News & Media

Employment Law, Summer 2009
June 18, 2009

Reminder: The Federal Minimum Wage rate increased, effective July 24, 2009, to $7.25 per hour. Please keep in mind that many states have minimum wage statutes that require higher hourly wages than federal. Multi-state employers should ensure compliance with each state in which they have employees. Texas relies on the federal law to establish the minimum hourly wage.

Update on Employee Free Choice Act

The media has given much attention to the Employee Free Choice Act (EFCA) over the last couple of years. This proposed legislation has commonly been referred to as the “card check” bill and would allow unions to gain recognition from employers if more than 50% of the employees signed a petition for the workforce to be unionized, dispensing with the need for an election process, as the current law requires. However, the Senate has announced that this controversial aspect of the proposed legislation is being dropped after a group of Democratic Senators announced that they, along with their Republican colleagues, would not support the EFCA as initially proposed because the “card check” provision effectively eliminated worker’s rights to vote by secret ballot with regard to whether the workforce would be unionized. While this turn of events is good news for employers, you should realize that the issues still exist in this proposed legislation that could harm employers.

The proposed legislation also contains requirements, following the recognition of a unionized workforce, an employer and the union must reach an agreement on work conditions, including wages and benefits, within a set period of time or the parties would be subjected to mandatory, binding arbitration. While many of the specifics of such an arbitration have yet to be decided, the possibility of having such vital issues be decided by an arbitrator that will likely not be well-versed in the specifics of the employer’s industry, much less the employer’s particular business, could place the employer in a precarious position. This is a fundamental change in the course of collective bargaining under the current National Labor Relations Act.

Additionally, the proposed legislation continues to introduce steeper penalties, includes increased fines, against employers for violations of labor law. [Given that the current National Labor Relations Board is issuing opinions that are overturning or substantially altering opinions issued during the Bush Administration, employers need to stay mindful of the current requirements and rights employees have under the National Labor Relations Act.] Even if an employer does not have a unionized workforce, it may still be subject to numerous labor laws under the Act, including the anti-retaliation provisions.

While the legislation has yet to be passed, it is clear that new labor laws will be enacted. Additionally, unions are seeing more support in the current legislation and will surely become more active and more vocal in attempting to regain the positions they once held in the workforce.

The Changing Face of the ADA

Congress enacted the Americans with Disability Act Amendments Act (ADAAA) earlier this year in an effort to have disability discrimination claims focus on the discrimination issues, as opposed to whether the individual qualified as “disabled” under the American with Disability Act (ADA). Now, the Equal Employment Opportunity Commission (EEOC), charged with enforcing the ADA, has proposed rules that would identify specific medical conditions as presumptively qualifying as “disabilities” for the purposes of analyzing disability discrimination claims.

Under the law, an individual is “disabled” if he or she is substantially limited in one or more major life activities. The proposed regulations identify the following activities as “major life activities”: walking, seeing, hearing, speaking, standing, thinking, concentrating, bending, reading and communicating. The last three of this illustrative list are not specifically included in the ADAAA.

Additionally, the proposed regulations also provide that certain impairments “consistently meet the definition of disability.” These conditions include blindness, deafness, intellectual and developmental disabilities, partially or completely missing limbs, mobility impairments, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic syndrome and schizophrenia. Additionally, the proposed regulations identify additional impairments that may be considered disabilities: asthma, high-blood pressure, coronary artery disease, learning disabilities, back and leg impairments, carpal tunnel syndrome, hyperthyroidism and other psychiatric impairments, such as panic attacks, anxiety disorder and mild depression.

While the proposed legislation might make an employer wonder what conditions are not considered “disabilities,” it is better to focus on how to protect from disability discrimination claims. Remember to document disciplinary and performance issues. If a person’s medical condition prevents him or her from performing a specific aspect of the job, determine whether it is an essential function of the job. An employer would be wise to evaluate whether a reasonable accommodation can be made for the individual.