Lawyer - News

...at the Federal level at least.  We already have one of these here in New York.  Bus for the rest of you, this is big news.  The Genetic Information Nondiscrimination Act of 2008 (H.R. 493) or "GINA"   prohibits employers from discriminating against applicants and employees based on genetic tests or genetic information.  It was just signed by President Bush and goes into effect 18 months after enactment.  The EEOC will now also have a year to draft regulations under the new law.

The new law also has some amendments to the the child labor provisions of the the Fair Labor Standards Act - imposing some hefty fines for violations - and these go into effect immediately.

For the complete text for this link to:  Genetic Information Nondiscrimination Act of 2008

With the concern about the economy of late, it's good to find a refresher on the Worker Adjustment Retraining and Notification Act (WARN).  The New York Employment Law Letter has a nice overview of WARN which is must reading for those considering a staff reduction. 

In addition, my own article, in the sidebar at the left , Beyond the WARN Notice: Getting to the Tipping Point and Beyond, provides an overview of many of the things one needs to address after the notice is given.

According to fellow Lexblogger, Vicky Johnson, individual plan particpants now have the opportunity to recover damages against plan fiduciaries who breach their responsibilities.  The United State Supreme Court recently held in LaRue v. DeWolff, Boberg & Associates., Inc. that an individual that sustained a financial loss in plan assets could sue under ERISA to recover damages cause as a result of plan fiduciaries.  In this instance it is generally understood now that individuals can recover under 409(A) of ERISA with respect to damages like this in a defined contribution (in this case a 401(k)) plan.

For the full text opinion, follow this link: LaRue v. DeWolff, Boberg & Assocs., Inc.

We've heard a great deal lately about the gas prices, the economy, sub-prime mortgages and the like - all bad.  I suspect we've also seen the level of stress at work increase as employees carry over the stress from their personal lives into the workplace.  As gas nears $4.00/gallon here in New York, everyone is beginning to tabulate the cost of going everywhere - $10.00 round trip to work, $5.00 to the mall, etc.  Doesn't appear to be much relief in sight in the near future. So, hold onto your hats as things unravel a bit at work!

Worker's Bring Economic Stress into the Office

Yes, just when you think you've seen it all.....  The Word On Employment Law Blog points to an article reporting that as part of  motivational training session, a company engaged in waterboarding of a participant in order "to demonstrate to the employees that they should work as hard as the employee being waterboarded was working to breathe." 

For new on this story - see this Washington Post article on the progress of the legal case so far.

And, what were they thinking???

The EEOC recently issued proposed regulations addressing disparate impact claims under the ADEA.  The proposed rule addresses the Supreme Court ruling in Smith v. City of Jackson 544 U.S. 228 which held that recovery is available under the ADEA not only for disparate treatment or intentional discrimination but also unintentional claims or disparate treatment.

The announcement of the rule is available here in the Federal Register.  Comments must be made on or before May 30, 2008.

The Department of Labor has available a poster reflecting the recent changes to the law affecting military personnel.  It's meant to be temporary and a supplement to the existing poster.  It's available on the DOL website:

National Defense Authorization Act / FMLA Poster

This press release notes that charges filed with the EEOC are up over 9% from 2006 to 2007 - this single largest annual increase since 1993.  Yikes!

The Supreme Court recently ruled that when a complainant completes and intake questionnaire with the EEOC and the EEOC does nothing with it, it does not preclude the complainant from then bringing a claim of discrimination in Federal District Court.  In Federal Express v. Holowecki, the claimant went to the EEOC and completed the EEOC's intake questionnaire.  The EEOC did not issue a charge of discrimination and provide it to the employer.  Thus, the employer was unaware of the claim.  Next thing.... the employer was being sued in Federal Court as the claimant was able to successfully circumvent the EEOC's internal process.

Here's a good point raised by John Hyman of the Ohio Employer's Law Blog:

"My problem with this ruling is that Fed Ex never had any meaningful way to respond to the Intake Questionnaire. That form was never sent to it, and it had no notice that a proceeding had even been initiated until after the actual charge was filed 6 months hence. Thus, an employee can proceed to federal court on an age discrimination class action lawsuit, without the employer, who had no notice that a charge had even been filed with the EEOC, having the benefit of trying to settle the claim pre-lawsuit."

The Second Circuit Court of Appeals ruled recently that an employee who works overtime must be paid for those hours even though he/she may have been prohibited from working overtime.  There are many who already operate consistent with this ruling, so this may not be something new for all of you.  In the case of Chao v. Gotham Registery, an employment agency refused to pay for overtime for temporary nurses unless the overtime was approved in advance by the agency.  Thus, when the employees actually worked overtime without approval, they were not paid for those hours.  The Court held that the company's overtime practices violated the Fair Labor Standards Act.

Moral of the story - if your employees work overtime without permission, pay them and then address the matter as a discipline issue.

Thanks to the Connecticut Employment Law Blog for a comprehensive summary of the case.