2010 Compliance Update

Jenna ReedDirector, Human Resource Development Services

Americans With Disabilities Amendments Act – Effective January

1, 2009

Provides broader protection for individuals by expanding the scope of the ADA

New EEOC Guidelines (Final regulations expected late 2009 or early 2010):

– Provides non-exhaustive list of major life activities

– Provides non-exhaustive list of impairments that will automatically meet the definition of a disability

– Impairments that are episodic, or in remission are covered if would qualify when active

– Do not consider mitigating measures (i.e. medication)

– “Substantially limits” definition loosened – “common sense assessment comparing the individual to most people in the general population”

– New regarded as analysis

Oregon passed a bill to amend the state disability laws to mirror the new amendments (Effective January 1, 2010)

Employer Notice to Employee:Notice to employee within five days

1. Eligibility and Rights and Responsibilities Notice (Parts 1 and 2)

2. Medical certification form if required

3. Designation notice

Poster, handbook or upon hire, eligibility notice, rights and responsibilities notice, designation notice

Employer Notice to Employee:Must provide written notice if employee is not eligible for the reason requested and state reason why

If medical certification is incomplete or insufficient, employer must provide written notification of ineligibility and

− Must state what additional information is required

Medical CertificationIf the certification is in a foreign language the employee must provide a written translation upon request

Leave for Spouses of Military Personnel – Effective July 25,

2009

New Oregon law:Employers with 25 or more employees must provide up to 14 days of leave per deployment to spouse of military personnel

Employee must work at least 20 hours per week to be eligible

Leave covers the spouse’s impending call to active duty before deployment or while on leave from deployment

Employees must provide employers with at least 5 days notice once their spouse receives official notice

Leave is unpaid but employees are entitled to use any paid leave available

When appropriate, leave can run concurrently with the Qualifying Exigency reason under FMLA

I-9 Form – Updated Throughout 2009

New Form:All documents presented must be unexpired

Must be used for new or rehires

Updated I-9 form is available, but employers can use the form with either the 8/7/09 or 2/2/09 revision date

New Eligible Document:New passport card can be used as a List A document for I-9 purposes

Documents Removed:Form I-688, Temporary resident Card;

Form I-688A, Employment Authorization card;

Form I-688B, Employment Authorization card

Rest and Meal Periods -Effective January 12, 2009

New Rule:Employers who do not provide employees with an uninterrupted 30 minute meal period must show:

− Failure was caused by unforeseeable or unanticipated circumstances

− Industry practice or custom has established a paid meal period of less than 30 minutes, but not less than 20 minutes

− Providing the meal period would provide an undue hardship

Employers seeking an undue hardship exception must notify employees with a state proscribed from (Effective March 16, 2009)

Employees must still be provided time to rest and consume a meal – with pay.

Federal Contractors and E-Verify – Effective September 8, 2009

Federal Contractors:All federal contractors with contracts over $100,000 and lasting longer than 120 days must use E-Verify

Also applies to subcontractors providing services or construction over $3,000

Requires verification of all new hires during the contract term and current employees working on the contract

Applies only to contracts that are new or modified after September 8, 2009

Requires notice to employees and applicants (can be with other employment posters)

In October, Congress extended E-Verify for three more years

Lilly Ledbetter Fair Pay Act – Signed on January 29, 2009

Legislation:Modifies the statute of limitations on pay discrimination claims under the Ledbetter case

Statute of limitations is extended every time an employee receives discriminatory pay

New Smoke Free Workplace Law – Effective January 1, 2009

New law:Prohibits smoking within ten feet of a entrance, exit, window that opens, and ventilation intakes

Must post “No Smoking Within 10 Feet” signs at all building entrances and exits.

Must train employees how to address customers who violate the law

Must move debris and smoking receptacles to beyond ten feet of protected areas

Medical Marijuana

New Federal Guidelines:Obama administration announced no more federal arrests or prosecution for individuals in compliance with state law

New guidelines are the status quo for Oregon

No impact on how employers address the issue as it relates to employees

None of the medical marijuana bills passed in Oregon’s legislature

Genetic Information Nondiscrimination Act

Effective November 21, 2009:Applies to employers with 15 or more employees

Prohibits use of genetic information in making decisions related to any terms, conditions, or privileges of employment

Prohibits covered entities from intentionally acquiring genetic information, requires confidentiality with respect to genetic information and prohibits retaliation.

Genetic information includes:

— Information about an individual’s genetic tests, genetic tests of a family member, and family medical history

Federal and State Legislation 2010

Oregon’s Minimum Wage

Effective January 1, 2010No increase for 2010

Rate will continue to be $8.40/hr

New “Equal Employment Opportunity is the Law” Poster

Effective November 21, 2009Incorporates ADAA changes and new Genetic Information Nondiscrimination Act

Must post a new poster, or a supplement

Captive Audience – Workplace

Communications

Effective January 1, 2010Employer cannot discharge, discipline or penalize or take any other employment action against an employee who:

− Refuses to participate or attend an employer sponsored meeting and

− Where the primary purpose of the meeting is to discuss religious or political matters

Political matters include discussions about unions

Requires employer to post a notice of employee rights pertaining to this law

Exceptions for religious and political organizations

Meetings about religious or political matters must be strictly voluntary

Oregon Workplace Religious Freedom Act

Effective January 1, 2010Expands on employer’s pre-existing obligation to accommodate religious beliefs

Exceptions only acceptable if employer can prove undue hardship (significant difficulty and expense)

− Nature and cost of accommodation

− Financial resources of employer

− Type of business operations

− Safety and health requirements

Employers must:

− Allow employees to use paid time off

− Wear religious clothing (unless safety is an issue)

− Take time off

Safety Accommodations

Effective January 1, 2010Requires employers to provide reasonable safety accommodations to victims of domestic violence, sexual assault or stalking

Accommodations may include but are not limited to:

− Transfer

− Reassignment

− Change in schedule

− Change in locks

− Change in work area

Employer can require certification if employee is a victim of domestic violence, sexual assault or stalking

− Police report

− Protective order

− Documentation from an attorney, law enforcement officer, health care professional, mental health professional, counselor, member of the clergy, victim services

Hands Free Cell Phones

Effective January 1, 2010Requires all persons to use hands free cell phone devices while driving and talking on the phone

Prohibits texting, emailing and other uses of the cell phone which prevent a driver from having both hands on the wheel

Provides an exception for people driving “in the scope of the person’s employment if operation of the motor vehicle is necessary for the person’s job.”

― Law does not define what is within the scope of a person’s employment

Whistleblowers

Effective January 1, 2010Prohibits disciplining, discharging or otherwise penalizing an employee for reporting in good faith the employer’s violation of any state or federal law, rule or regulation.

― Law does not define what it means to “report” or to whom

Automated External Defibrillators

Effective January 1, 2010Requires AED machines in places of public assembly with at least 50,000 square feet of floor space and

− Public congregates for purposes such as deliberation, shopping, entertainment, awaiting transportation or

− Where business activities are conducted and at least 25 individuals gather for a normal business day

Employers are immune from liability if at least one person is trained and present

Notification of Employee Rights Under Federal Labor Laws

Executive Order– Signed January 30, 2009 but awaiting final rulesApplies to all federal contractors with contracts of $100,000 or more and all subcontractors to the prime contract

Requires notice to employees about their union rights

Must be posted in a place where other employment notices are posted

Provisions must be included in every subcontract entered into as part of the prime contract

Employee Free Choice Act

Introduced in March 2009Eliminates secret ballot process and NLRB supervision; but new revisions keep secret ballot and shorten the election period

Allows mediation and arbitration if employer and new union fail to ratify a contract within 120 days

Allows civil penalties for employer violations (up $20,000 per violation)

Allows triple the amount of back pay for employees discriminated against during campaign or negotiations

Currently on hold until healthcare issue is resolved

Federal Immigration Legislation

Expected to be introduced this fallPresident Obama has told Congress he wants a comprehensive immigration bill by the end of the year

First step was E-Verify

Border Control and Accountability Act (Pending)

―Would suspend or debar contractors who employ unauthorized aliens

―Prohibit DHS from contracting with companies that don’t use E-Verify

Family Medical Leave Act (Balancing Act of 2009)

Bills introduced June 25, 2009Likely to pass in pieces or as part of a large bill – temporarily on backburner

Current provisions include:− Parental involvement leave

− Domestic violence leave

Would create Family Medical Leave Insurance Fund− Funded by employers and employees

Fair Pay Legislation

Paycheck Fairness ActEmployers must prove wage disparities are job related, not because of gender

Allows employees to openly discuss wages and includes anti-retaliation provisions

Fair Pay ActProhibits employers from paying employees in jobs dominated by one race or gender a lower rate than in jobs with equivalent “skill, effort, responsibility and working conditions.”

Employment Non-Discrimination Act

Introduced June 24, 2009Prohibits discrimination based on sexual orientation or gender identity

THANK YOU