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Legally Speaking


Issue: June, 2009
Author: Brad Cave

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Employment Law: From Bush to Obama

The last six months have seen substantial shifts in the landscape of federal employment law. In the waning days of his administration, President Bush signed a broad expansion of the Americans With Disabilities Act and new limits on the use of genetic information, and adopted new regulations under the Family and Medical Leave Act. Now, President Barak Obama appears intent on delivering on his campaign promises of “hope and change” in many areas of employment law. Virtually all of the changes promoted by President Obama, from the Ledbetter Fair Pay Act to the Employee Free Choice Act, will expand the rights of employees while increasing the obligations and duties of employers.

ADA Amendments Act (ADAAA)
The ADAAA became effective January 1, 2009. Congress passed the Act for the express purpose of overturning two Supreme Court opinions which interpreted the definition of disability in ways that substantially limited the scope of protection under the ADA. The definition states that a physical or mental impairment must “substantially limit” a major life activity before the impairment meets the definition of disability. The Court had ruled that “substantially limits” meant that the impairment must prevent or severely restrict the employee’s ability to perform the major life activity, as compared to the ability of a person in the general population, and the determination must consider how the impairment affects the person taking into account mitigating measures such as medications, learned compensatory behaviors, or other types of assistive devices.

Congress adopted new rules of construction for the definition, directing that the definition of disability is to be construed in favor of broad coverage. For example, mitigating measures are not to be considered; the impairment must be assessed as it would affect the individual without any mitigating measure, even if the employee uses those measures. Also, the limitations of impairments that are episodic or in remission must be considered as if the impairments were fully active, even if the employee is not experiencing those impacts. The Act also expanded the list of major life activities to include all physiological functions, rather than just external human activities. Ultimately, Congress directed that employers should not be particularly concerned with whether an employee has a disability, but should instead focus on whether the employee’s impairment can be reasonably accommodated.

Family and Medical Leave Act Regulations
One of the final actions of the Bush Administration’s Department of Labor was the adoption of new regulations implementing the FMLA. The FMLA provides eligible employees of covered employers with up to 12 weeks of job-protected leave for various reasons, including serious health conditions of the employee or family members and the birth, adoption or foster placement of a child. The new regulations included two new categories of leave for employees who are relatives of service members, including leaves for “qualifying exigencies” related to active duty service and to care for injured service members. The new regulations also clarify the definition of serious health condition, require new elements of the notices employers must provide to employees, and adopted new forms.

Genetic Information Nondiscrimination Act
GINA becomes effective for employers on November 21, 2009. The Act generally prohibits employers and group health insurers from collecting genetic information about employees, and prohibits discrimination on the basis of genetic information. Genetic information includes genetic tests of the employee or family members designed to identify predisposition to various health conditions, as well as less technical information such as family medical histories. However, the Act does not apply to information informally or inadvertently acquired through workplace communications like “water cooler” conversations about family medical problems. The EEOC published proposed regulations under GINA on March 2, 2009.

Lilly Ledbetter Fair Pay Act
As one of his first official acts in office, President Obama signed the Ledbetter Fair Pay Act on January 29, 2009. The act amends the federal discrimination statutes to overturn the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Company. The Court had held that pay discrimination charges had to be filed with a federal or state agency within 180 or 300 days from the date of the first discriminatory paycheck. The Act states that an unlawful practice occurs not only when the discriminatory decision is made, but when a person becomes subject to the discriminatory compensation decision or practice or when a person is affected by the decision or practice, including each time wages are paid. Interestingly, the Act is to be applied “as if enacted on May 28, 2007” and apply to all claims of discrimination in compensation that are pending on or after that date. Some courts have already applied the Act’s provisions in cases involving employment decisions relating to tenure or promotion which indirectly impact compensation.

Obama Executive Orders
One of President Obama’s first pro-labor actions was to reverse three prior executive orders applicable to federal contractors. While President Bush’s Executive Order 13496 required federal contractors to post notices informing employees of their right not to unionize, President Obama’s Executive Order 13496 requires federal contractors to post notices telling employees they have the right to organize. President Obama also adopted EO 13494, prohibiting reimbursement under any federal contract for training that attempts to persuade employees not to join a union. President Obama also adopted EO 13495 which requires new federal service contractors to offer all non-supervisory employees of the prior federal service contractors the same job they held with their prior employer.

Immigration Documentation and Enforcement
The Bush Administration had published a revised I-9 form which was to take effect on February 2, 2009. The Obama DHS delayed the effective date to April 3, 2009, but the new form (revision date 2/2/09) is now required for use by all employers. The new I-9 regulation prohibits employers from using expired identification documents of any variety. Also, the lists of acceptable documents have been revised to exclude types of older employment authorization documents.

On April 30, 2009, DHS Secretary Janet Napolitano issued new guidance regarding workplace enforcement to the Immigration and Customs Enforcement Division signaling a new focus on the enforcement of immigration laws against employers who knowingly hire undocumented employees. Accompanying documentation issued by ICE suggests that the division may use “undercover agents, confidential informants, cooperating defendants and surveillance” to build cases against employers. Also in April, DHS officials testified before Congress about the status of E-Verify. E-Verify is the Internet-based system that allows employers to compare the information collected on I-9 forms with Social Security and DHS immigration databases. Employers are not currently required to use E-Verify, but federal contractors will be required to use the system beginning June 30, 2009.

Employee Free Choice Act (EFCA)
Although the EFCA has not been passed by Congress yet, it has received substantial media attention, and President Obama favors the legislation. As originally drafted, the Act would replace secret ballot union elections by permitting unions to be organized through obtaining employees’ signatures on cards. If a majority of employees sign a card, the employer is then required to negotiate a contract with the union. If the employer and the union cannot agree on a contract, a federal mediator is authorized to impose a two-year contract without employer or employee agreement. The EFCA’s elimination of secret ballots has generated significant debate in and outside of Congress, and the law is likely to be amended through some sort of compromise measure. It is highly likely, however, that the EFCA or its subsequent versions will make union organizing easier.

Other Pending Employment Law Changes
The 111th Congress is likely to consider a variety of other changes to federal employment law. Included in the list are amendments to provide discrimination protection for sexual orientation, to eliminate the damages caps for discrimination claims, to prohibit arbitration agreements covering discrimination claims, and to make it easier for employees to recover attorneys’ fees. Other possible measures include the Healthy Families Act, which would require employers to provide paid sick leave, and expansion of the federal law that requires notices of layoffs and plant closings.

Brad Cave is a partner in the Cheyenne, Wyoming, office of Holland & Hart LLP, and he currently serves as the Administrative Partner of that office. Brad’s practice focuses on employment law and litigation. He represents employers in matters involving discrimination, harassment, wage and hour disputes, defamation, wrongful discharge, breach of contract and employment-related torts. He also advises employers on issues related to employee handbooks and personnel policies, compliance with federal and state statutes and regulations and employee investigations, discipline and termination. He conducts training sessions for employers, managers and supervisors in areas such as investigations, discipline and termination, harassment, discrimination, disability accommodation and supervisory responsibilities. He is a 1988 graduate of the George Washington University Law School, and a 1985 graduate of the University of Wyoming.

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