Hot Legal Topics in Human Resources 2008

1. Hot Legal Topics in Human Resources 2008 Jeff Nowak Franczek Sullivan P.C. 300 S. Wacker Dr. Suite 3400 Chicago, IL 60606 (312) 986-0300 jsn@franczek.comwww.franczek.com

2. Overview of “Hot” Topics • FMLA Update: New statutory provisions for military leave and proposed regulations which seek to clarify certain portions of the Act • Supreme Court update: “Me too” evidence • Employee Free Choice Act: Proposed amendments to current law would drastically affect the manner in which unions are formed • ADA Restoration Act: Proposed legislation would substantially broaden scope of disabled employees and their protections • EEO-1 report: New race/ethnicity reporting requirements 1

3. Entitlement: Up to 12 weeks of unpaid leave in a 12-month period for a qualified reason: Employee’s Serious Health Condition Care for a child, spouse or parent with SHC Birth of Child or Placement into Adoption/Foster Care Eligibility: Employee who has worked at least: 12 months for Employer 1,250 Hours in previous 12 month period Overview of the FMLA 2

4. What’s New? FMLA Expanded to Allow For TWO New Types of Leave Under Act • Call to Duty (“Exigency”) Leave: Up to 12 weeks of unpaid leave due to a “qualifying exigency” related to active duty status of the employee’s child, parent or spouse. 3

5. “Exigency” Leave • Not required by Law until Final Regulations are promulgated; however, DOL encourages employers to provide this leave immediately. • What does “exigency” mean? Doesn’t it suggest urgency or emergency? • The DOL wants feedback on this point. • Arguably some connection must be made between need for leave and service member’s call to duty. 4

6. Reasons for “Exigency” Leave • DOL suggests “exigency” likely means: • Making financial arrangements due to call; • Attending counseling because of call; • Attending ceremonies due to call; • Making farewell or arrival preparations; • Making arrangements for child care. 5

7. Service Member Family Leave • Service Member Family Leave: Up to 26 weeks of unpaid leave to care for a family member who suffers a serious injury or illness while on active duty. Who is a covered Service Member? Member of Armed Forces who is undergoing treatment, recuperation, therapy, or is on temporary disability retired list, because of a serious injury or illness. 6

8. Service Member Family Leave • Injury or illness: Service Member must be unfit to perform in the line of duty. • Employee must be a parent, child, spouse or “next of kin.” • Next of kin: Eligible employee must be nearest blood relative of the Service Member. DOL seeking comments on whether to adopt current definition used by Armed Forces. 7

9. Service Member Family Leave • 26 weeks, available only one time in a single 12-month period. • DOL soliciting comments regarding whether leave should be allowed more than once. • Leave may be taken intermittently. • How is “single year period” calculated—According to Employer’s FMLA Year or separate year? Date of injury? Could result in two FMLA 12-month periods. 8

10. Service Member Family Leave • Maximum leave allowed examples: • If employee takes all 26 weeks, still may take 12 weeks of FMLA leave following year. • If employee takes 5 weeks of “traditional” FMLA leave, still entitled to take up to 21 additional weeks to care for a covered Service Member. • If employee takes 16 weeks to care for Service Member first, cannot take “traditional” FMLA leave because employee already has exhausted this entitlement. 9

11. To Change or Not to Change • Do you revise Employee Handbook before Final Regs. are published? • Current regulations require FMLA Policy to be published in Handbook if employer has one • Can be an expensive proposition to make changes now only to make more changes later. • Basic revisions, direct employees to HR? 10

12. New Proposed FMLA Regulations

13. Generous employers—beware! • John first started working for The Sleep Well Hotel in 2007 and asked for a leave of absence after working for 10 months. Being the conscientious employer it is, Sleep Well immediately gave John time off. After two months, John remains on leave and has requested additional time off because his back “is just not getting any better.” • Is John eligible for FMLA leave? • Assuming John is eligible, can Sleep Well count the two first months against John’s FMLA leave allotment? 12

14. Serious Health Condition Under current regulations, among other things, SHC includes a illness, injury or physical or mental condition that involves: • A period of incapacity for more than 3 consecutive calendar days andtreatment 2 or more times by health care provider • Under proposed regulations: Above “treatment” by HCP must occur within 30 days of first day of incapacity unless “extenuating circumstances.” (Nice, but does this help?) 13

15. Serious Health Condition Also under proposed regulations: • If condition is “chronic,” DOL requesting comments regarding whether “periodic treatment” should be defined as at least two visits to HCP per year in connection with the medical condition. • Prenatal visits allowed as FMLA leave (including dad!) 14

16. Light Duty • Back to John at Sleep Well—during a new FMLA leave year, he mangled his hand while unclogging a washing machine. His doctor placed him on restricted duty, effectively prohibiting him from performing his current job. He’s asked for leave because of the pain, but Sleep Well instead offers him one-handed work: a job hailing cabs in front of the Hotel, which only requires use of his “non-mangled” hand. John jumps at the chance and starts his new job the following day. • Can Sleep Well count the time on the new job against his FMLA leave entitlement? 15

17. Employee Notice Unforeseeable Leave: • General Rule: Notice must be given “as soon as practicable,” which means 1-2 business days. • Proposed Regulations: Absent an emergency, employee must provide notice of the need for leave prior to start of shift. Proposed regulations presume that employee will provide information such as a statement that he/she is unable to do job, anticipated duration of absence, whether employee intends to visit a health care provider (e.g., can no longer state “I am sick.”). • Might this open the door to a regulation that requires employee to report to a specific individual? (Courts regularly are upholding employers’ reasonable call-in policies.) 16

18. Medical Certification Process • Proposed regulations would allow employers to obtain more detailed information, including: • HCP specialty • Diagnosis • More detail on frequency and duration of serious health condition • HCP statements certifying SHC as “lifetime” condition not good enough—must be more specific 17

19. Medical Certification Process • Proposed regulations allow communication directly from employer to HCP. • If authentication only—no consent required. • If clarification—employee consent required. • If consent not provided by employee, DOL suggests leave may be jeopardized. 18

20. Bonuses • Under proposed regulations, the DOL would allow employers to deny a “perfect attendance” award to an employee who takes FMLA leave (so long as it treats employees taking non-FMLA leave in an identical manner) 19

21. Practical Applications • Consider using a Request for FMLA Leave Form and Provide Employer Notices in a Timely Fashion • Monitor receipt of information from employees (request forms, medical certification) to ensure compliance with Act • Outline policies in detail in Employee Handbook and Follow them! • Train, train, train your supervisors! 20

22. Supreme Court Update: “Me too” Evidence

23. “My Employer Has Done This Same Thing to Other People…” Sprint/United Mgmt. v. Mendelsohn • Company-wide RIF: Sprint laid off 51 year old employee, Ellen Mendelsohn. Mendelsohn sued, claiming age discrimination • At trial, Mendelsohn attempted to present evidence from other Sprint employees who alleged they also were discriminated against because of age—”me too” testimony • Trial court refused to allow the testimony, since it did not involve the “same” supervisor 22

24. Appellate Court • Appellate Court overturned this ruling, finding that this evidence is relevant when a lawsuit alleges “company-wide” discrimination. Here, testimony was relevant because employees were fired around the same time and testimony was significant enough that its exclusion had denied Mendelsohn an opportunity to present her claim. 23

25. Supreme Court • Supreme Court’s Unanimous Ruling on whether “me too” evidence is admissible: IT DEPENDS! • There is no per se rule that “me too” evidence will either be admissible or inadmissible • Must conduct a “fact-intensive, context specific” inquiry to decide whether testimony is relevant to the issues at hand • No guidance as to admissibility of “me too” evidence 24

26. Federal Legislation

27. Employee Free Choice Act • Currently, most union organizing campaigns culminate in secret ballot election • For past 70 years, union must get 50% + 1 votes to win • This bill will fundamentally change this system 26

28. Employee Free Choice Act • The New Law: An election will no longer be required if the union can secure signed authorization cards from a majority of employees in a unit appropriate for bargaining. The union simply would be certified. 27

29. Employee Free Choice Act • Other changes: • Once the union is certified and parties start bargaining, if they fail to reach agreement within 90 days, either party may notify the Federal Mediation and Conciliation Service (FMCS) and request mediation • If mediation doesn’t work, the FMCS may refer the dispute to bindingarbitration. Decision binding on parties for 2 years. 28

30. Employee Free Choice Act • Other changes: • Act would require employers to pay triple back pay if the NLRB finds that employer discriminated against an employee for participating in union activities • Act provides for civil penalties of up to $20,000 per violation for employer violations of NLRA during critical periods 29

31. ADA Restoration Act • Sponsors say it intends to restore the original scope of the Americans with Disabilities Act in light of court decisions that have “unduly narrowed” the ADA’s coverage • In reality, the Act would: • Broaden the definition of “disability” by taking out the requirement that it “substantially limit a major life activity” • Shift the burden to employers to show that the employee is not a “qualified individual” 30

32. Changes to EEO-1 Form

33. Changes to EEO-1 Form • In 2007, the Equal Employment Opportunity Commission announced significant changes to the EEO-1 form, the principal reporting device for measuring an employer’s workforce by race, ethnicity and gender • Changes the manner in which the EEOC categorizes race and ethnicity, including a new category for “Two or more races” • Revisions to the former “Officials and Managers” job category, which now is split into two new categories based on responsibility 32

34. How Does This Affect You? • Revise your invitation to self-identify to correspond with the changes to the new EEO-1 form • Resurvey your workforce—sooner, rather than later • Reassign job titles to the new EEO-1 job categories • Update your Human Resources Information System • Beware of Affirmative Action obligations 33

35. Questions?

36. THANK YOU Jeff NowakFranczek Sullivan, P.C.300 South Wacker, Suite 3400Chicago, IL 60606 jsn@franczek.com312-986-0300