Gina A. KuhlmanGina A. Kuhlman May 12, 2010May 12, 2010

Labor and Labor and Employment Law Employment Law

Update Update

AKRON SOCIETY FOR HUMAN RESOURCE MANAGEMENT

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Presented by:Gina A. Kuhlman

Partner

1375 E. Ninth Street 222 South Main StreetOne Cleveland Center Akron, OH 44308 Ninth Floor 330.849.6768Cleveland, OH 44114 330.376.4577 fax 216.820-4202 216.623.0134 fax

Email: gkuhlman@ralaw.comwww.ralaw.com

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AGENDAAGENDA

Hiring Incentives to Restore Employment Act Genetic Information Non-Discrimination Act EEOC Proposed Rules for the ADA Amendments

Act EEOC Proposed Rules Relating to the Age

Discrimination in Employment Act National Labor Relations Board Appointments and

Potential Impact on Existing Decisions Worker, Homeownership and Business Assistance

Act of 2009 – Extension of Unemployment Benefits

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The HIRE ActThe HIRE Act

Overview– Signed into law by President Obama on March

18, 2010 (HR 2847)

– aimed at providing hiring incentives to restore some of the jobs lost in the latest economic recession

– Payroll tax relief and Business tax credit provisions

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The HIRE Act – Payroll Tax ExemptionThe HIRE Act – Payroll Tax Exemption

Payroll tax exemption of the employer’s share (6.2%) of the social security tax on wages paid to – Qualifying employees

– For employment and wages paid after March 18, 2010 and prior to January 1, 2011

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The HIRE Act – Payroll Tax ExemptionThe HIRE Act – Payroll Tax Exemption

Qualified Employers

– Any employer other than a federal or state governmental entity, and their political subdivisions and instrumentalities

– However, public post-secondary educational institutions may qualify

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The HIRE Act – Payroll Tax ExemptionThe HIRE Act – Payroll Tax Exemption

Qualified Employees

– Hired after February 3, 2010 and before January 1, 2011

– Employee Affidavit:• Employee certifies that he or she as not worked

40 hours during prior 60-day period (ending on date employment begins)

• Form W-11 Affidavit available from IRS as of April 7, 2010

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Qualified employees continued– Employee Affidavit

• Employers are required to maintain with payroll records

– Employee is not hired to replace another employee

• Unless the other employee separated voluntarily or for cause

The HIRE Act – Payroll Tax ExemptionThe HIRE Act – Payroll Tax Exemption

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The HIRE Act – Payroll Tax ExemptionThe HIRE Act – Payroll Tax Exemption

Qualified employees continued– Employee is not fired and then re-hired to

obtain benefit• IRS Guidance needed as to recalling employees

from bona-fide layoff

– Relatives are not eligible• i.e. close family relationship with the

employer or “related” majority owners of a corporate employer

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Employer tax credit of up to $1,000 per qualifying employee– Additional one-time credit – For qualifying employees employed a

minimum of 52 consecutive weeks– To be claimed on employer’s 2011 returns

Form 941, Employer’s Quarterly Federal Tax Return, to claim the payroll tax exemption is available in draft form

The HIRE Act – Tax CreditThe HIRE Act – Tax Credit

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Genetic Information Non-Discrimination ActGenetic Information Non-Discrimination Act

Applies to employers with 15 or more employees

Effective November 21, 2009, GINA prohibits– Discrimination against employees or applicants

based on genetic information• prohibits the use of genetic information in

making employment decisions

• restricts acquisition of genetic information by employers

• strictly limits the disclosure of genetic information.

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Genetic Information Non-Discrimination ActGenetic Information Non-Discrimination Act

Definition of Genetic Information– Includes

• Information about an individual’s genetic tests

• Information about genetic tests of an individual’s family member– i.e. family medical history– To prevent discrimination on the basis of

increased risk of getting a disease, disorder or condition

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Genetic Information Non-Discrimination ActGenetic Information Non-Discrimination Act

EEOC IMPLEMENTS– Final Regulations expected to be published in May 2010

PROPOSED RULES– Definition of Family Member

– include the individual's children, siblings, and – parents (first degree) and extend to great-great

grandparents (fourth degree relative) and first cousins once removed (the children of a first cousin)

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Genetic Information Non-Discrimination ActGenetic Information Non-Discrimination Act

Proposed Rules– Acquisition of genetic information

• To exclude inadvertent acquisition– family medical history where a manager or supervisor

overhears a conversation among co-workers that includes information about family medical history (e.g., a conversation in which one employee tells another that her father has Alzheimer's Disease), or

– receives an unsolicited e-mail message from a co-worker that includes genetic information.

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ADA AMENDMENTS ACTADA AMENDMENTS ACT

Overview– History

• ADAAA was Passed September 17, 2008

• Became effective January 1, 2009

• EEOC expects to finalize regulations by July 2010

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ADA AMENDMENTS ACTADA AMENDMENTS ACT

Defining Disability– The Act retains the ADA's basic definition

of "disability" as:• an impairment that substantially limits one or

more major life activities,

• a record of such an impairment,

• or being regarded as having such an impairment; however …

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ADA AMENDMENTS ACTADA AMENDMENTS ACT

The ADA Amendments Act changes the way these terms are to be interpreted– Defines “substantially limits” as “materially

restricts”

– States that impairments that are episodic or in remission would qualify as disabilities if they would substantially impair a major life activity when active

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ADA AMENDMENTS ACTADA AMENDMENTS ACT

The ADA Amendments Act changes, continued:– Prohibits consideration of mitigating measures

• Except for glasses or corrective lenses

– Expands “regarded as” claims• Previously, the ADA required that for an employee to

be covered, the employer had to perceive that the employee had an impairment that limited a major life activity

• Now, an employee is covered if he or she is subjected to an adverse action based upon a perceived impairment– i.e. no showing required that the impairment is perceived to

limit a major life activity

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ADA AMENDMENTS ACT RegulationsADA AMENDMENTS ACT Regulations

Proposed Rules Implementing the ADA Amendments Act

– Includes list of “certain impairments that will obviously be substantially limiting• E.g. autism, cancer, cerebral palsy, diabetes, epilepsy,

HIV and AIDS, major depression and PTSD

– Includes list of impairments that will usually not be disabilities• E.g. broken limbs that heal normally, sprained joints;

appendicitis and seasonal or common influenza

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ADA AMENDMENTS ACT RegulationsADA AMENDMENTS ACT Regulations

Proposed Rules Implementing the ADA Amendments Act– “Substantial Limitation” of a major life activity

• As compared to most people in the general population as opposed to those similarly situated

– Major life activity of working• Includes an impairment that limits an individual’s

ability to perform the “type of work” at issue as opposed to a “broad range or class of jobs”

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ADA AMENDMENTS ACT RegulationsADA AMENDMENTS ACT Regulations

Proposed Rules Implementing the ADA Amendments Act– Expands definition of “major life activities”

• the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating)

• the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions")

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ADA AMENDMENTS ACT RegulationsADA AMENDMENTS ACT Regulations

Proposed Rules Implementing the ADA Amendments Act– Defines “mitigating measures” to include:

• Medication

• Medical supplies

• Equipment or appliances

• Prosthetics

• Hearing aids

– Expands chronic illnesses or conditions that will be covered since mitigating measures like medications cannot be considered

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EEOC Proposed Rules Relating to ADEAEEOC Proposed Rules Relating to ADEA

Age Discrimination in Employment Act– Employer’s may assert a defense that a

“reasonable factor other than age” (RFOA) justifies an employment practice that has a disparate impact on older workers

Proposed EEOC Rules– Intended to define “reasonable” to limit

subjective decision-making that has adverse impact on older workers• E.g. “flexibility” versus defining number of

requests and employee’s response

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EEOC Proposed Rules Relating to ADEAEEOC Proposed Rules Relating to ADEA

Defining “reasonable” factor other than age– a reasonable factor is one that is objectively

reasonable when viewed from the position of a reasonable employer under like circumstances

– six considerations as potentially relevant to the reasonableness determination:• whether the employment practice and the

manner of its implementation are common business practices;

• the extent to which the factor is related to the employer’s stated business goal;

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EEOC Proposed Rules Relating to ADEAEEOC Proposed Rules Relating to ADEA

– six considerations as potentially relevant to the reasonableness determination:

• the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately;

• the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;

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EEOC Proposed Rules Relating to ADEAEEOC Proposed Rules Relating to ADEA

– six considerations as potentially relevant to the reasonableness determination:

• the severity of the harm to individuals within the protected group, in terms of both the degree of injury and the number of persons adversely affected, and the extent to which the employer took preventative or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and

• whether other options were available and the reasons the employer selected the option it did.

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NLRB Recess AppointmentsNLRB Recess Appointments

Three of the Board’s seats have been vacant since January 2008– Member Wilma Liebman, 12-year Board member

appointed by President Clinton, was named Chair of the Board in January 2009

– Member Peter Schaumber was initially appointed by President George W. Bush

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NLRB Recess AppointmentsNLRB Recess Appointments

President Obama announced recess appointments on March 27, 2010 to fill two vacancies – Craig Becker

• Served as Associate General Counsel to the SEIU and the AFL-CIO

– Mark Gaston Pearce

• Attorney representing labor unions

• Member, New York State Industrial Board of Appeals

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NLRB Decisions that May be RevisitedNLRB Decisions that May be Revisited

Definition of supervisors (Oakwood, 2006)– Decision was viewed as expanding who would

be deemed a supervisor

Voluntary recognition not barring decertification petition (Dana 2004)

Employees in non-union workplaces do not have Weingarten rights (IBM Corp. 2004 – overruled a prior Clinton-era decision)

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NLRB Decisions that May be RevisitedNLRB Decisions that May be Revisited

“Salts” not entitled to back-pay unless it is proven the “salt” would have remained employed during the period in question (Oil Capital Sheet Metal, inc. 2007)

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New Board - Other ConsiderationsNew Board - Other Considerations

Board’s “Rule-Making” Authority– Broad discretionary authority

– Potential to issue rules similar to EFCA

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Worker, Homeownership and Business Worker, Homeownership and Business Assistance Act of 2009Assistance Act of 2009

Signed by President Obama on November 6, 2009

Extends unemployment benefits up to 20 additional weeks in states with a three-month average unemployment rate of at least 8.5%

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Update on Break TimesUpdate on Break Times

Patient Protection and Affordable Care Act – Amendment to the FLSA signed by President Obama

March 23, 2010

– Covered employers are required to furnish “reasonable” breaks to mothers to express milk for their infants who are up to one year old• does not apply to employers with fewer than 50 employees if its

requirements would “impose an undue hardship by causing the

employer significant difficulty or expense.”

– Requires employers to furnish a private space, other than a restroom

– Under federal law, the break time can be unpaid

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Gina’s practice is focused on representation of management interests in labor and employment law. She counsels and represents management in the areas of employment-law compliance issues, preparation of personnel policies and employment agreements, and has successfully defended numerous discrimination and other wrongful termination claims at the agency level and in both state and federal courts. She also represents employers in collective bargaining negotiations, arbitrations, unfair labor practice proceedings and related court actions.

Gina KuhlmanGina KuhlmanPartnerPartner

CLEVELANDCLEVELAND1375 East Ninth Street1375 East Ninth StreetOne Cleveland Center, One Cleveland Center, 99thth Floor FloorCleveland, Ohio 44114Cleveland, Ohio 44114Phone: (216) 820-4202Phone: (216) 820-4202Fax: (216) 623-0134Fax: (216) 623-0134gkuhlman@ralaw.comgkuhlman@ralaw.com

AKRONAKRON222 South Main Street222 South Main StreetAkron, Ohio 44308Akron, Ohio 44308Phone: (330) 849-6768Phone: (330) 849-6768Fax: (330) 376-4577Fax: (330) 376-4577Fax: (216) 623-0134Fax: (216) 623-0134gkuhlman@ralaw.comgkuhlman@ralaw.com

INTRODUCING OUR FIRM INTRODUCING OUR FIRM AND AND

CAPABILITIESCAPABILITIES

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More than 230 attorneys 43 paralegals and nurse consultants 225 staff members More than 40 areas of practice 12 offices

FIRM OVERVIEWFIRM OVERVIEW

Roetzel & Andress has the resources Roetzel & Andress has the resources necessary to meet our clients’ needs.necessary to meet our clients’ needs.

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FIRM OVERVIEWFIRM OVERVIEW Akron Cincinnati Columbus Cleveland Fort Lauderdale Fort Myers Naples Orlando Tallahassee Toledo Washington, D.C. New York City

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FIRM OVERVIEWFIRM OVERVIEW

• Intellectual Property & Information Technology

• Medical Defense

• Product Liability

• Real Estate

• Risk Management

• School Law

• Transportation

• Workers’ Compensation

• Bankruptcy & Creditors’ Rights

• Business Litigation

• Corporate & Business Services

• Employment Services

• Environmental, Health & Safety

• Estate Planning

• Government Relations

• Green & Sustainable Development

• Insurance Coverage

More than 40 areas of practice including:

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EMPLOYMENT SERVICES GROUPEMPLOYMENT SERVICES GROUP

The Labor and Employment attorneys at Roetzel & Andress work cooperatively with in-house counsel, risk management professionals and human resource departments to handle routine and complex regulatory compliance issues that affect the workplace.

We represent both union and non-union public and private companies, not-for-profit organizations, public sector entities, entrepreneurial ventures, and professional associations across the entire spectrum of labor and employment issues.

Many of our attorneys are Ohio State Bar Association board certified specialists in the areas of Workers' Compensation and Labor and Employment Law.

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REPRESENTATIVE SERVICESREPRESENTATIVE SERVICES

Employee compensation and leave policies Employee handbooks & employment agreements Employee screening and testing Government contractor requirements Layoffs and reductions in workforce Occupational safety and health issues

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AFFILIATED PRACTICE AREASAFFILIATED PRACTICE AREAS

EMPLOYEE BENEFITS LABOR & EMPLOYMENT LITIGATION AND

LABOR RELATIONS WORKERS’ COMPENSATION

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EMPLOYEE BENEFITSEMPLOYEE BENEFITS

REPRESENTATIVE SERVICES– 401(k)s, Employee Stock Ownership Plans (ESOPs)

and pension plans – Claims administration issues – Employee Retirement Income Security Act (ERISA) – Executive compensation – Family and Medical Leave Act (FMLA) – Fiduciary responsibility counseling – Fringe benefit plans – Litigation – Regulatory compliance – Welfare benefit plans

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LABOR & EMPLOYMENT LITIGATION AND LABOR & EMPLOYMENT LITIGATION AND LABOR RELATIONSLABOR RELATIONS

REPRESENTATIVE SERVICES– Alternative dispute resolution – Civil Rights law – Wrongful termination – Employment tort litigation – Employment discrimination – All types of harassment – Non-compete and confidentiality agreements – Trade secrets – Collective bargaining negotiations– Arbitrations, mediations and grievances– Unfair labor practice proceedings

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WORKERS’ COMPENSATIONWORKERS’ COMPENSATION

REPRESENTATIVE SERVICES– Adjudication Committee hearings – Appeal and mandamus actions – Audits, classifications and premium disputes – Bureau of Workers' Compensation (BWC) audits and protests – District, Staff and Industrial Commission hearings – Industrial injuries – Intentional tort and retaliation claims – OSHA standards, complaints, responses and inspections – Self-insured applications, complaints and carrier issues – Subrogation and third-party claims – Unemployment compensation rate and claim disputes – Violation of Specific Safety Requirements (VSSR)

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230 attorneys. 230 attorneys.

40 areas of practice. 40 areas of practice.

12 offices.12 offices.

One address – One address – www.ralaw.comwww.ralaw.com

AKRON AKRON ●● CINCINNATI CINCINNATI ● CLEVELAND ● COLUMBUS● CLEVELAND ● COLUMBUS FORT LAUDERDALE ●FORT LAUDERDALE ● FORT MYERSFORT MYERS ●● NAPLES NAPLES ●● NEW YORK CITYNEW YORK CITY ● ●

ORLANDOORLANDOTALLAHASSEE ● TOLEDO ● WASHINGTON, D.C.TALLAHASSEE ● TOLEDO ● WASHINGTON, D.C.