What's New In Employment Law For 2010? Changes In Workplace Law You Need To Know February 9, 2010

1. What's New In Employment Law For 2010?Changes In Workplace Law You Need To KnowFebruary 9, 2010 Freeman Mathis & Gary, LLP 100 Galleria Parkway SE Suite 1600 Atlanta, GA 30339

2. EEOC CHARGES 2006 75,768 2007 82,792 2008 95,402 2009 93,277

3. EEOC Charge Statistics

4. 2009 Georgia Employment Statistics

5. FLSA CLAIMS ARE INCREASING IN THE NORTHERN DISTRICT OF GEORGIA 2009 140 FLSA Northern District 28 FLSA Middle District 1 FLSA Southern District 2008 101 Northern District 14 Middle District 8 Southern District 2007 62 Northern District 36 Middle District 7 Southern District 2006 44 Northern District 7 Middle District 14 Southern District

6. Trends in Class Suits FLSA class action have increased nationally FLSA class actions suits most filed employment class action suits Settlements are enormous: check exempt employee classifications / meal periods / salary deductions

7. NLRA Cases Private Representation Elections 588 in first half of 2009, representing 23,343 workers 813 in first half of 2008, representing 35,144 workers Unions won over 73% of elections in first half of 2009. Up from 66% in 2008. ULP Cases 22,941 in 2009 22,497 in 2008 22,331 in 2007

8. Changes You Need To Know About COBRA subsidy extended GINA effective, and proposed regulations FMLA military definitions expanded New NLRA Board: What to Expect Executive Orders Covering Construction

9. COBRA Subsidy Employer pays for 65% subsidy and receives special tax deduction Subsidy was to end on Nov. 30, 2009 Congress has now extended and expanded the COBRA subsidy

10. New COBRA Subsidy NOW: Employees terminated by February 28, 2010 eligible Benefits extended from 9 months to 15 months New retroactive provision: employees under old 9 month provision have 60 days to extend coverage to 15 months Employee has 30 days to pay unpaid premiums Notice of extended benefits must be sent within 90 days

11. GINA and its regulations Prohibits discrimination in group health insurance and in employment on the basis of “genetic information” ”Genetic information” includes: genetic tests family medical history request/receipt of genetic services genetic information of a fetus/embryo of an individual or his or her family.

12. GINA, cont’d GINA prohibits employers from discriminating in all privileges of employment Cannot limit, segregate or reclassify employees because of genetic information Example: an employer who learns that an employee has a family history of heart disease cannot then reclassify that employee to a less stressful position. Prohibits retaliation

13. GINA, cont’d GINA is enforced by the EEOC, and incorporates the damage provisions of Title VII, including the damage caps. No cause of action for disparate impact

14. FMLA Expanded October 28, 2009, President Obama signed the National Defense Authorization Act of 2010 Hidden in bill was expansion of 2008 FMLA amendments for military personnel 2 major changes affect the scope of military exigency leave and military caregiver leave.

15. Exigency Leave Family of a member of the Reserves, National Guard or a member on active duty military may take leave for a “qualifying exigency.” Eliminated requirement of a “contingency operation” Expanded to cover family of active duty as well as reserve members Family exigency covers several including: dealing with short-notice deployment attending military ceremonies attending childcare and school activities due to a family members deployment, etc.

16. Military Caregiver Leave Now, covers leave when service aggravated a pre-existing condition Now covers family members of veterans Before, covered returning military member injured while serving. Covers treatment for injuries up to 5 years after active service Family members are: spouse, son, daughter, parent, or next of kin All of these changes were effective immediately.

17. New NLRB Members? President Obama has nominated three new members to sit on the NLRB Craig Becker Associate General Counsel for the Service Employees International Union Senate refused to confirm Becker on December 24, 2009. Mark G. Pearce Attorney who represents Unions Formerly worked in Buffalo’s NLRB office Represented Union leaders who embezzled from the Unions Brian E. Hayes Republican Committee Staff Member

18. NLRB, cont. If all three are affirmed, joining sitting members Chairman Wilma B. Liebman and member Peter C. Schamber, this would be the first full board since December 2007. Courts have upheld decisions made by the current 2 member board

19. Three Pro-Labor Executive Orders EO 13494 Service Contract Act successor employers must make job offers to prior employers union employees Contract must be for the same or similar services at the same location Predecessor contractor must provide list of service employees working within the last month of performance 10 days prior to contract completion Enforcement regulations to be issued EO 13495 Federal contractors and subcontractors prohibited from being reimbursed for the costs of activities undertaken to persuade or dissuade employees from exercising rights to collectively bargain Enforcement regulations to be issued

20. EO 13496 Revoked President Bush’s “Beck” order, which required federal contractors to inform employees of their right to refuse to pay union dues for non-collective bargaining activities. Requires federal contractors to post a notice of employees rights Proposed rule requires lengthy notice regarding employees rights in a conspicuous place and contracts and subcontracts must include clause ensuring compliance Rule and the notice not yet finalized; Expect final rule during the summer

21. Major Changes In NLRB Precedent Bush era precedents at risk: representation rights extended to non-union employees during investigatory interviews Stricter rules regarding a company’s right to restrict employee use of email for union related solicitation Broader Section 7 (concerted activity) rights Limited rights to seek de-certification if an employer voluntarily recognizes a union

22. Expect bargaining units to include both contingent and temporary employees, as well as regular employees without the consent of all employers (such as the temporary staffing agency) Stronger protections for union salts Greater reinstatement rights for economic strikers

23. Medicare Medicare pays health care of enrolled individuals age 65 and older, certain disabled individuals, and those with permanent kidney failure Medicare is the “secondary payer” for health care costs when there is another plan that pays for the costs (group health plan, liability insurance, workers’ compensation)

24. MMSEA Section 111 Creates new reporting requirements to provide government with information to ensure that Medicare is secondary payer Reporting can be performed through an agent, such as a third party administrator, but liability remains with the responsible reporting entity There are penalties for noncompliance

25. Who Must Report? Responsible Reporting Entities : Liability insurance (including self-insurance) No fault insurance Workers compensation programs Is Your Company An RRE? Fully insured with no deductible: insurer is the RRE Insured with a deductible: If insurer pays deductible directly to claimant and is reimbursed by business, then insurance carrier is the RRE If business pays deductible directly to claimant, then it is the RRE with respect to the deductible amount

26. What Must Be Reported? An RRE must report claims where: An injured party is or was a Medicare beneficiary; and The claims are resolved (fully or partially) through settlement, judgment, award, or payment. Must report the identity of the Medicare beneficiary and “other information to be determined by the Secretary

27. Section 111 Registration Deadline was December 31, 2009 Go to www.Section111.cms.hhs.gov Name an authorized representative Person with authority to bind company Normally someone at executive level Name an account manager Manages overall reporting process Can be employee or agent of company Sign verification and return to CMS

28. E-Verify Agenda I-9 Refresher E-Verify Requirements for Federal Contractors Timing Existing employee Tentative Non-Confirmations Voluntary Compliance E-Verify Requirements for Georgia State Contractors Resources

29. E-Verify • Creates rebuttable presumption that employer did not knowingly hire an unauthorized worker

30. I-9 Update Changes to the I-9 process: SSN required in Section 1 List B documents must contain photographs Employers must retain copies of LPR/EAD cards E-Verify queries (based upon completed Forms I-9) must be submitted by the third day of work

31. E-Verify Updates for Federal Contractors Executive Order 12989 Requires federal contractors/subs to use E-Verify for: All new hires nationwide; Existing employees “assigned to the [federal] contract” Prime Contractor Exemptions Less than $100,000 Fewer than 120 days Outside the U.S. COTS (off shelf items) Contract Clause Flows To Subs: If E-Verify clause is in main contract More than $3,000

32. Federal Contractor Requirements September 8, 2009: Contracts will include E-Verify clause if government finds contract subject to requirement 30 days from contract award: Employer must register with E-Verify 90 days from registration: All new hires (nationwide) must be submitted within 3 business days of date of hire All existing employees assigned to the contract must be submitted Employees assigned to the contract at a later date must be submitted within 30 days from the date of their assignment

33. Federal Contractor Requirements Employers already registered for E-Verify must update status profile to federal contractor Cannot update profiles unless and until employer enters into a contract including the E-Verify requirement Once contract obligations are complete: Update profile to indicate that no longer a federal contractor May remain registered on volunteer basis (using E-Verify only for new hires); or End participation in E-Verify

34. Federal Contractors -Existing Employees Who is an “employee assigned to the contract”? Hired after 11/6/1986 Performing directly contract work In the United States Under a contract containing the E-Verify clause Who is not an “employee assigned to the contract”? An employee who normally performs support work, such as indirect or overhead functions; and Who does not perform any substantial duties applicable to the contract

35. Voluntary E-Verify for Entire Workforce Federal Contractors Only Employers can submit all existing employees working in the U.S. who were hired after 11/6/1986 Must notify DHS of this decision and initiate queries for all existing employees within 180 days of such notification

36. Resolving E-Verify Cases Initial verification results will be: Employment authorized SSA Tentative Nonconfirmation (TNC) DHS Verification in Process Handling a TNC Inform the employee of the TNC Print the TNC notice and review it with the employee The employee decides whether to contest the TNC If the employee does not contest the TNC, they are terminated If the employee contests the TNC, refer them to the appropriate agency

37. Resolving E-Verify Cases Employee has 8 Federal Government workdays from referral date to visit or call appropriate agency and resolve discrepancy Employee must be allowed to continue working as usual during the TNC resolution process Employers may not take any adverse action based on the TNC during the resolution process Employee should inform you when discrepancy is resolved Take appropriate action based on the verification result and resolve the case in E-Verify

38. Georgia Law: E-Verify Every public employer must E-Verify all newly hired employees All “contractors” of public employers must verify all new hires Employers performing “physical . . . Services within the state” Attorney General’s Opinion: Contractors consist of any employer performing work within the state of Georgia Public employers must obtain written confirmation that all contractors are registered for and actively using E-Verify

39. Social Security No-Match Letters: Back to Square One 2007: Department of Homeland Security (DHS) issues guidelines for confronting no-match letters from the Social Security Administration (SSA) 2008: no-match rules are enjoined by federal court and SSA ceases sending no-match letters 2009: Obama administration announces it will abandon proposed no-match rules 2010: Employers must determine what steps to take upon receipt of an SSA no-match letter

40. The ADAAA – What’s Next? Regulations interpreting the ADAAA Employer focus on reasonable accommodation process Increased scrutiny of internal leave policies by EEOC

41. Proposed ADAAA Regulations ADAAA became effective January 1, 2009 Changes applied to the statute, but not the interpreting regulations EEOC has proposed regulations

42. Highlights of Proposed ADAAA Regulations “Disability” - term is construed broadly, to maximum extent permitted by the ADA “Major life activities” – current list expanded, new category added for bodily functions

43. Highlights of Proposed ADAAA Regulations “Substantially limited” Focus on what “most people” are capable of doing, using common-sense notions Mitigating measures are not considered in determining substantial limitation

44. Highlights of Proposed ADAAA Regulations “Substantially limited” Impairment that is episodic or in remission (multiple sclerosis, epilepsy, bipolar disorder) is covered if substantially limiting when active Examples of specific impairments that may or may not meet “disability” definition included

45. Highlights of Proposed ADAAA Regulations “Regarded as” Employer now does not have to perceive impairment as substantially limiting (except when minor and lasting less than 6 months)

46. Reasonable Accommodations Definition of “disability” expanded More individuals will be considered disabled under new definition Focus will be on providing reasonable accommodation and interactive process Applies to employees and applicants

47. Interactive Process Communicate With Employee About Need for Accommodation Clear Understanding of Medical Condition Requiring Accommodation Involve Persons Who Know Job Evaluate Essential Job Functions + Job Description Evaluate Options for Accommodation Consider Current Medical Documentation Make Decision and Document It Communicate Decision To Employee

48. Documentation of Process and Decision Attempted Contact Communications and Dates Options Considered and Rejected and Reasons Legitimate Reasons To Deny Accommodation Request Not a legal disability requiring an accommodation Will not enable employee to perform the essential functions of the job Requires removal of an essential job function Failure to provide requested medical documentation Poses undue hardship Employee is Direct Threat to Self or Others

49. Internal Leave Policies Extended leave can be reasonable accommodation Many leave policies (FMLA, worker’s compensation) provide set leave period and permit termination if employee fails to return to work after leave

50. Internal Leave Policies Employers can’t set arbitrary leave period and automatically terminate employee when leave expires – this sidesteps interactive process Policies must allow for consideration of extended leave as accommodation if employee has covered disability under ADAAA FMLA, workers’ compensation, LTD, STD