CCH Identifies Top Employment Law Developments Impacting 2010 and Beyond

(RIVERWOODS, ILL., January 11, 2010) – Challenges were abundant for both employees and employers in 2009; however, some issues will have a long-term impact on the workplace, according to CCH, a leading provider of tax, benefits and payroll law information and software and a part of Wolters Kluwer Law & Business (

Following, CCH employment law, human resources and workplace analysts identify 10 of the most significant developments in labor and employment over the past year and their implications for this year and beyond, as detailed in the CCH WorkDay blog.

1. Health care reform will require fast action
After the Senate’s Christmas-eve passage, the House and Senate versions of health care reform still need to be ironed out in a debate that seems likely to last well into early 2010. If health care reform is signed into law, employers would need to respond quickly. Some areas employers should watch include the potential need to:

  • Eliminate cost-sharing requirements for a variety of preventive measures;
  • Cover dependents until a later age;
  • Modify all preexisting condition limits; and
  • Revamp health summary plan descriptions to meet new requirements.

2. H1N1 drives reexamination of employment policies
The H1N1 flu virus emerged in March 2009, became a global pandemic by June and a national emergency by October. With the H1N1 threat, came a flurry of guidance on what employers should do about it.

Employer preparedness implicates a whole host of practical and legal considerations including absenteeism, presenteeism, paid sick leave, vaccination programs, employee cross-training, telecommuting, travel, disability and employee communications,” said CCH HR Analyst Joyce Gentry. “The wrong reaction could create liability for an employer under the various employment laws.”

3. Lilly Ledbetter Fair Pay Act signed into law
The Lilly Ledbetter Fair Pay Act was signed into law January 2009. It amends four anti-discrimination laws (Title VII, the ADEA, the ADA and the Rehabilitation Act) to restart the statute of limitations for filing a charge of discrimination each time a discriminatory paycheck is issued, not just when an employer makes an adverse pay-setting decision.

As a result of the law, employers must review their HR, benefits and compensation practices to ensure that they are consistently applied to reduce the risk of any potential employer liability resulting from this law,” said CCH Employment Law Analyst Brett Gorovsky, JD.

4. Enforcement of labor and employment laws ramped up
The election of President Barack Obama promised a renewed focus on labor and employment law legislation. However, with Congress focused on health care reform, the Obama Administration has increased its enforcement of existing labor and employment laws. This has included stepped-up enforcement in the areas of minimum wage, overtime and prevailing wage violations, federal contractor compliance, Form I-9 compliance and employee misclassification.

5. OSHA assesses largest fine in its history
Vowing to aggressively enforce safety and health standards to protect America’s workers, the Obama Administration marked 2009 with high penalties for safety violations. This included a record-setting $87.4 million fine issued to BP Products North America, Inc, for its alleged failure to correct potential hazards after an explosion killed and injured many employees at one of its refineries. The fine, which is the largest in OSHA’s history, is being contested by BP. High fines were also proposed against several other companies.

“These high fines are OSHA’s way of sending a strong ‘zero tolerance’ message that worker safety cannot be compromised and that employers should look elsewhere to reduce their expenses,” according to CCH OSHA Analyst Laurel Gershon.

6. Title VII: Ricci underscores tension between disparate treatment and disparate impact
The U.S. Supreme Court adopted a new Title VII standard in its 5-4 Ricci v. DeStefano decision. The Court held that before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, it must have a “strong basis in evidence” to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The city of New Haven, Conn., was found to have failed to make this showing and, thus, should not have tossed the results of its firefighter exams solely because it feared litigation from black or Hispanic applicants who were disparately impacted by the exam.

“The decision underscores a tension between Title VII’s disparate treatment and disparate impact provisions that has created a real conundrum for employers,” said CCH Employment Law Analyst Pamela Wolf, JD.

7. Title VII: Supreme Court raises the bar for plaintiffs in Gross and Iqbal
In June 2009, the U.S. Supreme Court in Gross v. FBL Servs , Inc. ruled that the Title VII mixed-motive framework does not apply in Age Discrimination in Employment Act cases, leaving age bias plaintiffs to prove age was the “but-for” cause of the adverse action taken against them. In Ashcroft v. Iqbal, a non-employment case issued a month earlier, the U.S. Supreme Court imposed heightened pleading standards for plaintiffs of every stripe when it concluded that plaintiffs cannot survive a motion to dismiss by relying on “mere conclusory statements,” but must instead set forth facts that establish “a plausible claim for relief.”

Much like what happened after the U.S. Supreme Court decided Ledbetter, Congress took notice and corrective legislation is already in the works with bills to overturn both decisions pending in Congress.

8. Controversial no-match rules rescinded while E-verify extended
In a major reversal of Bush Administration immigration policy, the Department of Homeland Security (DHS) rescinded its controversial 2007 no-match rule. At the same time, DHS announced the Obama Administration’s full support for E-verify by increasing the reach of the program to require certain federal contractors and subcontractors, including those who receive Recovery Act funds, use the program to verify the employment eligibility of their new hires and existing employees.

“The E-verify program, which has critics as far-ranging as business groups and immigrant advocacy groups, has been extended for three more years, and DHS has been given $137 million for fiscal 2010 to further improve its accuracy and compliance rates,” said Gorovsky.

9. Validity of two-member NLRB rulings to be heard by U.S. Supreme Court
With the precedential value of nearly 500 National Labor Relations Board (NLRB) decisions at stake, the U.S. Supreme Court granted cert in November 2009 in New Process Steel v. NLRB (Dkt No 08-1457) to consider whether a two-member panel of the NLRB has the authority to hear cases and issue orders regarding unfair labor practice charges. The NLRB has been operating with only two members for nearly two years. Rather than cease functioning, these two board members have continued to issue decisions in matters on which they can agree.

The Board has been acting on the advice of the Justice Department’s Office of Legal Counsel, which concluded “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.” The Board made such a delegation in December 2007 and, since that time, Liebman and Schaumber, acting as a quorum, have issued nearly 500 decisions. Meanwhile, three NLRB nominees are awaiting confirmation by the full Senate.

10. Economy free fall, mass layoffs fuel need for compliance guidance
The economy and unemployment were big news in 2009. Employers faced painful choices in 2009, forced to cut hours and workers – and they stared down the risk of lawsuits as a result. Among fears were complying with the Worker Adjustment and Retraining Notification (WARN) Act and other statutory obligations, on which CCH offered guidance.

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