2009 EMPLOYMENT LAW IN REVIEW: DID WE ACCOMPLISH ANYTHING THIS YEAR?
December 24, 2009 | Posted by firstname.lastname@example.org | Topic(s): Disability
, DFEH Practice
, FEHA and Other State Laws
, Federal Laws
Part 4: The Legislative And Executive Bodies
As we continue our journey through some of the more noteworthy employment developments in 2009, we note that Congress and the California legislature each had its hands in the works, as did the Executive branch who, judging by the 750 pages of regulations it propounded in interpreting the FMLA, clearly needs more to do. While there were scores of new laws and regulations touching upon the minutiae of our daily worklife existence, a few stand out.
The Perfect Photo Op: What better way to start out an historic presidency than by making the equal pay promise a little closer to reality.
On January 29, 2009, in one of his first Presidential acts, President Obama signed the Lilly Ledbetter Fair Pay Act into law, thereby extending the time within which employees can bring claims for pay discrimination. Previously, such claims had to be filed within 180 days of the making or adoption of the discriminatory decision (e.g., within six months of when the worker was first given the discriminatorily lower salary).
Now, a pay discrimination claim can be brought within 180 days of the receipt of any compensation affected by the decision. In other words, each paycheck begins a new statute of limitations period.
As another bonus, the time for employees to bring pay discrimination claims based on race, color, national origin, religion, disability and age have also been extended by the Act. (For more info, including a helpful list of tips for employers, click HERE for Martha Doty's fine summary of the Act.)
More Leave Rights: Also in January, 2009, new regulations under the Family and Medical Leave Act (FMLA) were issued by the United States Department of Labor (DOL), (which we would gladly include here if only our stingy editors would increase our word count to 375,000. Including the preamble, the new regulations are 750 pages!) (Wait a minute, I am the editor.)
Perhaps the most important change for employers is the new requirement mandating three separate notices at specific times informing employees of their FMLA rights. The regulations also establish the rules applicable to the two kinds of military family leaves that Congress added to the FMLA in 2008. In the 2010 military budgeting process, Congress expanded the coverage of both military family leaves. (We can’t wait for the DOL to issue 750 new pages of revised regulations to address these changes next year.)
Two Many A’s: On January 1, 2009, the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) went into effect, greatly expanding the definition of “disability” in the Americans with Disabilities Act (ADA) and overriding the holdings in several U.S. Supreme Court decisions and some EEOC regulations.
In September, 2009, the EEOC published its long-awaited Notice of Proposed Rulemaking (NPR) seeking to implement the ADAAA. Without going into the gory details, the proposed new rules would expand the definition of “disability,” among other things, making it much closer to the broad California version. (Click HERE for Rory Diamond's nice summary of these new regs, replete with hyperlinks.)
Alternative Work Weeks: In February, 2009, California’s governor signed AB 5 into law amending Section 511 of the California Labor Code pertaining to alternative workweek schedules. The new law aims to (thankfully) make it easier for employees and employers to enter into alternative workweek schedules (i.e., four 10-hour days instead of five 8-hour days without having to pay overtime for the 10-hour days). While the details are, well, detailed, the new law does allow (under certain circumstances) for non-exempt workers to work more than 8 hours a day without triggering the overtime pay requirements.
Laws That Should Be Unnecessary: Tops on our list of “Do We Really Need A Law For This?” is California’s new “no texting while driving” law (SB 28) which was technically signed into law in late 2008, but made its way to the books and our consciousness in 2009.
This led employers who require their employees to carry and regularly check their Blackberries, iPhones, or equivalents, to add to their list of “Do We Really Need An Employment Policy For This?” a new policy (right after “don’t sexually harass your co-workers”) stating “do not read or write emails or texts while operating your motor vehicle.”
Stay tuned for the final installment, coming soon: "The California Courts In Action."