1. Employment Law: 2009 In Review Presented by Alexis C. Knapp Littler Mendelson, P.C. 12/15/09

2. Alexis C. Knapp Associate Dean of the College of Business and Economics and Assistant Professor of Management at Houston Baptist University J.D., University of Houston Law Center Admitted to Texas State Bar in 2007 3. Recent Legislative Changes ADA FMLA GINA Ledbetter 4. The ADAAA and Key Changes to ADA in the Workplace Took effect January 1, 2009 Philosophical change Still awaiting final regulations Overturned large body of employer-friendly case law that had limited the definition of disabled Expands the list of major life activities Courts are now prohibited from considering mitigating measures Net effect => more individuals are disabled, and the emphasis has moved toward the reasonable accommodation dialogue 5. Key Changes to the FMLA Effective January 16, 2009 More clarification than a philosophical change What Happened The Short Version Two new qualifying events (the military amendments) Employers gained some administrative ground Employees gained some new rights Both sides received clarification The DOL published new forms 6. FMLA Basics Unchanged Who Can Take Leave Employees Who: Have a qualifying reason for leave; Work for a covered employer 50+; Are employed at a worksite with 50+ people in a 75- mile radius; and Have been employed for at least 12 months and worked 1,250 hours during the preceding 12 months. What it Provides Unpaid leave (12 or 26 weeks) Maintenance of benefits Reinstatement rights 7. The Military Amendments to the FMLA The National Defense Authorization Act of 2008 Qualifying Exigency Leave = up to 12 workweeks of leave Military Caregiver Leave = up to 26 workweeks of leave National Defense Authorization Act 2010 took effect October 28, 2009 Broadened what military servicemembers were covered 8. Some Pro-Employer Changes to the FMLA Perfect attendance awards, etc. Enforcement of employer policies (PTO, etc.) Waivers/releases Physical impossibility rule Absence patterns/abuse Medical necessity of intermittent leave 5 day rule Contacting physicians FFD tracking essential job functions 9. Some Pro-Employee Changes to the FMLA The Seven Year Eligibility Rule Non-FMLA leave can turn into FMLA leave Time on light duty does not count Paid leave may supplement WC or disability payments 10. FMLA Other Clarifications Serious health condition refined Employer notice obligations expanded and clarified See http://www.dol.gov/whd/fmla/index.htm If you are a covered employer, even with no eligible employees POST the General Notice Employee gets 15 days to obtain, seven days to cure if defective 11. GINA Takes Effect Effective November 21, 2009 Similar to Title VII prohibitions against discrimination includes anti-retaliation component Strict rules about acquiring and even stricter rules about disclosing Important Steps for Employers Be sure updated 2010 policies including geneticinformation in the list of protected categories Update posters Ensure any post-offer medical exams or FFD exams donot inquire about family medical history GINA and the ADA(AA) could impact employer wellness initiatives 12. The Ledbetter Fair Pay Act Signed in 2009, retroactive to May 28, 2008 180/300 day statute of limitations issue its not just when the discriminatory decision was made, or is imposed, but when its effects are felt (the paycheck rule) Bad news = employees can challenge pay-related decisions years after they have occurred Good news = backpay limited to two years 13. Other Developments and Current Issues 14. Reductions in Force and Release Agreements New EEOC Guidance on Release Agreements Dont forget the basics consideration issues What cannot be waived OWBPA Reminders Group termination programs Consideration/revocation periods Decisional unit information Language requirements WARN Reminders 15. Retaliation The Standard Burlington Northern & Santa Fe Railway Co. v. White Did the employer take an action that that might dissuade[ ] a reasonable worker from making or supporting a charge of discrimination? The bad news = more than just the tangible employment actions of the past The good news = petty slights and annoyances not enough Activity need not be formal to be protected activity Crawford 16. The Employee Free Choice Act Passed in House, stalled in Senate Passage in some form likely Three major changes Card check authorization Mandatory mediation/binding interest arbitration Enhanced penalties for employers 17. Pandemic/H1N1 Preparedness Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Topics Include: Disability-related inquiries Medical examinations/vaccinations Assessments of whether employee poses a direct threat Employers plan to manage its workforce before and during a pandemic 18. Miscellaneous Social Networking Inquiries the Houstons Restaurant Case Ricci the firefighters no good deed goes unpunished E-Verify Federal contractors I-9 obligations unchanged Investigation Issues sex stereotyping and the rushed investigation 19. Expected Areas of Interest for the Current Administration Unionization Discrimination/Civil Rights WARN expansion FMLA expansion Arbitration agreements Minimum wage increases Paid sick time 20. Increased Enforcement NLRB OFCCP FLSA/Wage and Hour EEOC Immigration 21. Thank You Questions? Alexis C. Knapp aknapp@littler.com (713) 652-4706