1. Employment Law In The Obama Era: Strategies For Protecting Your Organization From Increased Legal Risks Presented by M. Kim Vance Baker Donelson Bearman Caldwell & Berkowitz, P.C. 615.726.5674 [email_address]

3. Just When You Thought You Had It All Figured Out . . .

4. “I don’t view the labor movement as part of the problem. To me, it’s part of the solution. We need to level the playing field . . . because we know that you cannot have a strong middle class without a strong labor movement.” President Obama, January 20, 2009

8. Big Labor’s No. 1 Priority For 2009 The Employee Free Choice Act

11. Presidential Veto Was Assured in 2008 Under the Bush Administration So there was no downside for Republicans and Democrats supported by businesses to vote for EFCA in 2008

13. “ The choice to organize should be left up to workers and workers alone. It should be their free choice.” “In this country, we believe that if the majority of workers in a company want a union, they should get a union. We can do this.” (Take Back America Conference, 6/19/07; Obama Senate Press Release, 6/20/07)

15. In 2009, Congressional Leaders Will Take Full Responsibility As President Obama Will Likely Sign Any EFCA Legislation That Is Passed

16. “ Responsibility” has a way of refocusing the issues.

17. Example: Democratic Senator Mark Pryor co-sponsored EFCA and voted for it in 2008.

19. Do Not Be Lulled Into Thinking EFCA Is Dead.

20. The AFL-CIO is aggressively marketing EFCA to the public, playing on economic concerns to build support from American workers. http://www.youtube.com/watch?v=_-MYQ38u1rU

26. AUTHORIZATION FOR REPRESENTATION I hereby authorize the _____________ Union to represent me for the purposes of collective bargaining. Print Name Date Signature Home Phone Home Address City State Zip Employer’s Name Address Hire Date Type Work Performed Department Hourly Rate Day Off Day Shift Full Time Night Shift Part Time Would you participate in an organizing committee?

27. Union Organizing: Current Law Paid union organizers collect signatures NLRB reviews signed cards and schedules election NLRB conducts secret-ballot elections NLRB counts ballots, majority rules Employer must recognize union as legal representative and bargain If majority vote for a union, then . . .

28. “Employee Free Choice Act” Paid union organizers collect signatures NLRB reviews signed cards and schedules election NLRB conducts secret-ballot elections NLRB counts ballots, majority rules Employer must recognize union as legal representative and bargain If majority vote for a union, then . . .

29. If EFCA is passed and enough employees sign union authorization cards . . . You could be a union-free workplace one day and a union workplace the next.

36. Damages and penalties are increased for employers under the current version of EFCA. The union is not subject to any of these provisions in the current draft of EFCA

41. New Wage Discrimination Legislation The Lilly Ledbetter Act

46. New COBRA Rules

47. What Other New Developments Could the Obama Administration Bring?

51. The 7 th Circuit Court of Appeals held that when an employer discovers information during an employee’s FMLA leave that would otherwise form the basis of a valid termination, the FMLA does not act as a bar to such adverse employment action.

53. What’s New With The EEOC?

54. EEOC Suggests That Health Risk Assessments Required By Employers For Health Insurance Eligibility Violate the ADA

55. Under the ADA, once employment begins, disability-related inquiries and medical examinations must be job-related and consistent with business necessity.

56. EEOC recently issued an opinion letter stating that health risk assessments that include disability-related inquiries and medical examinations are NOT job-related or consistent with business necessity.

57. To be job-related and consistent with business necessity, the employer must have a reasonable belief based on objective evidence that a medical condition will impair the employee’s ability to perform essential job functions or that the employee’s medical condition will impose a direct threat.

63. Summary judgment was vacated and the case was remanded for trial because the Court felt a reasonable jury might conclude that Gerving’s termination was motivated by discriminatory and retaliatory animus.

64. SO, WHAT TO DO THIS SUMMER?

67. What Questions Do You Have?