical Leave Act, an eligible employee who has a serious health condition or is required to provide care to a qualified family member with a serious health condition may be entitled to up to twelve (12) weeks of continuous or intermittent leave. Whether H1N1 is a serious medical condition will necessarily depend on the facts of each individual case. However, due to concerns of a nationwide flu pandemic, it likely may be
considered a serious medical condition.

Finally, although H1N1 appears to have originated in Mexico, employers must not use this information to discriminate against workers of Mexican nationality. Discrimination based on nationality, even if it is based on an honest fear of the H1N1 flu virus, would violate federal and state discrimination laws.

Employers who are considering plans to deal with potentially high levels of absenteeism as a result of an H1N1 outbreak may survey their workforce to gather personal information needed for pandemic preparation, but may only ask "broad questions that are not limited to disability-related inquiries." Therefore, an employer should ask questions that place non-medical reasons for an absence during a pandemic on equal footing with medical reasons. For example, an employer is permitted to ask its workforce whether certain conditions (e.g., mandatory school closures, curtained public transportation, or chronic illnesses that weaken immunity) will affect an employee's ability to come to work. However, an employer that chooses to do so should ask employees to simply answer "yes" or "no" as to whether any of the reasons might apply to them without identifying the specific condition applicable to the employee. For an example of an ADA-Compliant Pre-Pandemic Employee Survey,
visit http://www.eeoc.gov/facts/h1n1.html.

The recent H1N1 flu outbreak should serve as a reminder to employers of the importance of knowing how to appropriately respond to a serious epidemic. Employers need to react (without overacting) to employees who contract contagious diseases like H1N1. Please contact any member of our labor and employment department if you would like assistance in preparing for or responding to a serious influenza epidemic.

President Obama has followed through with his campaign pledge to nullify Ledbetter v. Goodyear by signing the Lilly Ledbetter Fair Pay Act of 2009 (the "Ledbetter Act") into law. The Ledbetter Act amends the Civil Rights Act of 1964 by stating that the 180-day statute of limitations for filing an equal-pay lawsuit over pay discrimination resets with each new discriminatory paycheck.

The legislation is named for an Alabama woman who, at the end of her 19-year career as a supervisor at a tire factory, learned that her male colleagues earned much more than her. This discovery prompted her to file a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination. When her case eventually went to trial, a jury concluded she had indeed suffered illegal pay discrimination on the basis of sex and awarded her $3 million (which was later reduced to $300,000 in accordance with Title VII's damages cap).

However, on appeal, the Supreme Court threw out Ms. Ledbetter's case after Goodyear successfully argued that her claims were time-barred because she failed to file her suit within 180 days (the limitations period under Title VII) of the date that her employer first paid her less than her peers.

The Ledbetter Act is a direct response to the Supreme Court's decision holding that the statute of limitations for presenting an equal-pay based lawsuit runs from the date of a pay decision setting a discriminatory wage. The Ledbetter Act attempts to "fix" this controversial holding by specifying that the 180-day limitations period runs from the date of any paycheck that contains an amount affected by a prior discriminatory pay decision.

Because the Ledbetter Act amends Title VII, it also extends the time period during which employees can pursue disparate pay claims under other anti-discrimination statutes that borrow Title VII's limitations period, including the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act. The Ledbetter Act is made retroactive to May 28, 2007, one day before the Supreme Court issued its ruling in Ledbetter.

Following its enactment, the EEOC announced that it intends to enhance enforcement in the area of pay discrimination. Accordingly, it is recommended that employers analyze their compensation practices to minimize their increased potential liability under the Ledbetter Act. Specifically, employers should:

• Evaluate all policies or practices that impact pay directly or indirectly (hiring, promotions, bonus payouts, merit-based salary adjustments, etc.);
• Conduct a statistical analysis of past and current employee compensation rates to identify disparities by protected categories;
• Consider the amount of discretion supervisors have to make compensation decisions, and re-educate those making pay decisions;
• Review compensation record retention policies to ensure that documentation reflecting when and why compensation decisions are made are retained in order to defend discrimination claims.

Feds Delay E-Verify Rule Once Again

The effective date of the Federal Contractor E-Verify Rule, a rule requiring federal contractors to certify workers' immigration status through E-Verify, has been postponed once again. The new implementation date is now scheduled for September 8, 2009 (extended from June 30, 2009). The rule was originally due to take effect on January 15, 2009, but has since been postponed several times.

For questions or assistance with these or other labor and employment matters, please contact Carolann Cervetti Bullock, the Chair of Ryley Carlock & Applewhite's Labor & Employment Practice Group.

The Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") provides certain "covered employees" who experience a "qualifying event" with continuation health plan coverage rights. Generally, an Employer with a health plan, including dental plans, vision benefit plans, and health FSAs, that was subject to COBRA, must permit each "qualifying beneficiary" to elect and receive continuation rights for between 18 and 36 months, in exchange for the qualified beneficiary paying up to 102% of the total cost of that coverage.

The president signed the American Recovery and Reinvestment Act (the "Act") on February 17, 2009, and in so doing subjected Employers to an additional cost of providing required COBRA continuation coverage during this current recession.

Under the Act, the Employer must notify every former employee that had been "involuntarily terminated" from the company at any time between September 1, 2008 until December 31, 2009 of their new rights, and the Employer's new responsibilities. The notice must explain that the Employer will pay sixty-five percent (65%) of the former employee's COBRA premium for up to 9 months of COBRA continuation coverage under certain plans, whether or not the former employee had elected COBRA when he/she was first offered continuation coverage at the time of the involuntary termination. The notice must be provided by April 18, 2009, and must provide the former employee with an election, even if it gives him/her a second chance to elect the COBRA continuation coverage, with a retroactive effective date for the premium subsidy back to February 17, 2009. The election period for this second chance again gives each former employee 60 days to decide whether to accept this benefit from the Employer.

This new law will cost the Employers. First, the Employer has to pay the initial 65% subsidy for participants who elect COBRA continuation coverage. The Employer will be reimbursed through a credit against payroll taxes paid. The required subsidy payments are phased out for certain higher paid former employees.

Second, the Employer has to offer a second COBRA notice. That means that the Employer will have to now validate mailing lists to ensure the notice is sent to former employees and their dependents whom the Employer may not have been in contact since September, 2008.

This law will be troublesome for some Employers. The U.S. Department of Labor is committed to issue a model notice that will help to explain the requirements and the rights that the covered former employees and their dependants now enjoy.

Please contact us to learn more about the solutions available under this new Act and assistance with former employee communications required now. 

The election of Barack Obama as President of the United States on the platform of change will undoubtedly have implications for employers. Just how widespread the promised change will be remains to be seen. What can be stated with certainty is that in the context of labor and employment law, the promised change may take many forms, including legislation, regulation, and revised judicial and administrative interpretations of current labor and employment laws.

PROPOSED LEGISLATION

The following is an overview of proposals President-elect Obama has supported, either as a Senator or during his Presidential campaign.

AMENDMENT OF CURRENT FEDERAL DISCRIMINATION LAWS

House Democrats have marked the first week of the new Congress by approving two pay discrimination bills -- the Lilly Ledbetter Fair Pay Act (H.R. 11) and the Paycheck Fairness Act (H.R. 12). The Lilly Ledbetter Fair Pay Act reverses a Supreme Court decision and amends Title VII, the ADA, the ADEA, and the Rehabilitation Act of 1973 to allow claims brought within 180 days of receiving any paycheck affected by a discriminatory pay decision, no matter how far in the past an act of discrimination allegedly occurred. The Paycheck Fairness Act clarifies that victims of gender-based discrimination can sue for compensatory and punitive damages, provides protection to employees who share salary information with their colleagues, and puts the burden on employers to prove that any wage disparities are job-related and not gender-based. Both bills are expected to reach the Senate floor later this month. Additionally, during his campaign, Obama pledged his support for the Employment Non-Discrimination Act ("ENDA"), an Act that would amend federal employment statutes to include sexual orientation as a protected class.

EMPLOYEE FREE CHOICE ACT (EFCA)

As noted in our previous alert, the EFCA would: (1) establish a card check procedure, under which a union could be certified if a majority of employees within an appropriate bargaining unit signed union authorization cards; (2) impose contracts on employers and unions that do not reach agreement on initial contracts within as little as 120 days; and (3) stiffen penalties for unfair labor practices committed by employers during an organizing campaign or during bargaining over an initial contract.

RE-EMPOWERMENT OF SKILLED AND PROFESSIONAL EMPLOYEES AND CONSTRUCTION TRADESWORKERS ("RESPECT" ACT)

The RESPECT Act would effectively limit which workers the National Labor Relations Act ("NLRA") classifies as supervisors and increase the number of employees eligible for unionization by: (1) removing from the NLRA definition of "supervisor" the duties of assigning and responsibly directing other employees, and (2) requiring that employees spend a majority of their time performing supervisory duties in order to qualify as "supervisors" under the Act.

EQUAL REMEDIES ACT AND CIVIL RIGHTS ACT OF 2008

This legislation would increase employer liability and damages by removing the current $300K cap on compensatory and punitive damages for violations of Title VII and the ADA.

FAMILY AND MEDICAL LEAVE ACT ("FMLA") AMENDMENTS

The proposal would expand FMLA coverage to include businesses employing 25 to 49 people (as opposed to the current minimum of 50 employees), and provide new leave entitlements including leave for elder care and instances of domestic violence, and up to 24 hours of leave each year for parents to attend school functions for their children.

PUBLIC SAFETY EMPLOYER-EMPLOYEE COOPERATION ACT

This Act would provide collective bargaining rights for public safety officers, such as firefighters, emergency medical services personnel, and public safety officers, employed by states or their political subdivisions

FOREWARN ACT OF 2007

The Forewarn Act would expand the WARN Act's scope by requiring employers with 50 or more employees (instead of the current 100 or more employees) to provide 90-day written notice of plant closures or mass layoffs (instead of the current 60-day notice), and would double the amount of backpay an employer would owe employees if the notice requirement is not met.

NLRB DECISIONS

The first change we can expect to see in the short-term is a full complement of five members for the National Labor Relations Board (the "Board"). The statutory scheme provides for a presidentially appointed five-member Board, with members serving staggered five-year terms. As a result of this process, Board decisions tend to fluctuate over time, reflecting the ever-shifting composition of the Board.

Despite the statutory scheme calling for a five-member Board, the Board has been operating for some time with only two of its five seats filled. Therefore, President-elect Obama has the unique opportunity to appoint three members to a Board currently composed of one Republican and one Democrat, placing the viability of several decisions in the hands of a new Board and a new General Counsel. Current at-risk decisions include:

WEINGARTEN

History has shown that whether or not Weingarten rights apply to non-union employees depends upon the makeup of the Board. Since 2004, a time when the Board included three Republican members, only union represented employees have the right to have a representative present during an investigatory interview that might reasonably lead to disciplinary action. Only four years earlier, the Clinton-appointed Board held that Weingarten rights were also applicable to nonunion employees. Accordingly, another case presented to a Board comprised of different members will likely result in the Board again revising its view of Weingarten rights.

REGISTER-GUARD

In 2007, the Board held in Register-Guard that employers could legally prohibit employees from using their employer's e-mail systems for Section 7 purposes, including union organizing or engaging in other protected concerted activity, as long as the employer had a policy barring employees from sending e-mails for "non-job-related solicitations." In a biting dissent, the Democratic minority accused the majority of ignoring both precedent and the impact of technological change on workplace communications. Because the Board was closely divided on this issue (3-2) and the ruling was controversial, the rules could easily change in the future.

Due to the fact that labor law and politics are inexplicably intertwined, it is no surprise that the political pendulum swings back and forth on these issues. As Judge Edwards noted in Epilepsy Foundation v. NLRB, "[i]t is [simply] a fact of life in NLRB lore that certain substantive provisions of the NLRA invariably fluctuate with the changing compositions of the Board."

Employers that educate themselves and prepare for the changes will be better equipped to prosper in a shifting business environment where employees have enhanced rights. To that end, we will continue to keep you updated on the status of these and other important labor and employment proposals. If you would like further information regarding any of the above, or any other labor relations issues, please contact any member of Ryley Carlock & Applewhite's Labor and Employment Practice Group.

Employers Must Use Revised Form I-9 Beginning February 2, 2009

Download the PDF

On Monday, November 17, 2008, the United States Department of Labor ("DOL") published its final regulations promulgated under the Family and Medical Leave Act of 1993 ("FMLA") and the amendments to the FMLA under the National Defense Authorization Act ("NDAA"), bringing the two year public process to a close. The new regulations take effect on January 16, 2009.

The DOL made only modest changes to its original February 2008 proposals. While largely retaining the changes noted in our previous employer alert, including tightening the notice requirements, easing the medical certification process, and redefining "continuing treatment" for the purpose of establishing a serious health condition, the final regulations include noteworthy additions to the military leave entitlements and the process for "authentication" or "clarification" of a medical certification form.

Military Leave Entitlements

Perhaps most importantly, the revised regulations provide the missing definition for a "qualifying exigency" under the NDAA. "Qualifying exigency" is defined to allow eligible employees with immediate family members (spouses, children, or parents) on active duty or called to active duty to use up to 12 weeks of FMLA leave for: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities where the employer and employee agree to the leave. By its express terms, the qualifying exigency provision of the NDAA does not take effect until the Secretary of Labor defines the term. Accordingly, the regulations supplying the definition implement this new statutory military leave entitlement and covered employers will be required to offer military exigency leave when the regulations take effect beginning January 16, 2009.

In addition to providing guidance regarding the military-related leave entitlements, the DOL has issued new certification forms for both wounded servicemember leave and military exigency leave.

Medical Certification Process

The revised regulations retain the proposal allowing an employer to contact an employee's health care provider directly to seek "clarification" or "authentication" of information on the form. However, unlike the proposed regulations, the revised regulations limit which individuals may contact the employee's health care provider by requiring that the contact be made by a health care provider, a human resource s professional, a leave administrator, or a management official, and explicitly ban an employer's direct supervisor from making the contact.

This Employer Alert summarizes only a few of the changes in the 200+ page Final Rule published in the Federal Register, which can be found by visiting http://www.dol.gov/esa/whd/fmla/finalrule.htm. Employers should use the relatively short period between now and January 16, 2009, to take the following actions to ensure compliance by the time the rules become effective: (1) become familiar with the requirements of the new regulations; (2) revise existing FMLA policies in order to ensure compliance with the changes to nonmilitary FMLA leave; (3) if it has not already been done, adopt a military leave policy or update any existing military leave policy to reflect the additions contained in the new regulations; (4) conduct training on the new rules; and (5) update FMLA administration forms.

The DOL hopes that the new regulations will help employers and their workers better understand their rights and responsibilities under the FMLA.

Please contact Carolann Cervetti Bullock at 602.440.4828, Ellen Glass at 602.440.4887, or any member of Ryley Carlock & Applewhite's Labor and Employment Department for more information, or to attend the breakfast seminar, email This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

With Barack Obama headed for the White House and Democrats in firm control of Congress, the battle between management and labor is heating up over the deceptively named Employee Free Choice Act (EFCA, H.R. 800). Unions spent hundreds of millions of dollars to help elect Democrats in the November 4 election and secure passage of legislation that would boost their declining membership, and now "expect quick political payback" said Tom Donohue, chief executive officer of the U.S. Chamber of Commerce.

The passage of this Act would cause the most sweeping changes in labor relations since the passage of the National Labor Relations Act (NLRA). The EFCA would (i) result in a union being certified as exclusive bargaining representative without a secret-ballot election if a majority of workers in an appropriate unit sign authorization cards; (ii) require mediation and binding arbitration if the parties cannot reach an agreement within potentially as little as 120 days; and (iii) dramatically increase penalties for employer, but not union, violations of the NLRA during union organization efforts or contract negotiations. Even George McGovern, an admittedly pro-labor Democrat, has criticized the EFCA as running counter to the ideals that lie at the core of the labor movement and urged his friends and his Party not to strip the American workers of their right to a secret ballot election.

Throughout his campaign, Obama promised a more union-friendly administration if elected, saying, "This election is our chance to finally have a president who doesn't choke saying the word 'union.' . . . It's not just that this administration hasn't been fighting for you - they've actually tried to stop you from fighting for yourselves. This is the most anti-labor administration in our memory. They don't believe in unions. They don't believe in organizing. They've packed the Labor Relations board with their corporate buddies. But we are here to say it's not the Department of Management, it's the Department of Labor, and we're here to take it back." In his 2006 political memoir, The Audacity of Hope, he further explained, "I owe those unions . . . When their leaders call, I do my best to call them back right away. I don't consider this corrupting in any way." It is fair to predict that Obama will nominate pro-labor individuals to fill the three currently open seats on the National Labor Relations Board.

Obama is not only a supporter of the EFCA, but was an original co-sponsor of the card-check bill. Although the bill was introduced in both the 108th and 109th Congress, the first floor vote it received was after its most recent introduction in the 110th Congress in early February 2007. On March 1, 2007, the House passed the bill by a vote of 241-185, in largely party-line votes with Democrats in favor and Republicans opposed. However, the bill failed in the Senate due to a Republican filibuster. At that time, Democrats had only 51 votes in favor of card check. Senator Arlen Specter of Pennsylvania was the sole Republican defector.

Because composition of the Senate is crucial to the fate of the EFCA, businesses can take comfort in one key development: Democrats have failed to win enough Senate seats to reach the 60-vote margin needed to cut off debate and force votes on controversial legislation. 57 seats now appear to be in Democratic hands. Since the Democrats did not achieve a filibuster-proof Senate majority, the bill may not move unless a unified majority can again get Specter and two more Republicans to support the legislation.

Although a push for passage of the EFCA in early 2009 has been predicted, business groups are hoping that the economic downturn might delay consideration of the bill. John Engler, President of the National Association of Manufacturers, has expressed his hopes that Obama and Congress will refrain from pushing the legislation until the economy recovers, noting that polls suggest that most Americans oppose the legislation because it would end a worker's right to a secret-ballot election on union representation. If Obama chooses not to wait before pushing the Democratic agenda, the Chamber and other business groups have vowed to fight the legislation vigorously.

About the only point labor and management do agree on is that the passage of the bill could trigger the largest unionization drive since the NLRA. To illustrate, experts point out that when the state of Illinois passed a mandatory card check law in 2003, it witnessed a dramatic increase in union density. Similarly, in Canadian provinces with mandatory card check laws, approximately 32% of workers belong to a union, whereas only about 7% of American private sector workers today belong to a union.

If you have questions regarding the EFCA and how your business may be impacted, or any other aspect of labor relations, please contact our labor and employment practice group. If you would like to receive this by email, please contact Paul Ward at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

In summary, key proposals include:

Tightening of Notice Requirements

• Employee must notify employer "as soon as practicable" when leave is unforeseeable. The DOL expects that an employee can practicably notify his/her employer either the same day or the next business day.
• Employee must give "sufficient information" to put employer on notice that leave may be FMLA-qualifying, including an inability to perform the job, the anticipated duration of leave, and whether they intent to visit a health care provider.
• Additional administrative burdens imposed on employers to communicate more detailed information to employees regarding eligibility; however, the amount of time to provide such information is extended from two to five days.
• Requires employer to both post and distribute FMLA information.

Medical Certification Process

• In certain cases, allow an employer to contact an employee's health care provider directly for clarification or authentication of documents.
• Employer must give employee notice of an incomplete or insufficient certification in writing, and seven calendar days to cure deficiencies.
• Propose several revisions to the medical certification form itself to make it easier to understand and complete, and allow health care providers to disclose diagnosis information.
• Seeks to strengthen the recertification process and make fitness-for-duty certification more rigorous.

Serious Health Condition

• Proposal redefines "continuing treatment" for a serious health condition. The new definition is more restrictive and requires that, where continuing treatment is defined by two visits to a health care provider, the two visits occur within 30 days of the beginning of the period of incapacity. Currently, the time period is undefined.

Military Leave Entitlements

• The DOL also requested comment on a wide variety of issues related to the new military family leave entitlements that were contained in the National Defense Authorization Act.
• New leave entitlements include 26 workweeks to care for an injured or ill servicemember and 12 weeks due to a qualifying exigency arising out of the fact that a covered family member is, or has been, called to be on active duty.
• The DOL has issued a notice regarding Military and Family Leave which should be posted alongside an employer's current FMLA notice. A sample posting can be found at http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf.

Employers must ensure their FMLA policies reflect the new types of servicemember-related leave and should stay informed as to the status of the proposed regulations. Once the regulations are finalized, employers should further revise their FMLA policies, and ensure those responsible for compliance are trained on the new rules.

This topic will be addressed by the head of Ryley Carlock & Applewhite's Labor and Employment Department, Carolann Cervetti Bullock, at Sterling Education's Seventh Annual Employment Law Update in Arizona on November 13, 2008. For questions regarding any aspect of the FMLA, Carolann Cervetti Bullock at 602.440.4828; Ellen J. Glass at 602.440.4887; or any member of Ryley, Carlock & Applewhite's Labor and Employment Department

On September 17, 2008, the House passed the ADA Amendments Act of 2008, legislation that expands the definition of disability under the Americans with Disabilities Act ("ADA"). The ADA Amendments Act of 2008 was proposed in response to a series of Supreme Court decisions that have limited the definition of disability under the ADA. The Senate had already unanimously passed the same bill on September 11, 2008, and President Bush is expected to sign it into law in the coming weeks.

In a previous Alert in November 2008, we noted the significance of the Senate composition to the fate of the so-called Employee Free Choice Act ("EFCA" or the "bill"). Since that time there have been major developments, but the Senate continues to be the key to EFCA's future.

EFCA was introduced in the House of Representatives and the Senate on March 10, 2009, following the Senate Health, Education, Labor and Pensions Committee hearing that touted the "benefits" of unionization and featured several pro-EFCA witnesses. In its current form, EFCA would (1) establish a card check procedure that would effectively eliminate secret ballot elections; (2) have arbitrators impose contracts on employers and unions that do not reach agreement on initial contracts within as little as 120 days; and (3) impose fines and injunctions for unfair labor practices committed by employers. A recent Forbes article noted that "[i]f EFCA was enacted, a worker could find him or herself in a union he or she didn't get to vote on, abiding by a contract they didn't get to vote on, paying dues to a union they didn't agree to and whose political ideology they may not share."1 The potential effect of the proposed legislation is compounded by President Obama's nomination of two staunchly pro-labor union attorneys and one Republican to fill the three vacancies on the National Labor Relations Board. If these individuals are confirmed, the Board's composition will shift significantly in labor's direction.

EFCA appeared to have overwhelming Democratic support in the 110th Congress, and the number of Democrats in Congress has since grown. On June 30, 2009, the Minnesota Supreme Court unanimously declared Al Franken (D-MN) the winner in the disputed Minnesota Senate election. Franken's victory and subsequent announcement that he co-sponsored EFCA within hours of being sworn in theoretically gives Democrats the 60 votes needed to quash a filibuster and bring EFCA to the Senate floor for a vote (where only 50 votes are needed for passage as Vice President Biden would break a 50-50 tie).

However, two years ago it was clear that the bill would not pass the Senate and that President Bush would veto it even if it did pass. Now that Democrats have significantly increased their numbers in the Senate and President Obama has vowed to sign the bill if passed, business groups are more active in opposing the bill and support for the current version of EFCA has decreased in the 111th Congress. Because Democrats can no longer count on all 60 votes, the votes of a handful of moderate Democrats are critical to the fate of the bill in its current form or a possibly modified form.

A number of Democrats have expressed reservations about the bill. In April of this year, Arlen Specter (D-PA) changed his party affiliation to Democrat. Despite Senator Specter's change in party affiliation, he apparently remains opposed to the current version of EFCA, although he has some history of changing his position on this issue. Blanche Lincoln (D-AR), who was previously seen as a supporter, has been publicly critical of the bill, calling it "divisive" and saying that the Senate should focus on creating jobs and improving the economy instead. It is also unclear whether Dianne Feinstein (D-CA), who co-sponsored EFCA in 2007, will support it this time around. Other Seantors who have backed off their previous support of the bill include Mary Landrieu (D-LA) and Mark Pryor (D-AR). Questions also exist about where Senators Michael Bennet (D-CO), Jim Webb (D-VA), John Tester (D-MT), and Max Baucus (D-MT) stand with respect to EFCA.

There are a few Senators who are attempting to maneuver through this controversial issue by separating cloture and passage. Mark Udall (D-CO) and Mark Warner (D-VA) have indicated that they will vote in favor of cloture, but insist that they have not decided how they will vote on the bill itself. Conversely, Ben Nelson (D-NE) is opposed to the bill, but unsure on whether he will support cloture.

Because the Democrats do not yet have the 60 votes they need to break a filibuster, Tom Harkin (D-IA) is among those working to craft a compromise (sometimes referred to as "EFCA Lite") that would attract the support of the moderate Democrats who have expressed concerns about EFCA in its current form or have not publicly committed to supporting it. The possibilities being explored include (1) the use of expedited or "quickie" elections as an alternative to mandatory "card check" certification of a union; (2) granting labor unions "equal access" to an employer's workplace in order to campaign; and (3) extending the period of time before mandatory arbitration in first contract negotiations, but retaining the use of mandatory arbitration that would result in an arbitrator-imposed contract.

If you have questions regarding EFCA and how your business may be affected, or any other aspect of labor relations, please contact a member of our labor and employment practice group.

Nate R. Niemuth

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1 See Katie Packer, The Employee ‘Forced' Choice Act, (July 8, 2009), http://www.forbes.com/2009/07/08/employee-free-choice-act-opinions-contributors-unions.html (providing an overview of the financial impact of EFCA to unions, politicians, and the country).

The Arizona Fair and Legal Employment Act ("Act"), which is scheduled to take effect on January 1, 2008, requires Arizona employers to verify the legal immigration status of newly hired employees by using the federal government database known as E-Verify. A number of groups have challenged the Act in federal court but to date, these lawsuits have been unsuccessful.

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