Wisconsin IPMA-HRWisconsin IPMA-HR April 17, 2009 April 17, 2009

Washington Update Washington Update

By By

Tina ChiappettaTina Chiappetta

Senior Director of Government Senior Director of Government Affairs Affairs

Dramatic ChangesDramatic Changes

• The White House, Senate and House The White House, Senate and House of Representatives are all controlled by of Representatives are all controlled by Democrats for the first time since 1994Democrats for the first time since 1994

• Senate Democrats are still shy of the Senate Democrats are still shy of the filibuster proof margin of 60 votesfilibuster proof margin of 60 votes

• Expect to see employee-friendly Expect to see employee-friendly legislation and legislation supported by legislation and legislation supported by unionsunions

EconomyEconomy

• Unemployment up to 8.5%Unemployment up to 8.5%– Actual unemployment rate is closer to 15% Actual unemployment rate is closer to 15%

• BLS reports 13.2 million are unemployed BLS reports 13.2 million are unemployed

• IPMA-HR Public Sector Employment Outlook IPMA-HR Public Sector Employment Outlook Survey October: 52% of respondents still Survey October: 52% of respondents still planning to hire for new positions in 2009, planning to hire for new positions in 2009, with #1 hiring area being public safetywith #1 hiring area being public safety– More than double the # of respondents indicated that they plan lay-offs More than double the # of respondents indicated that they plan lay-offs

this year as compared to last yearthis year as compared to last year– 67% of respondents indicated they are keeping vacancies unfilled as 67% of respondents indicated they are keeping vacancies unfilled as

compared to 31% in 2008compared to 31% in 2008

Regulation FreezeRegulation Freeze

• White House Chief of Staff Rahm Emanuel issued White House Chief of Staff Rahm Emanuel issued a memo Jan. 20 to all federal agencies and a memo Jan. 20 to all federal agencies and departments freezing any new or pending departments freezing any new or pending regulations drafted by the Bush administration. regulations drafted by the Bush administration.

The memo states that no proposed or final The memo states that no proposed or final regulation should be sent to the regulation should be sent to the Federal RegisterFederal Register for publication until it has been reviewed and for publication until it has been reviewed and approved by a department or agency head approved by a department or agency head appointed by the new administration. appointed by the new administration.

Regulation FreezeRegulation Freeze

• Department of Labor “Clean-Up” of Fair Department of Labor “Clean-Up” of Fair Labor Standards Act (FLSA) regulations Labor Standards Act (FLSA) regulations on indefinite hold on indefinite hold

• IPMA-HR and National League of Cities, IPMA-HR and National League of Cities, International Municipal Lawyers International Municipal Lawyers Association filed comments Association filed comments

• Use of compensatory time, overtime for Use of compensatory time, overtime for dual-function paramedics/firefighters dual-function paramedics/firefighters

Fair Pay Fair Pay

• President Obama’s first law: Ledbetter President Obama’s first law: Ledbetter Fair Pay Act, overturns the Supreme Fair Pay Act, overturns the Supreme Court’s opinion in Court’s opinion in Lilly Ledbetter v. Lilly Ledbetter v. Goodyear Tire & Rubber Co. Inc. Goodyear Tire & Rubber Co. Inc. (2007)(2007)

• Eliminates statutes of limitation in Eliminates statutes of limitation in cases where compensation is cases where compensation is concernedconcerned

• Creates new right of action for Creates new right of action for “aggrieved persons” to file claim “aggrieved persons” to file claim without filing an EEOC chargewithout filing an EEOC charge

Fair Pay Fair Pay

• IPMA-HR opposed the legislation IPMA-HR opposed the legislation because it is likely to increase because it is likely to increase litigation without solving any litigation without solving any underlying gender discrimination underlying gender discrimination issues issues

• Next step: EEOC will develop Next step: EEOC will develop regulations implementing the new regulations implementing the new law law

Mandatory Collective Mandatory Collective Bargaining Bargaining

• The Public Safety Employer-The Public Safety Employer-Employee Cooperation Act Employee Cooperation Act reintroduced reintroduced

• The bills are expected to pass and be The bills are expected to pass and be signed into lawsigned into law

• Strong support of labor unions – IAFF Strong support of labor unions – IAFF and FOP and FOP

Mandatory Collective Mandatory Collective Bargaining Bargaining

• Requires states and localities to Requires states and localities to engage in collective bargaining with engage in collective bargaining with police, fire and emergency medical police, fire and emergency medical technicians technicians

• Gives the Federal Labor Relations Gives the Federal Labor Relations Authority (FLRA) the power to create Authority (FLRA) the power to create regulations and ensure that states regulations and ensure that states laws are substantially compliantlaws are substantially compliant

Mandatory Collective Mandatory Collective Bargaining Bargaining

• IPMA-HR has been a leader in the effort to IPMA-HR has been a leader in the effort to oppose the bills, including testifying before oppose the bills, including testifying before a House subcommittee and meeting with a House subcommittee and meeting with House and Senate staffHouse and Senate staff

• Concerns include the federalization of Concerns include the federalization of collective bargaining, increased costs, loss collective bargaining, increased costs, loss of local control over expenditures for of local control over expenditures for public safety , similar request for public safety , similar request for unionization by other employee groupsunionization by other employee groups

FMLA FMLA

• One of the most important changes One of the most important changes last year was the expansion of the last year was the expansion of the FMLA for military families FMLA for military families

• Two parts – one allows caregivers 26 Two parts – one allows caregivers 26 weeks of leave per 12 month weeks of leave per 12 month

period to care for period to care for

injured/ill servicemember injured/ill servicemember

FMLAFMLA

• Second part allows eligible Second part allows eligible employees up to 12 weeks of leave employees up to 12 weeks of leave for “any qualifying exigency” related for “any qualifying exigency” related to a son/daughter, spouse or parent’s to a son/daughter, spouse or parent’s call to active duty call to active duty

• Became effective January 16, 2009 Became effective January 16, 2009

FMLA FMLA

• The Department of Labor also revised The Department of Labor also revised the current regulations making many the current regulations making many changes to the notice and certification changes to the notice and certification provisionsprovisions

• Department said it lacked the Department said it lacked the authority to address the definition of a authority to address the definition of a serious health condition or the use of serious health condition or the use of intermittent leaveintermittent leave

• Sample policies available on the IPMA-Sample policies available on the IPMA-HR Center websiteHR Center website

Some of the changes to the Some of the changes to the regulations include: regulations include:

• Employers can provide perfect attendance awards without running afoul of the FMLA

•Holidays occurring within a full week of FMLA leave do not have to be considered

•HR can contact employee’s health provider directly to clarify or authenticate a medical certification (may not seek additional information)

Intermittent leave issues•Must be medically necessary and certification must indicate that it is medically necessary •Increments same as used for other types of leave as long as not more than one hour. No need to account for time in 15 or 6 minute increments •Employee must make a reasonable effort to schedule leave so as not to unduly disrupt employer’s operations

ADA Amendments Act ADA Amendments Act

• Effective January 1, 2009 Effective January 1, 2009

• More reasonable than the originally More reasonable than the originally proposed ADA Restoration Actproposed ADA Restoration Act

• Expands the definition of a disability Expands the definition of a disability by specifically rejecting several by specifically rejecting several Supreme Court opinions Supreme Court opinions

ADA Amendments Act

• ADA defines disability as: (1) physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment

• Amendments lowers the bar an employee must clear to establish ADA protection – Substantially limited shall be interpreted broadly

ADA Amendments Act ADA Amendments Act

• ADAAA includes a non-exhaustive list of ADAAA includes a non-exhaustive list of major life activities and lists major bodily major life activities and lists major bodily functions that would be covered functions that would be covered

• Need only show one major life activity Need only show one major life activity impacted – e.g. the ability to think impacted – e.g. the ability to think

• Disabilities are considered in their untreated Disabilities are considered in their untreated states – e.g. if an individual successfully states – e.g. if an individual successfully controls her diabetes with insulin she may controls her diabetes with insulin she may still be disabled under the law still be disabled under the law

ADA Amendments Act ADA Amendments Act

• Expands the “regarded as” prong by Expands the “regarded as” prong by allowing claims whether or not the allowing claims whether or not the disability substantially limits a major disability substantially limits a major life activity life activity

• Employers do not have to Employers do not have to accommodate under the “regarded accommodate under the “regarded as” prong as” prong

• EEOC expected to issue regulations EEOC expected to issue regulations

Genetic Nondiscrimination Genetic Nondiscrimination

• Last year the Genetic Information Last year the Genetic Information Nondiscrimination Act became lawNondiscrimination Act became law

• Prohibits employers from using genetic Prohibits employers from using genetic information in making decisions related information in making decisions related to any terms, conditions, or privileges of to any terms, conditions, or privileges of employment employment

• State laws that provide equal or greater State laws that provide equal or greater protections are NOT preempted protections are NOT preempted

Genetic Nondiscrimination Genetic Nondiscrimination

• Bans the collection of genetic Bans the collection of genetic information except in very limited information except in very limited circumstances circumstances

• EEOC issued proposed regulations EEOC issued proposed regulations March 2, final by May 21, 2009 March 2, final by May 21, 2009

• Law and regulations become effective Law and regulations become effective November 2009November 2009

Genetic Nondiscrimination Genetic Nondiscrimination

•Law prohibits retaliation and Law prohibits retaliation and regulations may also prohibit regulations may also prohibit harassmentharassment

•Damages same as under Title VII Damages same as under Title VII

Mental Health Parity Mental Health Parity

• In October 2008, mental health parity In October 2008, mental health parity legislation passed as part of an economic legislation passed as part of an economic rescue package -effective January 1, 2010 rescue package -effective January 1, 2010

• Requires mental and physical impairments Requires mental and physical impairments to be treated the sameto be treated the same

• It does not require health plans to cover It does not require health plans to cover mental health or addiction but if they do, mental health or addiction but if they do, the coverage provided must be equal to the coverage provided must be equal to that provided physical impairmentsthat provided physical impairments

• The number of doctors’ visits, co-pays and The number of doctors’ visits, co-pays and deductibles must be the same for mental deductibles must be the same for mental and physical impairmentsand physical impairments

Mental Health Parity Mental Health Parity

• Self-insured public sector plans that Self-insured public sector plans that have been able to opt out under the have been able to opt out under the existing mental health parity law will existing mental health parity law will be able to continue to opt out be able to continue to opt out

• Opt-out is not automatic Opt-out is not automatic

• Generally effective after October 2009Generally effective after October 2009

• Collectively bargained plans have a Collectively bargained plans have a delayed implementation date delayed implementation date

Employee Free Choice Act Employee Free Choice Act

• Allows for “card check” by amending Allows for “card check” by amending the NLRA to require the NLRB to certify the NLRA to require the NLRB to certify a bargaining representative without an a bargaining representative without an election election

• Very controversial, supported by unions Very controversial, supported by unions but generally opposed by employers as but generally opposed by employers as taking away the right to a secret ballot taking away the right to a secret ballot

• Direct impact on private sector Direct impact on private sector employers only employers only

Employee Free Choice Act Employee Free Choice Act

• Passed the House of Representatives Passed the House of Representatives last year but failed to garner the 60 last year but failed to garner the 60 votes needed in the Senate to end votes needed in the Senate to end debatedebate

• Currently discussing a “compromise” Currently discussing a “compromise”

• Prospects for passage dimming in Prospects for passage dimming in light of Senator Specter’s objections light of Senator Specter’s objections

E-Verify E-Verify

• Legislation passed extending the Legislation passed extending the current E-verify program to September current E-verify program to September 2009 2009

• Employer groups successful in getting Employer groups successful in getting stay so that federal contractors do not stay so that federal contractors do not need to use E-verify until May 2009need to use E-verify until May 2009

• IPMA-HR has been working for IPMA-HR has been working for common-sense changes to employee common-sense changes to employee eligibility verification eligibility verification

• Legislation S. 2668 and H.R 5719 -- the Legislation S. 2668 and H.R 5719 -- the MOBILE Cell Phone Act of 2009 introduced MOBILE Cell Phone Act of 2009 introduced this year to remove cell phones from this year to remove cell phones from “listed property” “listed property”

• Currently employer-provided cell phones Currently employer-provided cell phones are considered a taxable benefit if used for are considered a taxable benefit if used for personal calls. Employees must track calls personal calls. Employees must track calls and pay for individual calls as well as a pro and pay for individual calls as well as a pro rata share of the monthly fee rata share of the monthly fee

Cell Phone Policy

• Last year similar legislation passed Last year similar legislation passed the House of Representatives but the the House of Representatives but the Senate ran out of time before they Senate ran out of time before they could vote on itcould vote on it

• Prospects for passage this year are Prospects for passage this year are good good

Cell Phone Policy

Employment Nondiscrimination Employment Nondiscrimination Act Act

• Last session, ENDA passed the House by a Last session, ENDA passed the House by a vote of 235-184 not voted on in the Senate vote of 235-184 not voted on in the Senate

• Prohibits employers from discriminating Prohibits employers from discriminating against individuals based on sexual against individuals based on sexual orientation – provision relating to gender orientation – provision relating to gender identity was droppedidentity was dropped

• This bill has the support of some major This bill has the support of some major business groupsbusiness groups

Healthcare Reform Healthcare Reform

• President Obama pledged to address President Obama pledged to address healthcare and we can expect healthcare and we can expect legislation this year legislation this year

• Employer-based healthcare to be Employer-based healthcare to be debateddebated

• IPMA-HR has started a healthcare IPMA-HR has started a healthcare taskforce to advise the association taskforce to advise the association on various proposals on various proposals

Healthy Families Act

• Bills introduced last year would require employers with 15+ employees to provide a minimum of seven paid sick days per year

• Issues include part-time employee benefits (between 20-30hours per week)

• Imposition of federal notification requirements • For example: no doctor’s note unless absence

of 3 days or more – commencement of leave cannot be delayed

Supreme CourtSupreme Court

• Supreme Court ruled January 26, 2009 Supreme Court ruled January 26, 2009 that Title VII’s anti-retaliation provisions that Title VII’s anti-retaliation provisions are triggered by an employer’s internal are triggered by an employer’s internal investigationinvestigation

• Court unanimously overturned 6Court unanimously overturned 6thth Circuit Circuit and remanded for further proceedingsand remanded for further proceedings

• Crawford v. Metro Government of Crawford v. Metro Government of Nashville and Davidson City, TN, Nashville and Davidson City, TN, Docket Docket No. 06-1595No. 06-1595

• On April 1, Court ruled 5-4 that mandatory arbitration On April 1, Court ruled 5-4 that mandatory arbitration clause in a collective bargaining agreement requiring clause in a collective bargaining agreement requiring arbitration of age discrimination claims is valid arbitration of age discrimination claims is valid

• An employee alleging age discrimination must An employee alleging age discrimination must arbitrate claim – cannot take case directly to courtarbitrate claim – cannot take case directly to court

• Impact: Arbitrators are largely seen as more Impact: Arbitrators are largely seen as more employer-friendly and employees likely to have more employer-friendly and employees likely to have more difficult time pursuing age discrimination claims difficult time pursuing age discrimination claims

• 14 Penn Plaza LLC v. Pyett14 Penn Plaza LLC v. Pyett, Docket No. 07-581, Docket No. 07-581

Supreme Court

• Recently added a testing case to it’s Recently added a testing case to it’s docket docket

• Will decide when a city can refuse to Will decide when a city can refuse to certify the results of an exam that certify the results of an exam that has an adverse impact on minority has an adverse impact on minority candidatescandidates

• Case arose from firefighter Case arose from firefighter promotional exams in New Haven, CTpromotional exams in New Haven, CT

Supreme Court

• IPMA-HR, NLC and IMLA filed a brief IPMA-HR, NLC and IMLA filed a brief on behalf of the City of New Haven, on behalf of the City of New Haven, as did the Obama Administration as did the Obama Administration

• Ricci et al. v. DeStefanoRicci et al. v. DeStefano, Docket No. , Docket No. 07-1428 07-1428

• Opinions in above cases are Opinions in above cases are expected prior to the Court’s expected prior to the Court’s adjournment in June 2009. adjournment in June 2009.

Supreme Court

Additional Information

•Contact Tina Chiappetta, Senior Director of Government Affairs & Communications

•Tchiappetta@ipma-hr.org

•703/549-7100