Join G&A Partners for this look back to 2009 employment law: As 2009 draws to a close we will take a look back at legislative developments that have taken place over the past year. As an employer, keeping up with the regulatory environment is imperative. Join us on December 15th for a special 60 minute briefing where you will learn about new employment regulations that may directly affect your business in 2010. The webinar will cover the following topics: Significant legislative developments including the Ledbetter Fair Pay Act, the ADA Amendments Act and the Genetic Information Non-discrimination Act (GINA). An overview of the latest decisions by the U.S. Supreme Court that impact equal employment opportunity in the workplace. Recent Federal District Court decisions in Texas regarding personnel practices. Learn more at www.gnapartners.com!

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 genetic
information in the list of protected categories
– Update posters
– Ensure any post-offer medical exams or FFD exams do
not 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 – it’s 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
– Don’t 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
– Employer’s plan to manage its workforce before and
during a pandemic

18. Miscellaneous
• Social Networking Inquiries –
the Houston’s 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