The recent Senate refusal to approve President Obama’s nomination of Craig Becker to the NLRB may also signal the end of efforts to enact the Employee Free Choice Act.

On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010 (the "Act"), provisions of which extend several assistance programs that are essential to the many persons currently unemployed in the U.S. In relevant part, the Act extended, for a second time, the program that subsidizes continued health care coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (and similar state continuation coverage laws) ("COBRA") for involuntarily terminated employees. That program, initially enacted as part of the American Recovery and Reinvestment Act of 2009 ("ARRA") and more fully described in a prior Cooley Alert, provides that certain employees whose employment is involuntarily terminated between September 1, 2008 and December 31, 2009 (resulting in COBRA continuation coverage eligibility during that period) can continue health coverage under COBRA by paying only 35% of the ordinary COBRA premiums for up to nine months. The insurer, the employer or the health plan pays the remaining 65%, which is recovered from the federal government through a credit against payroll tax liabilities or through direct reimbursement. In December 2009, that program was extended and expanded by the Department of Defense Appropriations Act, 2010 (the "Appropriations Act"), as described in a prior Cooley Alert.

On February 18, 2010, the Equal Employment Opportunity Commission (EEOC) published its Notice of Proposed Rulemaking, soliciting comments to its proposed amended regulations under the Age Discrimination of Employment Act (ADEA). The proposed regulations address the age discrimination defense related to "reasonable factors other than age" (RFOA), and can be reviewed at http://edocket.access.gpo.gov/2010/2010-3126.htm. If the proposed regulations are adopted as they are currently drafted, they will impact employers that use testing or formulas to determine eligibility for either termination or promotions of employees. Therefore, employers should carefully evaluate these proposed regulations and assess their potential impact on the employer's decision making process for hiring, promotions, terminations and reductions in force.

Provisions of the American Recovery and Reinvestment Act of 2009 require that companies adhere to prevailing wage standards for workers of construction projects receiving recovery funds under that Act. Those obligations remain, and we have noticed an uptick in enforcement actions from the Department of Labor.

With the continuing potential for an overhaul of the national health care system still a front-burner issue, employers still need to make sure that their current group plans comply with the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008. (MHPAEA) On February 2, 2010, interim final regulations were published implementing the MHPAEA. (See 75 Federal Register 5410.) The interim final regulations apply to group health plans and group health insurance issuers for plan years beginning on or after July 1, 2010.

On March 2, 2010, President Obama signed The Temporary Extension Act of 2010 (COBRA Extension Act), which extends by one month the COBRA premium reduction provisions of the American Recovery and Reinvestment Act of 2009 (Stimulus Act). You may recall that the Stimulus Act provides for certain COBRA premium reductions for qualified individuals, and this COBRA Extension Act introduces a nuance to catch one type of qualifying event:

According to a study by Microsoft, 70% of HR professionals have turned down job candidates because of the candidate’s online activity and reputation. On the flip side, approximately 60% of Internet users admit that their online behavior may affect their professional and personal lives. But only 15% of them actually think of the potentially negative impact when surfing the Web and posting content.

The U.S. Department of Labor's Employee Benefits Security Administration (EBSA) released the model Employer CHIP Notice on February 9, 2010. The Notice, as required under the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA), is intended to assist employers with notifying employees about possible opportunities for premium assistance and receiving medical coverage under an employer's group health benefit plan. For background on CHIPRA, please see Littler's April 2009 ASAP, Effective Date of New Special Enrollment Period Under CHIPRA Arrives.

The Temporary Extension Act of 2010 (“TEA 2010") was signed into law by President Barack Obama on March 2, 2010. TEA 2010 further extends by a month the COBRA premium subsidy program originally provided by the American Recovery and Reinvestment Act of 2009 ("ARRA”), and extended by the Department of Defense Appropriations Act, 2010 (“DOD Act”) through February 28, 2010.

I'm often asked for a sample social-media policy. I've posted before (see below) about online repositories for such policies and encourage readers to review as many such samples as possible before putting pen to paper and actually drafting your own. Below is a sample policy (a set of guidelines, actually) that is a good starting point for most organizations.

Jackson Lewis Partner Jane McFetridge presented a compelling case to the U.S. Senate Committee on Health, Education, Labor and Pensions that proposed pay equity legislation could further harm employers already reeling from the ongoing economic crisis. Ms. McFetridge, Managing Partner of the firm’s Chicago office, was one of six witnesses to offer testimony during the Committee’s March 11th hearing on the pending Paycheck Fairness Act (S. 182), a measure that would fundamentally change the Equal Pay Act of 1963 (“EPA”), exposing employers to far greater liability than they face now.

The Occupation Safety and Health Administration has released a list of about 15,000 workplaces with the highest numbers of injuries and illnesses in the nation for their industries, based on OSHA’s most recent survey. The agency stated it has sent a letter to these workplaces urging prompt attention to this issue, along with copies of their injury and illness data and a list of the most frequently cited OSHA standards for their specific industry.

The National Collegiate Athletic Association (NCAA) has announced the 65 college teams participating in its 2010 Men’s Division I Basketball Championship. This begins the nearly three-week single-elimination tournament that takes place mainly during March. It is appropriate now to consider the potential effect the basketball tournament may have on the workplace.

There’s a new kid on the block in the anti-discrimination arena, and her name is GINA. Employers should already be familiar with long-standing federal laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”), which prohibit employment decisions made on account of applicants’ and employees’ race, color, national original, religion, gender, age and disability. GINA, the Genetic Information Nondiscrimination Act of 2008, now extends these same protections to the “protected category” of genetic information.

Recently, the Federal Trade Commission (FTC) issued regulations affecting nearly every business ¯ at least every business with a workforce that has computer access (either on or off working time).

Most employers are required to fill out OSHA 300 Logs, which are used to classify work-related illness and injuries. Once an incident occurs, the employer must enter into the log the details of the illness/injury of how and what happened. Employers must keep the log (and summary) for each establishment or site where they have employees. Within seven days of learning the information about the incident, the employer must record any such work-related illness/injuries resulting in:

Long term care facilities should consider implementing a social media policy to establish clear guidelines for appropriate use, prevent and mitigate facility-damaging postings and clearly delineate patient information protected by Health Insurance Portability and Accountability Act (HIPAA). The policy, and the consequences of violating it, should also be clearly communicated to all employees. At a minimum, a good social media policy should include the following:

The Department of Defense (DoD) has implemented the “Franken Amendment,” prohibiting certain defense contractors that receive DoD Fiscal Year (FY) 2010 funds from mandating pre-dispute arbitration agreements as a condition of employment.

By a 62-36 vote, the U.S. Senate has approved a tax extender package (H.R. 4213, Tax Extenders Act of 2009) that contains an extension of tens of billions of dollars in tax breaks and other provisions aimed at creating jobs. The bill also provides extensions through December 31, 2010, of health insurance subsidies for unemployed workers under the Consolidated Omnibus Budget Reconciliation Act (COBRA) and emergency unemployment insurance benefits.

Tax compliance means revenues for the federal government — that is axiomatic. Revenue leakage through non-compliance has a multi-billion dollar effect on federal revenue. The Internal Revenue Service has become aggressive in setting its sights on several significant leaks in the system. These areas of concern include:

On April 1, 2010, the United States Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications for employment that will begin on October 1, 2010. The H-1B visa is a popular choice for companies planning to hire a foreign worker to fi ll a “professional” or “specialty occupation” position requiring a minimum of a bachelor’s degree or the equivalent.

The Pension Protection Act of 2006 (PPA) created a new statutory exemption from the prohibited transaction rules to expand the availability of investment advice to participants in 401(k)-type plans and individual retirement accounts, as long as certain safeguards and conditions were met. The Department of Labor, in the March 2, 2010 Federal Register, included a proposed rule to implement these provisions, thus making investment advice more accessible to many retirement plan participants.

On March 2, 2010, the Department of Homeland Security's Immigration and Customs Enforcement ("ICE") agency announced that it is issuing notices of inspection to review the hiring records of 180 businesses in Louisiana, Mississippi, Alabama, Arkansas, and Tennessee. The notices alert business owners that ICE will inspect their I-9 forms and other hiring records to determine whether the employer is in compliance with employment eligibility verification laws and regulations.

Newly-enacted legislation extends and expands the 65 percent federal COBRA subsidy under the American Recovery and Reinvestment Act (ARRA) in cases of involuntary termination of employment. A stopgap measure signed into law on March 2 by President Barack Obama extends the end of the eligibility period from February 28 to March 31, 2010, and makes other longer-lasting changes to the year-old subsidy arrangement. These changes include:

Social media applications, such as blogs, social networking, and video sharing, have surged in popularity over the past few years. They are now used by employees in almost every workplace. Forward-thinking companies around the world are embracing social networking and blogs for branding, client service and development, research, recruitment, and improving employee engagement, among other things.

The Immigration and Customs Enforcement (“ICE”), a division of the Department of Homeland Security, has announced that it is issuing notices of inspection to review the hiring records of 180 employers in Louisiana, Mississippi, Alabama, Arkansas, and Tennessee. According to the March 2 announcement, ICE will inspect and review hiring records to determine whether they comply with employment eligibility verification laws and regulations.

This article, authored by GJ Stillson MacDonnell, a shareholder in Littler's San Francisco office, discusses the Internal Revenue Service's National Research Program and the implications for companies. Included in the article are steps that employers can take to ensure preparedness for the potential assessments.

Last month, the IRS began its first comprehensive audit of employment tax issues in over 25 years. The IRS will audit 6000 companies in total over the next three years. The main issues to be examined in these audits are worker classification, executive compensation and taxable fringe benefits. (For a broad discussion of all of these issues, please see our prior alert "IRS Will Audit 6,000 Companies – Make Sure Your Employment Taxes Are in Order.") Because worker classification will garner more scrutiny than any other issue in these audits, this alert focuses solely on worker classification and the factors involved in making an accurate determination.

The Obama Administration appears to be planning to hike wages and benefits for workers nationwide by changing how the government awards contracts. The plan reportedly would favor private companies that offer employees better pay, health coverage, pensions and other benefits for contract opportunities. The government also will emphasize disqualifying from government contracting companies with labor, environmental and other violations.

In our December 2009 Labor & Employment E*Bulletin, we reported that U.S. Immigration and Customs Enforcement (“ICE”) was sending out Notices of Inspections (“NOIs”) to 1,000 employers in which ICE was compelling production of hiring and payroll records as part of its attempt to uncover and prosecute employers who fail to ensure their workforce is legal. If you did not receive a NOI in 2009, consider yourself lucky. But your fortune may not last long. On March 2, 2010, ICE announced it is issuing 180 NOIs to business owners in Louisiana, Mississippi, Alabama, Arkansas, and Tennessee.

Another federal appeals court has cleared a state's ability to require state government contractors to use the "E-Verify" system to electronically verify the employment eligibility of their workers. Various business interests challenged an Oklahoma law designed to reduce employment of unauthorized workers. The district court granted an injunction against all challenged aspects of the law. A divided appeals court reversed the district court concerning the "E-Verify" requirement for state government contractors but maintained the injunction against the other two provisions, finding them preempted by federal law. So far, all challenges against laws and executive orders requiring federal and state government contractors to use E-Verify have been unsuccessful. Other parts of the Oklahoma law were still enjoined, and the decision shows how complicated American law can be.

Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA) to encourage non-career service in the uniformed services, by minimizing the disadvantages to civilian employment which can result from such service.

On March 2, 2010, President Obama signed into law further amendments to the Consolidated Omnibus Budget Reconciliation Act (COBRA) subsidy provision of the American Recovery and Reinvestment Act (ARRA). These amendments not only expand the time that the subsidy is available, but also contain an extension of the subsidy to certain individuals whose reduced hours prior to their involuntary termination may have previously rendered them ineligible for the subsidy.

Hospitality and tourism employers should greet news of a favorable Ninth Circuit Court of Appeals decision with joy and a big sigh of relief. In Cumbie v. Woody Woo, Inc., No. 08-35718 (Feb. 23, 2010), the court confirmed that the Fair Labor Standards Act (FLSA) allows employers that do not take a tip credit against the federal minimum wage to pool tips and allow all hourly employees – not just those who have in-person interaction with guests – to receive a portion of the "tip pool." The opinion brings clarity (and much needed legal support) in an area where confusion as to the rule of law and expensive litigation had caused uncertainty and reticence.

Once again President Obama signed into law another extension to the COBRA subsidy originally created by the American Recovery and Reinvestment Act ("ARRA"). This new legislation, the Temporary Extension Act ("the Act") of 2010, extends the COBRA subsidy to those involuntarily terminated through March 31, 2010.

In the March 2, 2010 Federal Register the Department of Labor issued a final rule requiring multiemployer plans to provide copies of certain actuarial and financial documents regarding the plan upon request. The requested documents must be furnished within 30 days of the date a written request is made by a plan participant, beneficiary, employee representative or contributing employer. Failure to timely provide the requested documents may result in a civil penalty of up to $1,000 per day late.

On March 2, 2010, President Obama signed the Temporary Extension Act of 2010 (Act) that once again extended the eligibility period during which an involuntarily terminated individual could qualify for the COBRA subsidy originally created through the American Recovery and Reinvestment Act of 2009 (ARRA). The period during which you could qualify for the subsidy was originally set to expire on December 31, 2009, but was extended by the Defense Appropriations Act of 2010 until February 28, 2010. This period has again been extended by the Act to March 31, 2010.

For the past few weeks, the news media has been fixated on the Congressional investigation and hearings into purported defects in Toyota vehicles. But why is it such a big story? In reality, Congress has held hundreds of investigative hearings during the past few years on matters involving nearly every industry. This article will review – in very basic detail – Congress's power to conduct an investigative hearing, the limitations on those powers, and the practical effects of a Congressional investigation.

The IRS recently announced the results of two special audit programs it conducted. The first program involved audits of approximately 50 Form 5500 filings for defined contribution plans with asset values greater than $100,000 but less than $250,000. The second program audited 50 401(k) plans covering three to eight participants. Surprisingly (maybe not, given our experience), the most common error revealed by both projects was the failure to have the plan adequately bonded as required by ERISA section 412.

On March 3, 2010, U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Form I-9 Notices of Inspection to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. The Notices of Inspection require employers to allow ICE to inspect their I-9 forms to determine compliance with employment eligibility verification laws.

On March 2, 2010, the President signed the Temporary Extension Act of 2010, which, among other things, extends the 65% COBRA premium subsidy through March 31, 2010. The subsidy was originally provided through December 31, 2009, under the 2009 stimulus act (the American Recovery and Reinvestment Act or “ARRA”), and was previously extended through February 28, 2010, via the 2010 Department of Defense Appropriations Act. (For information regarding the original COBRA subsidy and the previous extension, please see our previous E*Bulletins from January 2010, March 2009, and February 2009).

On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010 (H.R. 4691), which amends the American Recovery and Reinvestment Act of 2009 (ARRA). Among other things, the Act extends eligibility for the 65%, 15-month COBRA premium subsidy to individuals who have been involuntarily terminated through March 31, 2010. Without the extension, employees laid off after February 28th would have been ineligible for the subsidy. The law is retroactive, so individuals who were involuntarily terminated on March 1st and 2nd are eligible for the subsidy.

There is an inherent tension between an employee's right to privacy and an employer's right to monitor an employee's conduct – especially where the employer believes that the conduct may harm its business or otherwise subject it to liability. This tension has only grown with the rapid expansion of social media and the larger audience with which an employee may share his grievances.

The last place you want to see your company listed is on the EEOC's website under "Press Releases." Hospitality employers continue to make this list with reports of high-dollar settlements of discrimination and harassment allegations.

On March 2, 2010, President Obama signed legislation that, among other things, extends the eligibility period for the COBRA subsidy provided in the American Recovery and Reinvestment Act (ARRA) for an additional 30 days. The Temporary Extension Act of 2010, H.R. 4691, extends the eligibility date for the COBRA subsidy from February 28, 2010 to March 31, 2010. The ARRA permits "assistance eligible individuals" to receive a 65% subsidy of the COBRA premiums they would be required to pay for any group health plan in which they participated at the time of their termination.

On April 1, 2010, the United States Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications for employment that will begin on October 1, 2010. The H-1B visa is a popular choice for companies who want to hire a foreign worker to fill a "professional" or "specialty occupation" position requiring a minimum of a bachelor's degree or the equivalent.

On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010 (H.R. 4691), which includes a stopgap extension from March 1, 2010 through March 31, 2010 of eligibility for the COBRA subsidies that were originally part of the American Recovery and Reinvestment Act of 2009 (“ARRA”).1 The legislation also clarifies Congress’ intent that an employee who loses coverage as a result of a reduction in hours and later incurs an involuntary termination of employment is eligible to elect subsidized COBRA coverage.

The conventional wisdom on the campuses of elite universities used to be that the nonprofit sector could never compete for top job seekers against big-name Wall Street players like Goldman Sachs or consulting firms like McKinsey that promised a meteoric career path.

Many employee groups have been lobbying the federal government to limit employers’ ability to require mandatory arbitration for resolution of employment disputes. Jackson Lewis also has joined the debate (see Jackson Lewis Partner Testifies in Favor of Arbitration Before Senate Judiciary Committee). Even as the future of pre-dispute arbitration agreements is considered in the Legislature, the United States Court of Appeals for the Second Circuit (which covers New York, Connecticut and Vermont), and district courts within the circuit, continue to uphold and interpret such agreements expansively.

Right on the heels of the COBRA subsidy and subsidy extension notices required as a result of the COBRA subsidy and its extension, here is yet another notice that employers with group health plans must send to their employees annually. On February 4, 2010, the Department of Labor issued a model notice for employers to use in drafting their annual Children’s Health Insurance Program Reauthorization Act (“CHIPRA”) notice. The model notice can be found at http://www.dol.gov/ebsa/chipmodelnotice.doc.

We all face uncertain economic times. As everyone knows, the federal government has passed the American Recovery & Reinvestment Act (ARRA) creating huge sources of funds to pay for various projects to "stimulate" the economy. Many companies, are now considering entering into contractual relationships with the federal government as contractors or subcontractors.

Burger King is not necessarily the only place you can get it "your way." We believe that it's possible to have a more productive and committed work force and no union at the same time. It definitely is not a case of "either . . . or." And you can do it without fighting and conflict. Indeed fighting and conflict are generally counterproductive to the effort to remain union free and often cause employers to lose their focus on the only objective that really counts – employees.

Some say that life is at its best when you are able to combine your work with something that you love. For those of us in the labor and employment world who love movies, what better way to celebrate movie awards season than by reviewing some of the best (and worst) films, all of which have labor and employment law themes? In light of the upcoming Academy Awards presentation this month, and with a tip of the hat to Oscar, here is our listing from the First Labor and Employment Awards. And the Lemmie goes to:

On February 26, the Department of Labor issued its long-awaited re-proposal of the Participant Investment Advice regulation that was issued last January, but which never went into effect, and which was eventually withdrawn on November 20, 2009. The new proposal is the result of the Department's reconsideration of a number of legal and policy issues relating to the prior regulation as well as various public comments that were received in response the Department's request.

An employer’s rule limiting employee solicitation on premises is unlawful because, although it contains an otherwise lawful “working time” restriction, it fails to explain the meaning of “working time,” a Regional Director of the National Labor Relations Board has alleged. The agency complaint, issued on behalf of the Board’s prosecutor, its General Counsel, may augur a change in the law by the NLRB.

Human Resources Professionals and in-house counsel not only must keep up with federal legislation and regulation, but also must remain abreast of state law developments. In 2009, many states enacted legislation relevant to and imposing obligations on private sector employers. These pertain to many areas of workplace law, including wage and hour compliance, independent contractor misclassification, privacy rights, equal employment opportunity (“EEO”) protections and leave/time off. Some examples of this newly enacted legislation are summarized below:

For many years, wage-discrimination claims brought under Title VII have not been prevalent. In fiscal 2009, only 1% of charges filed with the EEOC included an Equal Pay Act claim. In lawsuits, wage-discrimination claims are normally seen only as an appendage to termination claims. This may be because wage differentials often are small and do not create significant monetary damages. For example, a $1.00 an hour wage differential will create only $2000.00 in economic damages each year. That may now change.

By its unanimous decision in Hertz v. Friend,1 the U.S. Supreme Court has made it more likely that a company sued in state court in a state other than where its headquarters and center of direction, control, and coordination are located, will be able to remove the case from state to federal court in that jurisdiction.

Ahh, feedback. It’s a tricky pill to swallow, isn’t it? When performance-review time comes around and you’re making a list of all of the areas in which you want your employees to improve, maybe you should ask yourself a few questions first. Have you really done everything that you can to address problems as they arise? Or have you waited until formal reviews to bring up those little problems that have become bigger problems?

Get Ready to File H-1Bs; New Scrutiny of H-1B/L-1 Travelers on Reentry; Traveler Updates – Visa Waiver and Visa Applications; Compliance Corner – State E-Verify and I-9 Laws.

April 1, 2010 marks the date that the U.S. CIS will begin accepting H-1B petitions from employers filing on behalf of new employees. The class of new hires is generally comprised of recent university graduates and overseas workers . Currently, U.S. employers are reluctant to add to their work force given the slow rebound of our economy. However, major economic indicators are pointing toward growth and by the end of 2010 the impact of government incentives for employers will spur more hiring.

Signed into law on December 19, 2009, the Department of Defense Appropriations Act (the "Act") has potentially broad and sweeping ramifications for defense contractors. Buried within this $636 billion spending measure is a clause prohibiting contractors and subcontractors that receive over $1 million in funds from the Department of Defense ("DOD") and certain subcontractors from requiring their employees and independent contractors to enter into arbitration agreements mandating the arbitration of claims arising under Title VII of the Civil Rights Act of 1964 ("Title VII") and common law tort claims relating to sexual assault or harassment.

GINA, the Genetic Information Nondiscrimination Law of 2009, is the first new federal discrimination law in decades.

What do a nationally-ranked cyclist from South Africa, a research scientist from Tunisia who discovered a new gene, and an international business executive from Brazil have in common? You might say that they are all high achievers with a high level of skill in their respective fields; and that would certainly be true. But in the immigration context, you could also say that they may qualify for permanent residence in the United States in an elite group reserved for only those individuals who are considered to have extraordinary ability in their field, are teachers or researchers who are internationally recognized as outstanding, or are being transferred to the U.S. as an executive or manager of a multinational company.

On February 23, 2010 the U.S. Supreme Court handed down a ruling clarifying when employers can remove a lawsuit from state court and have it heard in the friendlier forum of federal court. The ruling deals with what is called "diversity jurisdiction" and is seen as highly favorable for employers, particularly large employers conducting business in multiple states, because it will make it easier for companies to know when they will likely be able to avoid the jurisdiction of plaintiff-friendly state courts.

Employers who anticipate needing H-1B visas for FY 2011 should be aware that early filing begins April 1, 2010. Although USCIS will not grant H-1B employment to begin until October 1, 2010 (the first day of FY 2011), it will accept applications up to six months prior to this date.

Although the Office of Federal Contract Compliance Programs stepped up enforcement of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act toward the end of the Bush administration, those efforts pale in comparison with the Obama administration’s stated agenda. Patricia Shiu, the new Assistant Secretary over the OFCCP, has announced increased focus on enforcement regarding veterans and disabled workers. Contending that the agency had done “literally nothing” for the past eight years in the area of veterans and disability, Shiu promises change.

The Equal Employment Opportunity Commission has been ordered to pay approximately $4.5 million of a defendant’s attorneys’ fees and expenses because, in the judge’s opinion, the agency’s actions in pursuing the multi-victim sexual harassment lawsuit were “unreasonable, contrary to the procedure outlined by Title VII and imposed an unnecessary burden upon [the defendant] and the court.”

In the last few years, the issue of worker classification has been the subject of numerous articles, such as a recent front page article on February 17, 2010, in the New York Times. Many of those articles claim that companies deliberately misclassify employees as independent contractors in order to save themselves money. These articles note that misclassification deprives workers of rights and benefits enjoyed by employees, while also depriving governments of much needed tax revenues. However, these articles are largely biased and inaccurate, containing incorrect statements about the laws relating to independent contractors, misrepresenting the motivations of employers, and ignoring the role that workers themselves sometimes play in how they are classified.

After months of moribundity, the Employee Free Choice Act (“EFCA”) is showing signs of life. Or at least alternative means of imposing some of the major changes included in EFCA, such as greatly decreasing the time of an election campaign and limiting employers’ ability to actively participate in union elections, are being considered. It all depends on the possible confirmation of Craig Becker, whose nomination to the NLRB has been stalled in the Senate but was recently voted out of committee on a party line vote.

In this attorney-authored article, Tanja L. Darrow, a shareholder in Littler's Los Angeles office, and Jim E. Hart, a shareholder in the Orange County office, advise companies on the many workforce-related issues stemming from the disaster in Haiti. This article is the first in a two-part series.

In this attorney-authored article, Tanja L. Darrow, a shareholder in Littler’s Los Angeles office, and Jim E. Hart, a shareholder in the Orange County office, advise companies on the many workforce-related issues stemming from the disaster in Haiti. This article is the second in a two-part series.

Becker nomination: dead, or only sleeping? Partial lockout OK – if not unlawfully motivated. Union activity, “journalistic integrity” don’t trump newspaper publisher’s First Amendment rights. Shift leaders are not supervisors, court says.

In an unpublished opinion, the 6th U.S. Circuit Court of Appeals has held that an employee’s appraisal score, given during a Reduction in Force (RIF) review, that was significantly lower than an annual performance review score given only 20 days earlier might support a jury’s finding that the true reason for the employee’s layoff was her requested FMLA leave.

As we have reported in previous client alerts (see links below), many employers, providers and insurers (including self-insured entities) are required by law to report to the Medicare Program any payments or settlements for liability insurance (including self-insurance), no-fault insurance, and workers' compensation benefits made to a Medicare beneficiary.

In the past two months, the territorial reach of U.K. employment legislation has come under scrutiny. Two judgments handed down from the Court of Appeal and the Employment Appeal Tribunal (EAT) have broadly interpreted the territorial reach of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (the "Fixed Term Regulations"), the Race Relations Act 1976 (RRA) and the Employment Equality (Age Regulations) 2006 (the "Age Regulations"). In the first case, the Court of Appeal held that the Fixed Term Regulations could be enforced by a U.K. national who worked overseas. More worryingly in the second case, the EAT held that the RRA and the Age Regulations could be enforced by foreign nationals who work partly in England. These two judgments potentially will have significant impact on U.S. companies operating in the U.K.

The Equal Employment Opportunity Commission has proposed redefining a key defense available to employers facing claims by employees under the Age Discrimination in Employment Act. The agency’s Notice of Proposed Rulemaking, released February 18, 2010, would amend its “Differentiations Based on Reasonable Factors Other than Age” regulation, 29 C.F.R. § 1625.7, by identifying new criteria for establishing the “reasonable factor other than age” defense in age discrimination cases.

Electronic monitoring is a very hot topic in employment law these days. But what about other types of electronic monitoring by employers? A case filed in the U.S. District Court for the Eastern District of Pennsylvania alleges a much more unusual sort of electronic monitoring. The suit alleges that Lower Marion School District distributed over 1,800 laptops to its students. So far, so good.

This two-part article analyzes the new military family leave provisions of the Family and Medical Leave Act (“FMLA”), as amended in 2008 and again in 2009. The first installment explored the “Active Duty Family Leave” for employees who experience a “qualifying exigency” arising out of the fact that a family member has been called to active duty. This second installment analyzes the leave available for an employee to care for a military family member who is injured in the line of duty and, specifically, how this “Injured Service Member Leave” compares with the traditional FMLA leave to care for a family member with a serious health condition.

Could a simple five-minute interaction with another person dramatically increase your weekly productivity? In some employment environments, the answer is yes, according to Wharton management professor Adam Grant. Grant has devoted significant chunks of his professional career to examining what motivates workers in settings that range from call centers and mail-order pharmacies to swimming pool lifeguard squads. In all these situations, Grant says, employees who know how their work has a meaningful, positive impact on others are not just happier than those who don't; they are vastly more productive, too.

Earlier this year the IRS issued Notice 2010-6, which provides formal guidance for correction of Internal Revenue Code Section 409A plan document errors. Generally, the earlier that the plan document error is corrected under the terms of the Notice, the more likely that adverse Section 409A tax consequences can be mitigated or avoided altogether. In addition, the Notice provides transition relief for certain Section 409A plan document errors that are corrected by December 31, 2010. For many Section 409A plan document errors, the guidance under the Notice effectively extends to December 31, 2010 the original Section 409A documentary compliance deadline of December 31, 2008 mentioned in our prior Cooley Alert. As a result, employers should take steps now to review their compensation arrangements that are subject to Section 409A for compliance with its documentary requirements and take any necessary corrective actions. Adverse tax consequences under Section 409A may include premature taxation, an additional 20% federal income tax (and possibly an additional state tax equivalent, as is the case in California), and an interest-charge tax. As mentioned in our prior Cooley Alert, IRS audits that cover compliance with Section 409A seem a near term certainty.

The American Recovery and Reinvestment Act of 2009 is commonly known for its provisions designed to stimulate a flagging economy. However, the Act's Title XIII (known as the "Health Information Technology for Economic and Clinical Health Act" or "HITECH Act") has another purpose—to impose obligations under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") directly on business associates (as defined under HIPAA) with respect to the way they handle certain health-related information in connection with an employer's health plan and to impose civil or criminal penalties for any violations of those obligations. This Alert discusses how business associates are affected by the HITECH Act and what employers should do to monitor the compliance of business associates under the HITECH Act.

Employers may order employees to take seasonal and H1N1 vaccines, the nation’s principal workplace safety and health agency has stated. OSHA offered this opinion in a letter of interpretation, published recently on the agency’s website.

If you are still getting up to speed on the new military provisions in the Family and Medical Leave Act (either the 2008 amendments, the January 2009 regulations, or the October 2009 amendments to the 2008 amendments), don’t feel too bad. The U.S. Department of Labor, which enforces the FMLA, is also behind the curve.

The February 2010 issue of Law Practice Today, the webzine published by the ABA's Law Practice Management section, is now available and can be read in its entirety at the Law Practice Management section's website. I was the issue editor for this edition, which focuses on the Human Resources side of management. The articles are great and offer lessons that apply to all industries.

As noted by Michael Fox in a recent post on his Employer's Lawyer blog,, an OFCCP Administrative Law Judge (ALJ) just released a 66-page decision in a case that began with an audit notice in 1993. The case was bogged down in large part due to the bank’s contention that it was not selected for audit in accordance with its constitutional right under the Fourth Amendment to be free from unreasonable searches and seizures. That claim was ultimately unsuccessful. As a result of the delay, though, the bank found itself litigating claims about hiring practices dating back to 1993. Not surprisingly, the recollections of key witnesses such as the recruiters were foggy on some points.

New regulations are giving employers their first glimpse of the mental health and substance abuse benefit changes that may be needed by 2011 to ensure that their health plans do not violate the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (“New Mental Health Parity Act”).

In the midst of finding childcare for children unexpectedly home from school, coping with business disruption, power outages, and dangerous streets, we often forget that winter storms, like hurricanes, pose special workplace hazards especially when employers begin to clean up and restore business. Many fatalities, injuries, and OSHA citations occur as employees perform non-routine tasks after the storm eases.

The federal government recently enacted new guidelines that can impose liability on employers for the online conduct of their employees. Under Federal Trade Commission guidelines that took effect Dec. 1, employers could face enforcement actions should their employees use social media to comment on their company's products or services in inappropriate ways, even if the employer did not authorize the comments.

Employers' use of independent contractors instead of traditional employees has been on a steady incline over the past 20 years. Some employers feel that they can save money by using independent contractors instead of full-time employees. The contractors themselves may value the autonomy and economic perks that the status provides. Also, the specific skills and knowledge that independent contractors can bring to a short-term project can be critical and, therefore, worth a premium but not sustainable in the long term. But the use of independent contractors is not as perfect as these mutually beneficial points may seem.

As anticipated, 2009 was a year filled with change for employers and 2010 may hold more of the same. Our article A Look Back at 2009 and What 2010 May Hold for Employers discusses some of 2009's more significant labor and employment law developments and what employers may have to look forward to in 2010. Please click on the article title, above, to access the article on our web site.

With a continued focus on supporting middle-class families in this time of economic crisis, the Obama Administration has released details of its proposed budget for the fiscal year 2011. While job creation may be the first thing that comes to mind when determining how to strengthen the economic security of American families, the proposed budget contains significant investments in targeting the misclassification of independent contractors. It reads:

The COBRA premium subsidy provisions of the federal stimulus package enacted in 2009 (American Recovery and Reinvestment Act of 2009 “ARRA”) have been extended by the Department of Defense Appropriations Act, 2010, which was signed into law on December 19, 2009 (the “Act”). The Act extended the period to qualify for the COBRA premium reduction until February 28, 2010, and the maximum period for receiving the subsidy an additional six months (from nine to 15 months).

In Private Letter Ruling 2010-05014, the Internal Revenue Service (IRS) held that an employer could exclude the value of employer-provided clothing and related accessories from its employees' wages as a de minimis fringe benefit. This Ruling provides some clarity on when employer-provided clothing can be excluded from an employee's wages, but employers should be careful to limit this Ruling's holding to its somewhat particular facts.

Delaware Governor Jack Markell declared a state of emergency and instituted a driving ban limiting driving to emergency vehicles only as a result of the record-setting snow storms that hit the Northeast this week. While State government strongly urged employers to consider their employees’ safety and close their businesses for the duration of the state of emergency, nothing prohibited employers from opening for operation during the storm.

On February 4, 2009, the Children’s Health Insurance Program Reauthorization Act of 2009 (“CHIPRA”) was signed into law. In order to comply with CHIPRA, employers who offer group health plans must provide notice to their employees of their rights under CHIPRA. On February 4, 2010, the Department of Labor issued a model CHIPRA notice, which can be located on their website - http://www.dol.gov/ebsa/chipmodelnotice.doc. This notice will need to be tailored for your particular plan(s) and must be distributed by the later of the first day of the first plan year beginning after February 4, 2010 or May 1, 2010 (January 1, 2011 for calendar year plans).

Covered employers must post a summary of job-related injuries and illnesses from 2009 at their place of business by February 1. In particular, the California Department of Industrial Relations (DIR) requires the Cal/OSHA Log 300A summary be displayed from February 1 to April 30 for employee review.

Thanks to President Obama's budget proposal for the 2011 fiscal year, released on February 1, 2010, the Department of Labor may be one of the few employers to soon experience rapid growth. The President's proposal would add 100 new enforcement personnel and increase the agency's overall budget by $25 million. The increase is part of a larger plan for the Treasury and Labor Departments to join efforts in addressing the misclassification of workers as independent contractors – something the President views to be a cause of the $350 billion tax gap, which is the sum of noncompliance with tax law. He argues that cracking down on misclassifications over the next ten years will increase federal coffers by $7 billion over the same period.

On February 9, 2010 the Senate failed to invoke cloture on Craig Becker's nomination to the National Labor Relations Board (NLRB) by a vote of 52-33. There is a possibility that President Obama could make a recess appointment for Becker when the Senate goes into recess on President's Day. If that were to happen, Becker's appointment to the Board would last until the end of 2011.

OSHA has announced a new proposed Injury and Illness Recordkeeping Regulation, §1904.12, which would add a separate column on the OSHA 300 Log for the recording of musculoskeletal disorders (MSDs). The proposed regulation would be virtually identical to the 2001 final Recordkeeping Regulation on MSDs which was deleted before it went into effect.

I talk a lot about how Human Resource professionals can use social media for a variety of workplace initiatives, ranging from recruiting, to engagement, to internal communications. For the uninitiated, though, the topic "social media" may have little real resonance. If you're an HR pro new to social media, there are three key types of social media that you need to understand at a bare minimum. Here's a primer on each.

In Pension Committee of the University of Montreal Pension Plan et al. v. Banc of America Securities, LLC et al., No. 05 Civ. 9016, 2010 WL 184312 (S.D.N.Y., Jan. 15, 2010), Judge Shira A. Scheindlin revisits her highly infl uential and often-cited Zubulake decisions.1 Although the case did not involve “any examples of litigants purposefully destroying evidence,” the failure to timely institute written litigation holds constituted gross negligence. That failure, coupled with plaintiffs’ “careless and indifferent” preservation and collections efforts, warranted the imposition of severe sanctions. The Pension Committee decision reinforces the essential need for organizations to have a well-planned, robust records management program and corresponding eDiscovery response plan.

With the recent release by the Equal Employment Opportunity Commission (EEOC) of its charge statistics for fiscal year 2009, the realization emerged for many that an increased number of employment-related claims may be more than a blip on the radar screen. Indeed, 2009 saw the second highest level of workplace discrimination complaints ever filed with the EEOC – 93,277.1 This number is up 12.7% from 2007 and is just slightly lower than the record amount filed in 2008 (95,402).

In today’s culture of pink ribbons, yellow bracelets, and fundraising walks, it is not hard to imagine the multitude of ways an employer might learn about the genetic test or manifestation of a disease by a family member. Loved ones often become involved with organizations specific to the disease of their family member, and even sometimes starting their own. The employee’s membership in or leadership role in such organizations might well be reflected on their resume or application. Such relationship is likely to be disclosed on an employee’s Facebook, Twitter, or MySpace page. A quick Google search on an application, now typically performed in the most rudimentary background check, would reveal this information.

With the weather forecast predicting record-setting snowfall in the Northeast, many employers are preparing to close operations again tomorrow. But how to handle snow days when it comes to calculating payroll? Here's the run-down.

As previously discussed in our February 17, 2009 Legal Alert, President Obama signed into law the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA). Among other things, CHIPRA requires that employers inform each employee of potential opportunities currently available in the State in which the employee resides for group health plan premium assistance under Medicaid and the Children's Health Insurance Program (CHIP). These notices are referred to as Employer CHIP Notices.

The Department of Labor Wage and Hour Division has issued a Field Assistance Bulletin that provides guidance that employers can use to determine when they can expect to be subject to child labor civil money penalties under the Fair Labor Standards Act (FLSA) and how much they can expect to pay. The Bulletin also addresses the Child Labor Enhanced Penalty Program (CLEPP) created by the Wage and Hour division to incorporate changes made by the Genetic Information Nondiscrimination Act (GINA) to the FLSA's child labor penalty provisions.

The filing season for the Fiscal Year 2011 H-1B quota is at hand. Despite the sluggish economy, analysts are predicting positive growth in employment during the course of the year. Thousands of new H-1B cases will be filed on April 1, 2010. Employers need to project their labor needs for the coming year and position themselves to take advantage of the new H-1B quota.

The Children’s Health Insurance Program Reauthorization Act of 2009 (“CHIPRA”) imposes certain notice requirements on employers maintaining group health plans. Under CHIPRA, beginning in April 2009, employers sponsoring group health plans must provide notice of the new special enrollment rights CHIPRA affords.

The EEOC published a press release a few days ago about the distribution of a $6.2 million settlement it had reached with Sears, Roebuck & Co. The lawsuit had been filed in November 2004 in federal court in Chicago. The consent decree was entered and publicized on September 29, 2009 as the largest ADA settlement in a single case in EEOC history.

On February 4, 2010, the Senate Health, Education, Labor and Pensions Committee voted 13-10 to approve the nomination of Craig Becker to be a member of the National Labor Relations Board. It was a party line vote, with all 10 Republicans on the committee voting against Becker's nomination. Becker must next be confirmed by the entire Senate. With Senator Scott Brown already sworn in as the 41st Republican, there is a real possibility that Becker's confirmation could be blocked by a filibuster. If that were to happen, Senate Majority Leader Harry Reid said the Obama Administration may use a recess appointment to get Becker on the NLRB, which would not require Senate approval.

Although more than 40 different labor and employment law bills were proposed in 2009, Congress acted on very few of them. In 2010, the story could be quite different - especially if Congress can pass health care reform legislation early in the year. At least seven areas of labor and employment law have great potential to be "hot" this year.

In Part I of this series, I discussed the Genetic Information Nondiscrimination Act in the employment-law context. In this post, I'll cover how GINA applies in the caregiver context. In Part III, I'll address how GINA may mean trouble for employers who search out information about employees and applicants online.

The Genetic Information Nondiscrimination Act (GINA), went into effect in November 2009. Title II of the Act, which applies to employers, amends Title VII to prohibit employment discrimination on the basis of genetic information. GINA was intended to address a very specific concern--specifically, that the advancement of genetic science would lead to employment (and insurance) discrimination based on an individual’s potential to contract a certain disease as reflected in genetic markers. But GINA's language has a far broader reach, which may well become the newest and most useful weapon in the work-family arsenal.

Less than one-third of U.S. employers have a social-media policy, according to Manpower in its recent study, Social Networks vs. Management? Harness the Power of Social Media. Not that this is a surprise. Frankly, I’m more surprised when an employer actually does have a social-media policy in place. The recently published regulations of the FTC regarding employee endorsements and social-media sites may prompt some employers to get working on that policy. And, if that’s the case or if you’re considering a social-media policy for any other reason, here are some tips to help you on your way.

Many Toyota dealerships have announced that they will remain open 24 hours a day in order to fix the accelerator problem that has prompted the recent recall of several models. This unprecedented step is likely to raise a number of employment law issues for the affected dealerships, and may serve as a model for any other companies that may face similar issues in the future.

In talking with dealerships around the country, it looks as if there is light approaching the end of the tunnel. Some are actually starting to hire new employees. So this probably is a good time to take a look at the way your dealership hires employees and to determine if the process is accomplishing two critical tasks: 1) identifying the best possible candidate for a position who will make the dealership money; and 2) screening out "high risk", problem candidates who are likely to cost the dealership money.

During the last decade there was an explosion of overtime pay litigation against employers. Attacks on businesses in various industries – including fast-food establishments, banks, retail stores, pharmaceutical sales companies and service providers – awakened employers to the fact that the Fair Labor Standards Act (FLSA), which governs overtime pay, has not kept up with the way businesses operate today. Overtime claims have cost employers billions of dollars in damages during the past several years.

The Louisiana Army National Guard’s 3,000-member 256th Infantry Brigade Combat Team is preparing for a 12-month deployment to Iraq. On January 6, 2010, the Louisiana National Guard held a deployment ceremony in White Castle, Louisiana, for its 256th Brigade Special Troops Battalion. The ceremony was reportedly attended by hundreds of family members and friends—and those family members were likely eligible for leave under the Family and Medical Leave Act’s new military leave provisions for their attendance at the deployment ceremony. The Battalion will train in Mississippi for six to eight weeks, after which they will have four days of leave to return home before flying to Iraq. Their family members may also be entitled to FMLA leave for that four-day leave period. In light of the increased troop deployments to Afghanistan and Iraq, it is critical for employers to understand the new military leave provisions of the FMLA.

In a move sure to be viewed by some as a prelude to a new ergonomics rulemaking, OSHA has proposed adding a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs). (The initial 2001 recordkeeping final rule had included an MSD column, but OSHA later deleted that column before the provision ever became effective.) The rule also proposes the same definition of “MSDs” that OSHA had included in the initial 2001 final rule.

For those looking for work these days, job security may be a stubbornly elusive goal.

Class and collective action lawsuits asserting wage and hour claims continue to outpace all other types of employment litigation in the federal courts. The volume of such cases increases year after year, and there is nothing to suggest that the trend will reverse itself anytime soon. The plaintiffs' bar that specializes in this area of employment law continues to grow, and with each passing year gets more expert, creative and aggressive in pursuing class and collective action lawsuits under federal and state wage and hour laws.

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (“FMCSA”) has published regulatory guidance prohibiting texting while driving by commercial motor vehicle drivers. Published in the Federal Register on January 27, 2010 (see Federal Register /Vol. 75, No. 17/Wednesday, January 27, 2010), the guidance interprets 49 C.F.R. § 390.17, “Additional equipment and accessories.” That regulation provides that “[N]othing in this subchapter shall be construed to prohibit the use of additional equipment and accessories, . . . provided such equipment and accessories do not decrease the safety of operation of the commercial motor vehicles on which they are used.”

On December 19, 2009, President Obama signed the 2010 Defense Appropriations Bill, which included an extension of the 65% COBRA Subsidy provision originally enacted last February in the Stimulus Bill. The new law affects the COBRA subsidy as follows:

The Form 5500 is changing! Forms in the 5500 series (including the Form 5500 Annual Return/Report of Employee Benefit Plan and Form 5500-SF Short Form Annual Return Report of Small Employee Benefit Plan) are used annually to report information concerning a welfare benefit or retirement plan's funding, size, operations and other characteristics.

Section 409A of the Internal Revenue Code generally provides that nonqualified deferred compensation plans must comply with certain complex rules regarding the timing of deferrals and distributions. Compliance must be in both form and operation. Failure to abide by section 409A's requirements will result in all amounts deferred under the plan for the current year and all previous years becoming immediately taxable to the employee, plus an additional 20% excise tax and interest penalty. As a result, a failure to comply with the requirements of section 409A can have severe adverse tax consequences to the executive.

Employers and employees alike often struggle with how to communicate with or assist employees with disabilities.

On the first anniversary of the Lilly Ledbetter Fair Pay Act, Congresswoman Rosa DeLauro and Senator Chris Dodd celebrated by calling for Congressional action on the Paycheck Fairness Act (PFA) (S 182).

President Obama’s administration will seek more funding for the U.S. Department of Labor (DOL), including more funds to enforce wage and hour laws and pursue employers who misclassify employees as independent contractors. In a press release yesterday, Secretary of Labor Hilda L. Solis outlined the president's fiscal year (FY) 2011 budget request for the DOL, which is built around the vision of "good jobs for everyone."

President Obama’s Chief of Staff has caused quite a stir. Reportedly, in a fit of frustration, Rahm Emanuel called participants in a White House meeting “ f---ing retarded.” Sarah Palin, who has a son with Down’s Syndrome, quickly spoke out about the inappropriate nature of the comment on Facebook. The statement drew additional attention because this is the second time that a member of the Obama Administration has had to apologize for making an insensitive comment regarding the mentally disabled.

On January 29, 2010, OSHA published a proposed rule to revise its 300 Log of Work-Related Injuries and Illnesses. The proposed revision would restore a column dedicated to tracking musculoskeletal disorders (MSDs). OSHA announced that it will hold a public meeting on the proposal on March 9, 2010. If finalized, the new regulation would take effect beginning January 1, 2011. What remains unknown at this point is what OSHA will do with the new data, and whether it would – or could or should – promulgate a new ergonomics standard.

Three months ago, we asked: "Where �ŒO Where are the Regulations for the Mental Health Parity Act?" (Legal Alert, 10/9/2009) On January 29, 2010, the Departments of Health and Human Services, Labor, and Treasury finally heard our call.

Denver partner Cole Wist and Denver associate Hugh Thatcher co-authored an article, "Workplace Violence: An American Secret," which was published in the Winter 2010 edition of the American Bar Association's Labor and Employment Law newsletter.

Most employers are required to maintain the Occupational Safety and Health Administration's 300 Logs for workplace injuries and illnesses and post their 2009 annual summary by February 1, 2010. Employers must utilize the annual summary form (form 300A) when complying with the posting requirements. The form is available for downloading from the OSHA website.

It will be no surprise if employees approach this year's office Super Bowl or NCAA Tournament pools with a little more trepidation. Last month, Fidelity Investments made national headlines when it fired four employees for participating in a fantasy football league. For those unfamiliar with it, fantasy football is a game in which participants are organized in a competitive league, earning "fantasy points" by using the statistics of real professional football players.

The number of H-1B audits will continue to rise in 2010, so H-1B employers should be prepared for unannounced site visits from U.S. Citizenship and Immigration Services (USCIS) to confirm the information submitted in H-1B filings. The USCIS Office of Fraud Detection and National Security (FDNS) has recently commenced an audit of the H-1B program.

Over the past year, federal and state governmental agencies have signaled their intent to more seriously investigate the misclassification of employees as independent contractors. For various reasons, employers often find it desirable to classify certain workers as independent contractors, but state and federal agencies often look at classification decisions very closely.

What are the legal reasons that an employer needs a social-media policy? That’s a question that I get a lot when discussing social media with clients and others. And, maybe more often, “Are there any reasons that I need a social-media policy?” This is a complicated question, really. And there are lots of possible answers. But there’s at least one new legal reason for employers to stop procrastinating, get the idea out of committee, and get to work on such a policy.

What Haiti’s Earthquake Means to U.S. Immigration – TPS and More; 2010 H-1Bs Gone: Time to Start Planning for 2011; Compliance Corner: USCIS Tracking E-Verify Participant Data; State E-Verify and I-9 Laws - 2010 Updates.

On December 21, 2009, President Obama signed legislation extending the COBRA premium subsidy originally established under the American Recovery and Reinvestment Act of 2009 ("ARRA"). Under the ARRA, only individuals who were involuntarily terminated and who lost group health insurance coverage before December 31, 2009 were eligible to receive the subsidy. Moreover, the subsidy was only available for nine months of coverage.

The U.S. Supreme Court has agreed to review the Seventh Circuit's decision in New Process Steel, L.P. v. NLRB to determine whether the National Labor Relations Board (NLRB) has authority to decide cases with only two sitting members.

The U.S. Department of Labor (DOL) has stated that it plans to review regulations implementing the new military family leave amendments to the Family and Medical Leave Act that were included in the National Defense Authorization Act for FY 2008 (NDAA). The agency will also review other provisions of the FMLA regulations that were revised and implemented in January 2009. This statement was included in the DOL's published Regulatory Plan, which, according to the Department, "highlights the most noteworthy and significant regulatory projects that will be undertaken by its regulatory agencies."

Use of the Electronic System for Travel Authorization (ESTA) is now mandatory for all travelers entering the U.S. on the Visa Waiver Program. ESTA applies only to persons seeking to enter the U.S. as visitors on the Visa Waiver Program. U.S. citizens and Legal Permanent Residents (“green card” holders) are not subject to ESTA travel requirements.

Although it has been more than three years since the Federal Rules of Civil Procedure were amended to codify parties' obligations to preserve and produce potentially relevant electronically stored information (ESI), a recent survey conducted by Kroll Ontrack reflects that only 46% of U.S. corporations possess an ESI readiness strategy. Meanwhile, a review of recent judicial decisions on requests for discovery sanctions reflects a growing impatience by courts for a lack of such a readiness strategy and resulting failures to competently preserve and produce potentially relevant electronically stored information.

An employee has access to your company's computer though employee-specific log-in information, and he has a company email address. The employee accesses the computer and emails client lists, financial statements, and contracts from his company email to his personal email. He also uploads "scrubware," deleting all emails and files on his desktop. He quits Friday afternoon and begins working for your competitor on Monday morning.

Where is the line between an employee's right to privacy and an employer's right to monitor its employees while on company time or using company equipment or networks? How is an employer charged with preventing harassment supposed to effectively monitor the large volume of communications between its employees? While the law has yet to establish bright-line answers to these questions, recent legal developments provide some guidance.

The Federal Trade Commission (FTC) recently published guidelines regarding endorsements and testimonials in advertising effective on December 1, 2009. These guidelines have left many employers wondering if they will be the subject of an FTC enforcement action for their employees' statements. In "Guides Concerning the Use of Endorsements and Testimonials in Advertising" (16 CFR Part 255), the FTC asserts that employers will be held responsible for "endorsement" statements made by their employees regarding the employer's products and services, even if those statements are made without the employer's permission or knowledge.

The numbers are staggering. According to a recent report published by the Pew Internet & American Life Project, the percentage of adults who use social networking sites such as MySpace and Facebook reached 35% in 2008, up from only 8% in 2005.i For employers, these numbers suggest that a large portion of your workforce is actively participating in online social networking communities. This also means that if employers' Internet policies do not cover the appropriate use of social networking and blogging, they are leaving themselves exposed to abuse, embarrassment, and potential liability. But what does this mean for health care providers, for which the social networking revolution offers many advantages and even scarier risks in terms of private patient data being disseminated across the worldwide web?

On December 16, 2009, in response to the recent demand by investors for increased transparency and corporate accountability, the Securities and Exchange Commission approved new rules requiring enhanced proxy disclosure.

Congress gave recession weary families some good news just before its December recess. In a move designed to help families retain their employer sponsored insurance, Congress extended last year’s COBRA subsidy. The news couldn’t have come at a better time for families looking at the looming December 31 cutoff for the subsidy.

In Domeny v. Commissioner, the U.S. Tax Court held that an employee's settlement payment for allegations that work-related stress exacerbated a physical condition was excludable from taxable income under Internal Revenue Code (IRC) section 104(a)(2).2

The Department of Labor has issued several documents relating to Congress’ extension of the COBRA sudsidy. Those documents include a summary of COBRA continuation rights, a Fact Sheet about the subsidy as modified by the recent legislation, and a model COBRA Continuation Coverage Election Notice, which includes a discussion of the subsidy extension.

As part of the 2010 Department of Defense appropriations bill, Congress did two things relating to COBRA. First, it extended the initial eligibility period for subsidized federal COBRA benefits to terminations and layoffs through February 28th (the original deadline was December 31st). Second, it extended the subsidy period from 9 months to 15 months.

The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has announced three upcoming Town Hall "Listening Sessions," which will provide an opportunity for stakeholders to make suggestions to enhance the agency's existing regulations and improve compliance.

It’s that time of year again—time to make (and hopefully keep) your New Year’s resolutions. New Year’s resolutions do not have to relate solely to dieting and exercise, however. Now is a great time for employers to think proactively about their goals and aspirations for the coming year. When thinking about New Year’s resolutions for the workplace, a hot topic and cause for concern is the growing use of social media in the workplace. In 2010 your organization should be developing and implementing workplace best practices regarding use of social media and other emerging technologies. Employers should start this process by asking: How will our organization manage the risks associated with the use of social media and at the same time gain the benefits that this media form provides?

The Family and Medical Leave Act of 1993 (FMLA) continues to evolve under the new administration as with the last. As our readers will recall, President Bush signed the Fiscal Year 2008 National Defense Authorization Act, effective January 28, 2008, which amended the FMLA to include “injured servicemember” and “qualifying exigency” leaves for eligible employees. The U.S. Department of Labor issued new regulations effective as of January 16, 2009, which clarified the parameters of “injured servicemember” and “qualifying exigency” leave and also provided significant clarification in a number of other areas. (See “New Family and Medical Leave Act Regulations Issued,” Anne M. Radolinski, November 2008.) Now, on October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 (2010 NDAA), which substantially expands the list of those eligible for exigency and injured servicemember leave.

On September 30, 2009, the Occupational Safety & Health Administration (OSHA) implemented its National Emphasis Program (NEP) on recordkeeping in an effort to identify and correct under-recorded and improperly recorded cases of workplace injuries and illnesses. The NEP is a federal program and is limited to states under federal OSHA jurisdiction; however, the NEP strongly encourages state OSHA programs to conduct their own recordkeeping initiatives.

The Genetic Information Nondiscrimination Act of 2008 (GINA) is a new federal law that prohibits employers, unions, employment agencies, and health insurers from discriminating against individuals based on their genetic information. Based on GINA’s broad definition of genetic information, it is easy to imagine that an employer might unwittingly violate the law. For example, an employee who talks casually about caring for family members who suffer from muscular dystrophy is likely to have disclosed genetic information. If the employee is later disciplined, the employer will need to demonstrate an independent basis for its action. As with other claims of protected-class discrimination, the outcome can turn on the timing of the employee’s disclosure, the supervisor’s awareness of the information at the time that discipline was imposed, and consistent treatment of similarly situated employees.

U.S. businesses lose 5% of their revenues each year to fraud according to a new report issued by the Association of Certified Fraud Examiners (ACFE). In actual dollar losses, that translates to an estimated $652 billion, annually. Losses shared, unfortunately, within law firms as well as by our clients.

Swift action must be partnered with careful planning when responding to any disaster. This holds especially true in the case of the devastation in Haiti. The 7.0 magnitude earthquake that struck on January 12, 2010 was the worst in the region in more than 200 years. The International Red Cross fears that as many as 150,000 people have died and untold numbers are still trapped.

The Internal Revenue Service will begin its first Employment Tax National Research Project since 1984. This study will involve the audit of 6,000 companies and will be completed within three years. IRS Chief of Employment Tax Operations, John Tuzynski, has announced that the Service will be focusing on four employment tax compliance initiatives in 2010: 1) worker classification; 2) tip reporting compensation; 3) officer compensation; and 4) fringe benefits.

In Wells v. Commissioner the United States Tax Court reiterated that emotional distress manifested in the form of depression suffered as a result of alleged employment-related retaliation was not exempt from taxation as a personal physical injury under the Internal Revenue Code.

The U.S. Supreme Court will decide this term whether employers can review the text messages that employees send on their employer-issued cell phones, Blackberries, or pagers. In the case in question, Quon v. Arch Wireless, the Ninth Circuit U.S. Court of Appeals ruled that the City of Ontario, its Police Department and Police Chief violated an employee's right to privacy by reviewing text messages which were sent to and from an employee's Department-issued pager.

On January 19, 2010, the Department of Justice announced its successful use of a “first of its kind” undercover operation to investigate and prosecute executives for FCPA violations when it unsealed 16 indictments against officers and employees of U.S. and international companies on the heels of the arrest of 21 individuals at a convention in Las Vegas and an executive in Miami.

It now appears the Conan and NBC saga is coming to the end. It is being reported that Conan will leave NBC with a boat load of cash and will be free to have a new show on another network in the Fall. The specific terms of the deal have not yet been released, but they will definitely be detailed in a contract between Conan and NBC. Such a contract, often called a severance agreement, is used in high risk terminations as a means of avoiding costly and distracting litigation.

Fortune’s Best Companies to Work For list is back. And the results are as fascinating as ever.

On December 19, 2009, President Obama signed the 2010 Department of Defense Appropriations Act. Included in this Act was an extension of the length and availability of the 65% premium subsidy provided to COBRA participants under the 2009 stimulus act (the American Recovery and Reinvestment Act or “ARRA”). (For information regarding the original COBRA subsidy, please see our previous E*Bulletins from March 2009 and February 2009).

In this co-authored article, Ilyse W. Schuman, a shareholder in Littler's Washington, D.C. office, and Henry Lederman, a shareholder with Littler’s Walnut Creek office, discuss the Fiscal Year 2010 Department of Defense Appropriations Act and its implications for federal contractors.

On January 5, 2010, the Internal Revenue Service (IRS) issued Notice 2010-6 providing employers and employees with long-awaited guidance (and relief) with respect to correction of certain document failures that otherwise would subject nonqualified deferred compensation arrangements to the punitive terms of Section 409A of the Internal Revenue Code. Although the IRS previously issued guidance in December 2008 relating to voluntary correction of operational failures, the earlier guidance did not provide relief for document failures. The new Notice provides relief for certain document failures and clarifies earlier guidance dealing with operational failures by nonqualified deferred compensation arrangements and reporting and withholding guidelines under Section 409A.

In Wells v. Commissioner the United States Tax Court reiterated that emotional distress manifested in the form of depression suffered as a result of alleged employment-related retaliation was not exempt from taxation as a personal physical injury under the Internal Revenue Code.

The U.S. Department of Labor (DOL) on January 13, 2010 published updated model COBRA notices that address the COBRA subsidy extension provisions of the Department of Defense Appropriations Act, 2010 (DOD Act). These notices will generally need to be provided to affected individuals by February 17, 2010, but certain individuals will need to receive a notice by January 29, 2010. Accordingly, immediate attention is required.

On December 24, 2009, the U.S. Senate voted along party lines to approve the Patient Protection and Affordable Care Act (H.R. 3590), bringing health care legislation to its final stage before enactment. The U.S. House of Representatives approved its own health care bill, the Affordable Health Care for America Act (H.R. 3962) on November 7, 2009, by a vote of 220-215. Both bills would require most legal U.S. residents to obtain health insurance and would provide government subsidies to help lower-income individuals do so. The Senate bill, with a price tag of $871 billion, is expected to reduce the number of uninsured individuals by 31 million, leaving about 23 million nonelderly residents uninsured. The House bill, which costs $1.052 trillion is expected to reduce the number of uninsured residents by 36 million.

The Ragan video featuring Mayo Clinic, which I described in the last post, is well timed. Earlier this week, Cisco announced the findings of a study on social networking and its adoption in the enterprise. Based on interviews with more than 100 companies , the study explores the primary tools being used, which areas of business are adopting them and how they’re putting them to use, and some of the challenges that are arising.

On January 14, 2010, the U.S. Department of Labor (DOL) published a final regulation concerning the "safe harbor" period within which participant contributions to pension or welfare plans must be remitted by the employer to a trust or insurer. The final regulation substantially adopts the rule that was proposed by the DOL in February of 2008.

As we previously published in our December 21, 2009 Legal Alert, on December 19, President Obama signed into law the Department of Defense Appropriations Act of 2010 (the "2010 DOD Act") extending the 65% COBRA subsidy that had been previously enacted under the American Recovery and Reinvestment Act of 2009 (the "ARRA"). Under the ARRA, eligibility for the 9-month subsidy was scheduled to end December 31, 2009. The 2010 DOD Act made several important modifications to the ARRA, including: (1) extending eligibility for the subsidy to individuals who are terminated through February 28, 2010 ("assistance eligible individuals" or "AEI"s); (2) lengthening the maximum duration of the subsidy from 9 to 15 months; and (3) adding new notification requirements. The 2010 DOD Act also clarified that eligibility for the subsidy depends upon termination date – not the date on which the AEI would otherwise be eligible for COBRA coverage.

On January 6, 2010, the US Citizenship and Immigration Services issued interpretive guidance regarding the employer-employee relationship and how that must be documented in H-1 cases. The net effect of the CIS memorandum is to deny H-1 status to independent contractors and self-employed individuals, as well as limit the ability of staffing companies and PEO's to use H-1 visas to place workers at client job sites.

On December 24, 2009, the United States Senate passed its version of Health Care Reform, known as the Patient Protection and Affordable Care Act (H.R. 3590). Presently, the House and Senate Democratic leaderships are negotiating a compromise version of Health Care Reform with an articulated goal of achieving fi nal passage by Congress by the end of January or early February (in time for President Obama’s yet-to-be-scheduled State of the Union address).

Until now, no mandate or procedure has existed for employers to self-report excise taxes due under the Internal Revenue Code for violations of the duties imposed by COBRA, HIPAA and other laws relating to group health plans. The IRS has seldom assessed these excise taxes on audit.

If your organization is considering putting social media to use but is struggling with innovative ways to use these new tools, there’s no need to reinvent the wheel. Instead, look to others who have come up with these ideas and implemented them in their workplace. In a short video On My Ragan TV.com, Mayo Clinic's Linda Donlin discusses how the hospital uses video, enewsletters, blogs, and other tools to keep staff informed about strategic initiatives and to keep personnel engaged at work.

The U.S. Department of Labor (DOL), has been conducting an interesting online initiative designed to identify the best online job search and career advancement tools. They currently have 610 tools (!) posted on their site and are seeking input from people who have used the tools.

In Wells v. Commissioner the United States Tax Court reiterated that emotional distress manifested in the form of depression suffered as a result of alleged employment-related retaliation was not exempt from taxation as a personal physical injury under the Internal Revenue Code.

The recently passed law amending the Illinois Right to Privacy in the Workplace Act places statutory obligations on employers that use E-Verify. Effective January 1, 2010, Illinois employers now are required to complete an attestation at the time of E-Verify enrollment. The form requires employers to attest to the following: (1) the employer and all its employees using E-Verify have received the Basic Pilot or E-Verify training materials and completed the online computer-based tutorial (CBT) training provided by the Department of Homeland Security (DHS); (2) the employer has posted the required notice from DHS indicating that the company is enrolled in E-Verify in a place that is clearly visible; (3) the employer maintains the original signed attestation form, as well as all CBT certificates of completion and makes them available for copying and inspection at the request of the Illinois Department of Labor; and (4) the employer has posted the required anti-discrimination notice issued by the Office of Special Counsel for Immigrant-Related Unfair Employment Practices (OSC) in a place that is clearly visible. Employers already enrolled in E-Verify must sign the attestation before January 30, 2010.

On January 5, 2010, the Internal Revenue Service (“IRS”) issued Notice 2010-6(“Notice”), which provides a correction method for certain inadvertent and unintentional document failures under Code Section 409A (“Section 409A”) and Income Tax Regulation Section 1.409A-1(c). In some cases, if these failures are corrected, the amount of includible income may be limited and the amount of additional taxes under Code Section 409A may be reduced or eliminated if certain requirements are met. The intent of the correction program is to encourage taxpayers to review nonqualified deferred compensation plans and identify and correct any plan document failures, while at the same time not providing taxpayers who initially complied with less of an advantage than those who did not.

I had the pleasure of speaking to the Delaware SHRM membership last night on the topic of GINA, the new federal law protecting against discrimination based on genetic information. It was a great audience, and a topic of considerable interest. My handout is below.

Just a few days ago, NBC announced that it was moving the Jay Leno Show from its current 10 p.m. starting time to 11:35 p.m. This move was prompted by complaints from NBC affiliate stations that the Show’s poor performance was damaging the ratings of their local news programs and their profits. The move of Leno’s show, however, will require moving the start of the Tonight Show to 12:05 a.m. Yesterday, Conan O’Brien released a statement objecting to the changes and threatened to leave the show. What can employers learn from this high profile, high-stakes predicament?

On January 5, 2010, the IRS released Notice 2010-6 (the "Notice"), which prescribes methods for correction of certain documentary failures to comply with §409A of the Internal Revenue Code ("§409A"). Section 409A is the Internal Revenue Code section that prescribes requirements that must be met by most nonqualified deferred compensation arrangements, and further provides that, if the requirements are not met, the deferred compensation will be included in income – and subject to an additional 20% tax – whether or not paid when it is no longer subject to "substantial risk of forfeiture."

The U.S. Department of Labor recently released its Semiannual Regulatory Agenda, in which the agency announced its regulatory agenda and priorities for the upcoming year. Included in this announcement are three planned regulatory actions by the Office of Federal Contract Compliance Programs (OFCCP). Before the OFCCP publishes official notices of proposed rulemaking on the regulations it plans to revise, it will conduct a series of "Web Listening Sessions." These sessions will discuss the agency's anticipated regulatory activities, give stakeholders the opportunity to make suggestions and recommendations to the agency and provide information on how to participate in the official rulemaking process. They will not, however, include presentations on the planned content of any future regulatory proposals and will not answer specific questions regarding the planned content of these proposals.

To help prevent discrimination against employees with disabilities, both the federal Americans with Disabilities Act and the California Fair Employment and Housing Act require employers to provide an employee with a disability “reasonable accommodation.” This term means a modification or adjustment to the workplace that enables the employee to perform the essential functions (i.e., the primary duties) of the job.

The U.S. Equal Employment Opportunity Commission (EEOC) reported that it a record number of discrimination charges in FY 2009, the second-highest number in its history. Race and sex discrimination continued to be the most frequently filed, but religion, disability and retaliation claims all reached new highs. EEOC investigates and enforces claims of discrimination under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).

The Internal Revenue Service has released its long-awaited guidance establishing a program for correcting plan documents and agreements that contain provisions that do not comply with the deferred compensation rules imposed by Section 409A of the Internal Revenue Code. The document correction program provided by Notice 2010-6 is intended to work in tandem with Notice 2008-113, which provides guidance for correcting Section 409A operational errors.

The Obama administration's Immigration and Customs Enforcement (ICE) under the leadership of Secretary of Homeland Security Janet Napolitano implemented a bold new worksite enforcement strategy and shifted the focus onto employers in 2009. The result was immediately noticeable, and a new era of stricter corporate compliance means the business community should now be on guard and expect an increase in I-9 audits, employer recordkeeping audits, unannounced site visits, and a big push for E-Verify for use by employers in 2010.

For the uninitiated, electronic discovery has changed the nature of how litigation is conducted and the obligations imposed on litigants when it comes to the preservation of electronically stored information. A litigant who fails to take the necessary steps to preserve his electronic data can be sanctioned for this conduct, also known as “spoliation.”

The best way to learn about social media is from the examples of others. This includes both good and bad examples--you can learn quite a bit by studying the social-media blunders of organizations, as well as how they responded to the blunder. So anytime I talk to organizations and, specifically, to HR professionals about how they can put social media to use, I try to give examples of organizations that are getting it right. (Sodexo and Deloitte & Touche are two of my consistent favorites).

The Philadelphia Eagles have already had at least one negative experience with social media. You may recall that, in March 2009, the organization received a lot of negative publicity following its termination of an employee who made less-than-favorable comments about the team's decision to trade Philly favorite, Brian Dawkins--those comments were posted on the employee's Facebook page.

Thanks to iPhone J.D. for alerting us to this new app from Lexis Nexis. Lawyers, you can now get your case law on the go. According to iPhone J.D.,’s thorough review, the app doesn’t yet give us access to statutes (odd) but it is free, which is a good thing.

The Department of Defense Appropriations Act of 2010 (the "Act"), enacted on December 19, 2009, does more than dole out funds to the Department of Defense (DOD). Of particular note to federal contractors, the Act restricts DOD contractors with qualifying contracts from requiring their employees, as a condition of employment, to arbitrate claims brought under Title VII of the Civil Rights Act of 1964 and torts "related to or arising out of sexual assault or harassment."

Employee gossip about supervisors is as ancient as chatter around the water cooler. But the dynamics of workplace gossip have gone through massive changes since online social networking sites like MySpace and Facebook found their way into the lives of employees with a notion to complain. In the case of Pietrylo v. Hillstone Restaurant Group, a federal jury in the United States District Court for the District of New Jersey sent a stern message to employers regarding social networking and its effect on the workplace. On June 16, 2009, the Pietrylo jury issued a verdict against Hillstone Restaurant Group, the operator of a Houston's restaurant in Hackensack, New Jersey.

Before deciding to terminate a teacher's employment contract, a school is likely to take several steps. The school's administrator will carefully review the contract to ensure that the school complies with any provision that requires "good cause" for termination. The human resources director will scrutinize the articulated reason for termination in order to confirm that the decision does not appear to be based on unlawful discrimination or retaliation. The Head of School may even consult with legal counsel about the termination decision.

Even though there are signs that the economy is recovering, many schools are still finding that they are overstaffed in light of their budget needs. Although most private schools issue contracts for new and returning teachers between February and April, they may not know the full extent of their re-enrollment commitments until later in the spring. Worse yet, parents who do commit in the spring may change their mind if the parents' financial situation changes after signing the re-enrollment contract. Schools then find that they are faced with a need for a reduction in force.

Teenagers who push the limits of school dress codes are nothing new. Experimenting with clothing, hairstyles, and even make-up is a way for teens to explore their identities and test the limits of socially-acceptable behavior. Although school officials might find dress code enforcement challenging, dress code violations in the past tended to be fairly routine and usually revolved around prohibiting overtly sexually suggestive clothing or outward signs of gang affiliation.

In October 2009, the Federal Trade Commission (FTC) issued final guidelines, which became effective on December 1, 2009, regarding the use of “endorsements and testimonials” in advertising. “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” 16 CFR Part 255. Under those guidelines, employees who use social media like blogs or Facebook to make statements about their employers’ products may create unintended legal liability for their employers if a consumer later claims to have been misled into purchasing an allegedly dangerous or defective product by such a posting.

On January 1, 2010, a failure to comply with a new requirement for reporting to Medicare payments to Medicare-eligible individuals for resolution of claims involving medical expenses could cost the payor $1,000 per day in penalties for noncompliance.

Mary Chapin Carpenter's song sums up a lot of wisdom about life and it also conveys some important truths in the employee relations area.

The American Recovery and Reinvestment Act, or ARRA, was a comprehensive piece of legislation designed to stimulate the economy during our "Great Recession." For employers, the most significant aspect of the new law involved the continuation of health care coverage through COBRA for those involuntarily terminated since September 1, 2008, with employees paying 35% of their premiums and employers on the hook for the remaining 65%. Although set to expire on December 31, 2009, Congress is considering extending the benefit and raising the employer contribution to 75%. Stay tuned for developments in the early part of 2010.

Many employers have begun to use online social networking sites, like Facebook and Twitter, for a number of purposes, from recruiting to marketing and sales, to name promotion and branding efforts. Those organizations that have not yet made the steps to go online but are considering it seem to want guidance that is more concrete and definite. The newness of social media, however, makes this difficult.

For the first quarter of 2009, the Employee Free Choice Act (EFCA), was front page news, and the subject of scores of seminars, webinars and spirited discussions. Since then, it has virtually disappeared from view. Aside from a few rumors about possible Senatorial compromises, EFCA became a nonevent during the balance of 2009. As we move into 2010, an election year, will we see an effort to revive and enact EFCA in some form? I’m betting we will.

On December 19, 2009, President Obama signed into law a new Defense Appropriations Act. The Act contains a provision, originally introduced by Senators Al Franken of Minnesota and Mary Landrieu of Louisiana, with important implications for federal defense contractors and subcontractors that have implemented arbitration agreements for their employees. Specifically, the Act prohibits the federal government from awarding funds appropriated by the Act for any federal contract in excess of $1,000,000 if a contractor requires its employees or the employees of an independent contractor to arbitrate certain claims.

What? NLRB General Counsel ordered to bargain!; NLRB poised for changes; EFCA update; Supreme Court will hear two-member Board cases; Teamsters out for blood? Canadian court upholds Walmart store closing; New nurses’ “super union” to become “organizing machine”?

The line between work and home is hardly visible. To describe it as “blurred” would be inaccurate. The reality (for most of us) is that the line can barely be seen and, for some, only fades into existence occasionally for short intervals. And there seems to be little debate about the validity of this conclusion. The debate begins only when the question is asked whether this reality is a positive or negative one.

A Congressional committee is currently reviewing a bill titled the “Patriot Corporations of America Act of 2009” (H.R. 1874), which would take effect for taxable years beginning after December 31, 2009. The bill’s stated purpose is “to provide federal contracting preferences for, and a reduction in the rate of income tax imposed on, Patriot corporations, and for other purposes.”

The Equal Employment Opportunity Commission has issued proposed regulations for ways to improve how discrimination complaints are processed. I’ll beg your pardon if the first thought that comes to mind when I hear this is, “Improve it for whom, exactly?”. The sarcasm didn’t stop there. The more I read, the more questions I have, each tinted with at least a hint of snarkiness. (The snarky comments are denoted in blue).

On December 21, 2009 President Obama signed into law an extension to the COBRA subsidy created by the American Recovery and Reinvestment Act ("ARRA"). This new legislation, which is part of the 2010 appropriations bill for the Defense Department ("the Act"), not only extended the period during which involuntary terminations would trigger subsidy eligibility, it also expanded the duration of the subsidy.

As more information about the perpetrators becomes available, we are hearing about several, all too familiar, warning signs of the men believed to be responsible for the recent shootings in Orlando, Florida and Killeen, Texas. This is a very appropriate time to refresh our memories about the types of behavior that should be cause for concern in the workplace.

With little fanfare and seemingly even less reaction from employers, Title II of the Genetic Information Nondiscrimination Act (GINA) took effect on November 21, 2009. Title II generally prohibits employers, employment agencies and unions from collecting employees' or applicants' genetic information - which specifically includes family medical history. The law also precludes any type of genetic testing of employees or applicants.

Continuing the trend of increasing I-9 audits, U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced on November 19 the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country. This round of inspections is focused on employers associated with "critical infrastructure." The employers were selected based upon investigative leads and intelligence and because of the businesses' connection to public safety and national security. While the names of the businesses were not released, it is suspected that employers based at or near airports, borders, military installations, and critical infrastructure facilities (such as power plants, chemical facilities, etc.) are likely targets. In the same press release, ICE indicated that its newly-implemented enforcement strategy initiated on April 30 has already resulted in 1,069 Form I-9 Inspections and Notices of Intent to Fine (NIF) totaling nearly $16 million.

FMLA for flight crews.

The first bill signed into law within days following President Barack Obama's inauguration was the Lilly Ledbetter Fair Pay Act. This law extended the statute of limitations for filing charges of discrimination in compensation beyond the statutory 180/300 days from the alleged discriminatory act by making each new pay check a separate violation triggering a new period of charge filing (even if it was decades after the act in question). The law reversed the U.S. Su-preme Court's 5-4 decision in Lilly Ledbetter v. Goodyear Tire & Rubber Co. It was passed without congressional hearings or even a mark-up in a congressional committee.

In the whirlwind surrounding the Employee Free Choice Act (EFCA), it might be easy to ignore the basic need to ascertain that employee handbooks and policy manuals pass National Labor Relations Board (NLRB) muster in the event of union organizing or concerted activity. Nevertheless, the changing of the guard at the NLRB under the Obama Administration makes this basic exercise even more important.

On October 28, 2009, President Barack Obama signed the National Defense Authorization Act (NDAA) for the 2010 Fiscal Year, which includes provisions that expand the military leave entitlements of the federal Fam-ily and Medical Leave Act (FMLA). The NDAA amends both the "qualifying exigency" and military caregiver leaves that became effective in January 2008.

Congress has done it again. The new Genetic Information Nondiscrimination Act ("GINA") prohibits discrimination against employees and job applicants on the basis of "genetic information". This law was signed into law by President Bush on May 21, 2008 and became effective on November 21, 2009. We have prepared this FAQ to familiarize you with the new law and the many obligations it imposes on employers.

On December 19, 2009, President Obama signed into law the Fiscal Year 2010 Department of Defense Appropriations Act (the "Act"). Embedded in this $636 billion spending measure is a provision that prohibits federal contractors receiving Defense Department funds for contracts in excess of $1,000,000 from requiring their employees or independent contractors to arbitrate certain disputes, including claims under Title VII of the Civil Rights Act of 1964. Such federal contractors also will be required to certify that their subcontractors agree to these same restrictions.

Blogs are booming. Employees are now using these Internet diaries to broadcast information and opinions worldwide. Inevitably, some of those employees will post hostile, false, or confidential information about their employers and fellow employees.

I continue to be amazed by some of the less-than-best writing practices of my friends and colleagues. Many of these practices relate to the ways in which they format documents. I recognize that many of these practices derive only from habit—not bad intentions. But that doesn’t make them any less annoying. And what makes them more annoying is the irrational devotion they garner.

As was anticipated, legislation amending the American Recovery and Reinvestment Act of 2009 has been enacted that extends the eligibility period for the COBRA subsidy to February 28, 2010. In the absence of the amendment, the eligibility period would end December 31, 2009. In addition, the bill extends the duration of the subsidy from nine months to 15 months.

Yesterday, we published an Executive Alert on the SEC's new rules requiring enhanced disclosures regarding risk management in relation to compensation policies, revisions to disclosure of a company's valuation of stock and option awards, and enhanced director and director nominee qualification disclosures. See SEC Adopts Final Rule Requiring Enhanced Proxy Statement Disclosure About Risk, Compensation and Corporate Governance . Our Alert noted that the effective date of the new rules was February 28, 2010 but indicated that the adopting release and the SEC had failed to provide detailed guidance on implementation of the effective date.

On December 16, 2009, the SEC approved new rules requiring enhanced disclosures regarding risk management in relation to compensation policies, revisions to disclosure of a company's valuation of stock and option awards, and director and director nominee qualification disclosures, among other things. The rules will take effect on February 28, 2010. However, the SEC's adopting release and the SEC at the open meeting failed to provide detailed guidance on implementation of the effective date. We are currently interpreting the effective date to mean that the new rules apply to proxy statements filed on or after February 28, 2010, and not to proxy statements filed before that date for annual meetings after that date. It is not clear how this effective date will apply to preliminary and definitive proxy statements that straddle the February 28, 2010 date. We will continue to monitor this matter for further guidance from the SEC or the SEC staff.

The COBRA subsidy first provided by the American Reinvestment and Recovery Act of 2009 was extended on December 21, 2009. The extension was authorized by a provision in the 2010 Defense Appropriations Act (“Act”). Employers should become familiar with this extension and coordinate with their service providers to ensure appropriate steps are taken to implement the changes.

2010 H-1Bs Nearly Gone; Compliance Corner: ICE Policy on I-9 Audits; The Year in Review – 2009 Compliance Recap; Preparing for 2010 – Compliance and Reform?

Just in time for the holidays, and as part of the 2010 appropriations bill for the Defense Department (the Act), President Barack Obama today signed into law an extension to the subsidy for COBRA created by the American Recovery and Reinvestment Act (ARRA). The legislation extended the period during which involuntary terminations would trigger subsidy eligibility, as well as expanding the duration of the subsidy. Employers and plan administrators also will face new notice and administrative requirements to implement the subsidy extension on a retroactive basis. Below are a few of the highlights.

On December 21, 2009, President Obama signed into law the Fiscal Year 2010 Defense Appropriations Act. The Act extends the current nine-month COBRA subsidy for an additional six months, for a total of 15 months. It also extends eligibility for the subsidy to workers who are involuntarily terminated through February 28, 2010. The prior law covered workers involuntarily terminated through December 31, 2009. The Act requires employers to provide current and future COBRA beneficiaries with notice of the extension.

SEC Releases Final Disclosure Rules for 2010 Proxy Season.

The Employee Benefits Security Administration (EBSA) has extended the eligibility date for the COBRA premium subsidy for two additional months, through February 28, 2010. The extension was authorized by a provision in the 2010 Defense Appropriations Act (Act). As with the original subsidy this past February, employers should become familiar with this extension and coordinate with their service providers to ensure appropriate implementation and accurate notices. (See COBRA Premium Subsidies Notice Requirements and Action Plan.) Transition time has been built in to the extension.

On December 22, 2009, United States Citizenship and Immigration Services (USCIS) announced that as of December 21, 2009, it has received enough H-1B petitions to meet the H-1B cap for Fiscal Year 2010 (beginning on October 1, 2009). In addition, USCIS has approved all 20,000 visa petitions needed to meet the U.S. master’s degree cap. USCIS will conduct a random lottery for all cap-subject petitions received on December 21, 2009, and will reject all cap-subject petitions not randomly selected or received after December 21, 2009.

On December 19, 2009, President Obama signed into law the Department of Defense Appropriations Act, 2010 (the "Appropriations Act"), provisions of which extend and expand the program that subsidizes continued health care coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (or similar state continuation coverage laws) ("COBRA") for involuntarily terminated employees. That program, initially enacted as part of the American Recovery and Reinvestment Act of 2009 ("ARRA") and as more fully described in a prior Cooley Alert, provides that certain employees whose employment is involuntarily terminated between September 1, 2008 and December 31, 2009 can continue health coverage under COBRA by paying only 35% of the ordinary COBRA premiums for up to nine months. The insurer, the employer or the health plan pays the remaining 65%, which is recovered from the federal government through a credit against payroll tax liabilities or through direct reimbursement.

The Internal Revenue Service (“IRS”) recently issued final regulations that govern the terms of employee stock purchase plans (“ESPPs”) under Section 423 of the Internal Revenue Code. These final regulations will be effective January 1, 2010 and apply to statutory options granted before that date. The final regulations retain most of the rules in the proposed regulations as well as provide new guidance and clarification in some areas. The regulations clarify that the plan document requirements (under which the written plan document must contain certain information) may be satisfied by the terms of the plan document or of the offering under the plan.

President Obama has signed into law the Airline Flight Crew Technical Corrections Act, a bill designed to close what was seen as a gap in coverage of airline pilots and flight attendants under the Family and Medical Leave Act (FMLA). The Act amends the FMLA to make it easier for flight crews to qualify for leave by changing the way in which hours of service requirements are met to account for the airline industry's unique timekeeping methods.

On December 21, 2009, President Obama signed legislation extending the COBRA premium subsidy originally established under the American Recovery and Reinvestment Act of 2009 ("ARRA"). Under the ARRA, only individuals who were involuntarily terminated and who lost group health insurance coverage before December 31, 2009 were eligible to receive the subsidy. Moreover, the subsidy was only available for nine months of coverage.

On December 10, 2009, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council published a final rule implementing President Obama's Executive Order 13496 entitled "Notification of Employee Rights under Federal Labor Laws" ("Order"). This Executive Order was signed on January 30, 2009, along with two other pro-labor Executive Orders entitled "Nondisplacement of Qualified Workers under Service Contracts" and "Economy in Government Contracting."

On December 16 and December 19, respectively, the U.S. House of Representatives and the U.S. Senate passed a temporary extension to the COBRA subsidies that were originally enacted in the American Recovery and Reinvestment Act of 2009 (ARRA).1 This new legislation is expected to be signed by President Obama by the end of 2009, and requires immediate attention by employers, as the original ARRA COBRA subsidies either have expired or are in the process of expiring. Also, this legislation requires notifi cation to certain individuals within 60 days after the legislation is signed into law.

According to a recent survey, information you believe is confidential may also be in your competitor's offices. A report from the Ponemon Institute details that companies are doing a poor job preventing former employees from stealing data. Some details from the report should give every employer cause for concern, particularly in this time of sharp staff reductions.

The eligibility for the COBRA premium subsidy was about to expire for those individuals who are involuntarily terminated and become eligible for COBRA benefits after December 31, 2009. However, on December 21, 2009, the President signed legislation that extends the eligibility for the subsidy to those individuals who are involuntarily terminated and become eligible for COBRA coverage before February 28, 2010.

The EEOC announced last week that large grocery store chain Albertsons has agreed to pay $8.9 million to settle three lawsuits in which the EEOC alleged that it had engaged in race, color and national origin discrimination, and retaliation, at a distribution center in Aurora, Colorado.

The following is an advisory opinion issued in October by the South Carolina Advisory Committee on Standards of Judicial Conduct that addresses the use of social-networking sites by a magistrate judge:

Delaware has long since included “marital status” in its list of categories (along with race, sex, gender, religion, and sex) protected by the state’s anti-discrimination statute. But what is marital status discrimination? Does it really occur, and has an employee ever filed a claim based on alleged marital status discrimination? A new Policy Briefing from the Sloan Work and Family Research Network (pdf) gives some insight into this area of discrimination rarely discussed.

Yesterday, the U.S. Securities and Exchange Commission (the "SEC") adopted amendments to the SEC's disclosure rules relating to director and director nominee qualifications, the structure of board governance, compensation consultants’ fees and conflicts of interest, and the relationship between a company’s overall compensation policy and its risk profile. The following is a summary of the new and amended rules.

2009 Re-cap.

Representative Luis V. Gutierrez (D. Ill.) and the Congressional Hispanic Caucus introduced The Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 (“CIR ASAP”) on December 15, 2009. The bill proposes a broad array of provisions to strengthen immigration enforcement, provide a path to legalization for persons unlawfully in the United States, and make some changes to employment-based visas.

Section 6039 of the Internal Revenue Code of 1986, as amended (the "Code"), imposes reporting requirements on corporations with respect to the exercise of incentive stock options and the transfer of stock acquired under employee stock purchase plans.

As 2009 winds down, it’s a good time to reflect on the most important employment law developments in what has been a very busy year. Here are my top 10:

Companies these days usually realize the importance of summary judgment in employment litigation. In fact, some employers call the summary judgment stage the "real trial," since if they lose at that stage, they most often will settle the case before it is tried before a jury. But is summary judgment winnable any more?

Many companies require high-level managers, salespeople, researchers and other key employees to sign confidentiality, non-solicitation and/or non-compete agreements, also known as “restrictive covenants.” These agreements are intended to prevent key employees from capitalizing on proprietary knowledge they learned or developed and relationships with customers and employees that they formed in the course of their employment for their own benefit or the benefit of competitors and against the interest of their former employers.

Government health officials predict millions of Americans will contract the novel H1N1 flu virus, commonly called the Swine Flu. No business will be immune from the effects of this virus. Employers should prepare for the impact of a pandemic on the workplace with a sense of urgency. Proper planning for this serious employment challenge will be essential to protect the health of employees while avoiding disruption of operations.

On September 2, 2009, the Transportation Trades Department (TTD), AFL-CIO, petitioned the National Mediation Board (NMB) to change the 75-year-old majority rule, which requires a majority of eligible voters in a craft or class to cast ballots for representation before the NMB will certify a union as the bargaining representative for that craft or class. The TTD's petition asked the NMB to replace the majority rule with a rule that would allow a union to be certified if a majority of the employees who cast ballots voted for union representation. On November 3, 2009, two members of the NMB submitted a Notice of Proposed Rulemaking (NPRM) to the Federal Register. The NPRM stated that the NMB intended to change the majority rule to a minority rule. On December 7, 2009, the NMB held an "open meeting" with interested parties to discuss the rule change. During the "open meeting," speeches were given by both proponents and opponents of the NPRM. The Board members did not ask any questions of the meeting participants. No sworn testimony was taken from the participants, nor were any of the participants subject to cross-examination.

If you are responsible for administering your organization’s 403(b) plan, time is running out to adopt a plan document that complies with Internal Revenue Code (“Code”) section 403(b) and the final regulations issued for 403(b) plans.

The following is a brief review of significant 2009 workplace law developments. Although a comprehensive treatment of all noteworthy changes is beyond the scope of this summary, we hope this retrospective will assist our readers. (For monthly updates, register at our website to receive free e-mail delivery of Preventive Strategies Online Workplace Law News to have our legal updates sent to your inbox.)

An employee stock purchase plan ("ESPP") allows employees of corporations (typically publicly traded companies) to purchase company stock or stock of an affiliate at a discount with the potential for favorable tax treatment under Section 423 of the Internal Revenue Code ("Section 423") if certain conditions are met. Under an ESPP, eligible employees receive options to purchase company stock (usually at a discount) pursuant to an "offering." Employees typically participate in an ESPP by authorizing voluntary payroll deductions during an "offering period."

Employers should review compensation rates for both exempt and nonexempt employees to ensure compliance with current legal thresholds. Set forth below are rates at the federal level, and for some states and localities, that apply to the most common job categories.

Cleveland partner Patricia Poole, who concentrates her practice in the areas of regulatory compliance and litigation, including occupational safety and health, toxic tort, environmental, employment intentional tort and emergency response, authored an article, "OSHA 2009 Site-Specific Targeting Plan: What Your Company Needs To Know," which was published in the December 2009 edition of EHS Today, the magazine for environment, health and safety leaders.

In this artice, Kevin S. Mullen, of Littler's Dallas office explains the best way for employers to proceed when evaluating the accommodation of employees covered by the ADA.

On Nov. 21, employers will be required to comply with yet another federal law that restricts disclosure of employee health information. Specifically, the Genetic Information Nondiscrimination Act of 2008 will join the Americans with Disabilities Act, and the Family and Medical Leave Act as federal laws that restrict what you can and can't do with employee medical information. GINA, which overwhelmingly passed both houses of Congress last year, was hailed by Sen. Ted Kennedy as "the first major new civil rights bill of the new century." Although Oregon and 36 other states already have genetic information laws on the books, GINA will ensure wide-sweeping and consistent coverage across the country.

Two high-profile sexual-harassment cases are in the news. One is just beginning, the other has come to a close.

The State Department has PROPOSED to raise the base visa fees from $131 to a higher amount varying by category, from $140 to $390. This is on top of USCIS petition fees and visa reciprocity fees.

In an earlier post, I discussed the implications of "friending" by employees. I suggested that there are a few options for employers and how they handle this sometimes awkward social-networking phenomenon. One option is to prohibit supervisors from making friend requests to their direct reports.

Social-media guidelines has been the topic of several recent posts. One of the questions that I suggest employers consider when drafting a social-media policy is “the friending issue.” That’s right. When deciding on how employees will be encouraged or required to engage online, one point that comes up repeatedly is whether there should be any rules with respect to friending on Facebook.

On December 8, 2009, the U.S. Supreme Court issued a unanimous decision holding that a panel of the National Railroad Adjustment Board (NRAB) violated the Railway Labor Act (RLA) when it refused to hear five grievance cases on the ground that the railroad and the union had not presented sufficient evidence to show that they had completed the required "conferencing" before arbitration.

Immigration Costs and Fees for H-2A Agricultural H-2B Non-Agricultural Workers: Who is Responsible?

The eBoss Watch Worst Bosses of 2009 award is one that you probably don't want framed above your desk. There are 25 "winners" selected by a panel of experts on workplace behavior, bullying, and civility.

The 2008 Holiday Gift Guide was so popular, I’ve been waiting all year to revisit the topic in improved form. This is the first part of the Guide and includes all of the technology that your favorite lawyer (or other thinking professional) could possibly hope to receive this year. Happy gifting!

The employment-related provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA) took effect on November 21, 2009. The employment-related aspects of the law, found in Title II of GINA, are enforced by the U.S. Equal Employment Opportunity Commission. Although the EEOC has yet to finalize implementing regulations, the agency has published a new nondiscrimination poster that incorporates the new information about GINA. Employers should currently be using the new poster or a supplement.

As 2009 draws to a close, employers sponsoring employee benefit plans must be mindful of a number of compliance requirements, including requirements under the Employee Retirement Income Security Act of 1974 (“ERISA”) and the Internal Revenue Code (the “Code”). This client alert outlines separately, for both health and welfare plans and pension plans, compliance obstacles and deadlines facing plan sponsors in the future. This alert concludes with a listing of the 2010 dollar limitations for pension and retirement plans, as indexed for cost-of-living adjustments and as released by the Internal Revenue Service (“IRS”).

The Occupational Safety and Health Administration (OSHA) is proposing to modify its existing Hazard Communication Standard (HCS) to conform with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals (GHS). OSHA has made a preliminary determination that the proposed modifications will improve the quality and consistency of information provided to employers and employees regarding chemical hazards and protective measures. OSHA’s proposed standard is published in the Federal Register (74:50279-50549) and is open for public comment until December 29, 2009. OSHA is requesting comment on all relevant issues, including economic impact and feasibility, environmental impact, effects on small entities, proposed revisions to the HCS and subsequent modifications to other standards. Comments may be submitted by email, fax (10 pages or fewer: 202.693.1648) or hardcopy (three copies—OSHA Docket Office, Docket No. OSHA-H022K-2006-0062, U.S. Dept. of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210).

On December 7, 2009, U.S. Citizenship and Immigration Services (USCIS) released updated information on H-1B non-immigrant visa petitions for Fiscal Year 2010 (beginning October 1, 2009), stating that as of December 4, 2009, it has received 61,100 of the 65,000 H-1B non-immigrant visa petitions needed to meet the H-1B regular cap, and that it has approved all 20,000 visa petitions needed to meet the U.S. master’s degree cap. If USCIS receives any new H-1B petitions filed under the U.S. master’s degree cap, those petitions will now count towards the regular H-1B cap of 65,000. USCIS will continue to accept new H-1B visa petitions filed under both the regular and U.S. master’s degree caps and monitor the number of petitions received, since not all petitions can be approved.

The EEOC has issued a new poster to reflect, among other recent changes, the Genetic Information Non-Discrimination Act requirements. The GINA took effect on November 21, 2009.

United States Citizenship and Immigration Services (USCIS) announced that 58,900 H-1B petitions have been filed toward the 2010 Fiscal Year (FY 2010) cap of 65,000 as of November 27, 2009. Employers are urged to act quickly to file H-1B petitions for any individuals subject to the H-1B cap, such as: F-1/J-1 employees (especially those whose employment authorization will expire before September 30, 2010); prospective employees currently outside of the Unites States; and employees currently working in another time-limited visa classification (such as L-1B or TN).

You may have seen the November 24 Wall Street Journal article about a handful of recent court decisions finding that employees have a right to privacy in e-mails transmitted on personal e-mail accounts accessed on company computers. Importantly, under these and similar decisions, the employees would not have had such a right to privacy had their employers maintained a well-drafted technology use policy. Accordingly, it has become more important that employers draft, disseminate and enforce workplace technology use policies to defeat employees’ claims that personal e-mails on company computers, including communications with attorneys, are protected by a right to privacy. A well-drafted technology use policy should provide that:

The Immigration and Customs Enforcement agency, the enforcement arm of the U.S. Department of Homeland Security, announced in November that it had issued I-9 audit notices to 1,000 businesses. ICE says it is targeting employers that are associated with “critical infrastructure” and “public safety and national security,” but these “limitations” appear to be very broadly drawn.

At the AON Social Media & HR Summit conference this week, the topic of social-media policies has come up repeatedly. Attendees at this event are very savvy with respect to the multitude of ways that social media can be used in Human Resources and by employers, generally. But a question that keeps coming up is “Ok, so now what?” HR professionals seem to be embracing the many ways that social media can be used but know that there needs to be a set of guidelines for acceptable and appropriate use.

As reported in a previous Alert, in July 2009 the National Mediation Board (NMB) announced that it was soliciting comments on whether it should permit the use of electronic "hyperlinks" to the website where employees may cast their vote in NMB elections. After receiving and considering those comments, on December 1, 2009, the NMB reaffirmed its position that participants in elections – carriers, unions and individuals involved in the election – may not post hyperlinks to the NMB's voting website. The one modification the NMB did make to its hyperlink policy is to reinstate a hyperlink to the voting site on the NMB's own website, www.nmb.gov; parties remain free to post hyperlinks to the NMB's website.

The Department of Homeland Security and Citizenship and Immigration Services (CIS) have just released new data regarding the current FY2010 H-1B quota. Based on their statistics, there has been a dramatic, recent up-swing in the number of H-1B filings. As of November 27, 2009, there were 58,900 filings against the fiscal year cap of 65,000. While there is no way to predict exactly when the quota will be met, the surge in filings would indicate that the cap may be reached sooner than expected.

Despite a November voter referendum in Maine that overturned the state's same-sex marriage law and a very recent rejection of same-sex marriage by the New York State Senate, the year 2009 saw progress for the legal recognition of same-sex marriage and domestic partnerships. The following is a summary of recent developments in this fast-evolving area of the law.

The Federal Office of Contract Compliance Programs (OFCCP) has issued a new round of Corporate Scheduling Announcement Letters (CSAL). Although previously there was speculation that the agency would stop sending CSAL letters, this does not appear to be the case – at least for this fiscal year. The CSAL letters do not require employers to take any specific action, but they do give employers a "heads up" regarding what facilities may be the subject of a future OFCCP compliance review.

Many ERISA retirement or pension plan managers have plan money invested in limited partnership positions in private equity forms. The plan manager has a fiduciary duty to the employees whose funds are included in the plan to ensure that the plan's money is prudently invested.

The OFCCP will send another round of Corporate Scheduling Announcement Letters (CSALs) for Fiscal Year 2010. The Agency is mailing the CSALs the week of November 30 to contractors with more than one establishment on the OFCCP’s FY 2010 audit scheduling list. The CSALs will alert contractors which of their locations are slated for audit in FY 2010.

Questions continue to plague employers regarding the extent to which the Americans With Disabilities Act (ADA) may restrict them from implementing wellness programs and initiatives in connection with the group health plans that they sponsor. The issues surrounding these initiatives have been further clouded by the ADA Amendments Act (ADAAA) and the regulations under the ADAAA that were proposed September 23, 2009 by the EEOC (the "Proposed Regulations"), which substantially expanded the universe of individuals who are protected under the ADA. On August 10, 2009, the EEOC issued an Opinion Letter, recently made publicly available, regarding HRAs offered in connection with a health reimbursement arrangement.

On Nov. 21, employers will be required to comply with yet another federal law that restricts disclosure of employee health information. Specifically, the Genetic Information Nondiscrimination Act of 2008 will join the Americans with Disabilities Act, and the Family and Medical Leave Act as federal laws that restrict what you can and can't do with employee medical information. GINA, which overwhelmingly passed both houses of Congress last year, was hailed by Sen. Ted Kennedy as "the first major new civil rights bill of the new century." Although Oregon and 36 other states already have genetic information laws on the books, GINA will ensure wide-sweeping and consistent coverage across the country.

The Internal Revenue Services (IRS) has announced a delay in beginning a comprehensive employment tax audit program originally scheduled for November 2009 but now scheduled to begin February 2010. In February, the IRS will launch its latest National Research Program (NRP). This NRP will be focused on conducting detailed employment taxes examinations. Approximately 6,000 employers are to be randomly selected for audit. In addition to potential "assessments," these audits will provide the IRS with the statistical sample of overall employment taxes compliance. The audit program will be conducted over a three year period with at least 2,000 employment tax audits conducted per year. Audits likely will include both for profit and non-profit employers.

Social-media policies are a really hot topic. I spoke today for 3 hours (and 20 minutes, to be exact) about what things an organization should consider when preparing to draft a social-media policy. (To follow the conference on Twitter, use the hashtag #aonsocial09). After the talk, several of the attendees commented that they appreciated the substantive nature of the presentation; i.e., that it was more of a roll-up-your-sleeves type of presentation as compared to more theory-based. This was probably a result of the length of the session. With three hours, it was easier to get into the real heart of the topic instead of an overview.

2009 brought a bold new audit initiative from the Department of Homeland Security (DHS) that will continue into 2010, with widespread investigations into companies' hiring records and I-9 policies.

On November 2, 2009, the Equal Employment Opportunity Commission (EEOC) announced that it settled a class action lawsuit against Lawry's Restaurants Inc. The EEOC reported that the west coast steakhouse chain agreed to settle the lawsuit, alleging gender discrimination, for more than one million dollars.

When you fire an employee, there is always the concern that your termination decision will end up under the microscope of litigation – the human resources equivalent of Monday-morning quarterbacking. But instead of having that employment dispute resolved in a courtroom, you may want to consider adopting an arbitration policy that substitutes an arbitration hearing for a courtroom trial.

Glass-ceiling research shows women continue to be harmed by gender stereotypes. Managers continue to discriminate against female subordinates because they incorrectly perceive women as having greater conflicts between their family responsibilities and their work responsibilities than men, reports The Academy of Management Journal. Somewhat surprisingly, both male and female managers harbor this misperception.

The U.S. Equal Employment Opportunity Commission (EEOC), announced on that it is now enforcing the Genetic Information Nondiscrimination Act of 2008 (GINA), which was enacted in May 2008 and went into effect on November 21, 2009. The EEOC’s summary of GINA says:

On July 9, 2009, President Obama nominated Craig Becker to be a member of the National Labor Relations Board (NLRB). This is bad news for employers. Becker goes beyond espousing pro-labor positions; he occupies the very fringe of the left wing of the labor movement. As a member of the NLRB, he would be in a position to radically change the rules for retailers and all other businesses.

Many companies need to take on extra help around the holidays, retail stores more so than most. Poor hiring decisions this holiday season could have repercussions on employers and turn a profitable season into a costly discrimination lawsuit. Well-planned hiring practices that comply with federal, state and local employment laws can help ensure that seasonal employees are well-suited for the job, and that the company is in a position to defend any possible claims. Here are six tips to ensure success and keep the peace in your workplace.

On Thursday, November 19, ICE Assistant Secretary John Morton announced that the agency was issuing Notices of Inspection to 1000 employers across the country. In the News Release, Morton stated: "ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces . . . We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sections to even the playing field for employers who play by the rules." The employers selected for this round of enforcement were chosen because of their connection to "critical infrastructure" and based upon investigative leads and intelligence.

Last week, U.S. Immigrations and Customs Enforcement (“ICE”) Assistant Secretary, John T. Morton, announced that ICE was issuing Notices of Inspection (“NOI”s) to 1,000 employers across the country in an attempt to identify and penalize employers who are not complying with employment eligibility verification laws. This announcement came on the heels of another recent ICE initiative—conducting on-site audits of H-1B applications. While the debate regarding immigration reform continues, one thing is clear: ICE is dramatically increasing its presence and monitoring of companies, so you need to know both how to prepare for and how to respond to these audits and inspections.

Depending on who you ask, PDAs are either the greatest workplace innovation since desktop computers, or the bane of an employee's existence. In today's wireless environment, BlackBerrys, iPhones, and other handheld devices increasingly provide employees with round-the-clock access to email from remote locations. While wireless gadgets allow us to maximize productivity in competitive economic times, they may also give rise to overtime, minimum wage and other wage payment claims.

While our crystal ball is no better than anyone else's, change in our country's labor laws appears to be drawing ever closer. While EFCA as it was originally proposed with its elimination of secret-ballot elections is undergoing change, a lot of other tweaking has been going on lately in the Senate reflecting unions' desire to find some form of legislation which will pass and which will give them the stimulus they need to revitalize their efforts to halt the continuing loss of union jobs and members.

Instead of listing some of the highlights of 2009 (we'll be doing that in our January, 2010 issue), we thought we'd list here for your amusement some of the more far out facts in a few cases we handled this year. These aren't necessarily the cases that made new law or placed our clients the most at risk. These are the ones that really had us scratching our heads about why some people bring lawsuits in the first place.

The Employee Benefit Security Administration (EBSA), the division of the Department of Labor (the DOL) that oversees employee benefit issues, has set out its priorities for 2010. Topping that list is the timely remittance of employee contributions to retirement plans.

In Notice 2009-73, 2009-51 IRB, the IRS announced a two-year pilot project allowing for paper payee statements such as IRS Form 1099s to be issued with a truncated Social Security number. The project, which covers 2009 and 2010, is aimed at reducing potential identity theft and is effective immediately.

Bad things can happen when you fail to proofread. For example, I previously wrote about surprisingly severe consequences that resulted from less-than-perfect legal filings. (See 3 Reasons to Proofread that Document One More Time). Little did I know how common these stories actually are. Apparently, the longing desire for better writing is a popular sentiment. Here are a few recent stories demonstrating the trend:

Below are summaries of three recent employment-discrimination cases involving multi-million-dollar awards for the plaintiff-employee. Don’t shoot the messenger.

Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced last week the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure - alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.

The current downturn has left many companies scrambling to manage workplace issues -- ranging from how to avoid a brain drain to how they can provide better value to customers and clients. Employees, for their part, face the challenges that arise from working in a leaner organization that demands increased productivity with fewer resources. Knowledge@Wharton talked about these issues with Peter Cappelli, Wharton management professor and director of the school's Center for Human Resources, and Philip Miscimarra, a partner in the labor and employment practice in the Chicago office of law firm Morgan, Lewis & Bockius, co-chair of the Morgan Lewis/Workforce Change practice, and managing director of Wharton's Center for Human Resources research advisory group. An edited transcript of the conversation follows.

With little fanfare and even less reaction from employers, the Genetic Information Nondiscrimination Act (GINA) took effect on November 21, 2009. GINA generally prohibits employers, employment agencies, and unions from collecting genetic information – which specifically includes family medical history - related to employees or applicants. The law also precludes any type of genetic testing of employees or applicants.

On October 28, 2009, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 ("NDDA for 2010"), which again amended the FMLA by expanding the circumstances under which relatives of military service members and veterans may take FMLA leave under the Military Caregiver Leave and Qualifying Exigency Leave provisions.

According to recent estimates released by the Centers for Disease Control and Prevention (CDC), approximately two million people in the United States have been infected with the H1N1 flu since April, and some 4,000 Americans, including 540 children, have died from the virus. President Obama declared the 2009 H1N1 pandemic a national emergency on October 24, 2009, and various government agencies are taking steps to guide and govern employers' efforts to minimize the potential for exposure in the workplace.

The Genetic Information Non-Discrimination Act, or "GINA," becomes effective November 21, 2009. GINA generally prohibits discrimination based on genetic information by health plans, insurance issuers, and employers, and is comprised of two separate Titles. Employers may be impacted by the provisions of both Title I and Title II of GINA, and should be prepared to make certain changes in anticipation of its effective date.

The widespread use of mobile communications technology has resulted in many companies allowing – even encouraging – their employees to work after hours and away from work. For example, many employers issue BlackBerrys or similar smart phones to their employees and expect their employees to be available and to respond to email or phone messages in the evenings and on weekends. Others require employees to coordinate work by email or by texting in the mornings before meeting at a job site.

The Equal Employment Opportunity Commission (EEOC) has revised the Notice that all employers covered by the federal anti-discrimination laws must post in their workplaces. The revised Notice reflects the requirements of the new Genetic Information Nondiscrimination Act 2008 (GINA) and the changes made by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).

Employees in several industries continue to pursue claims under the Fair Labor Standards Act (FLSA) alleging that various pre-shift and post-shift activities such as putting on, taking off or washing sanitary or protective gear before and after work is compensable and/or not being compensated adequately. This "donning and doffing" litigation is especially active in the food processing industry, and the law governing the claims continues to evolve in response to the thousands of claims being pursued.

The American Recovery and Reinvestment Act of 2009 (ARRA) was signed into law by President Obama on February 17, 2009 and authorizes up to $787 billion in federal spending through September 30, 2010. Potential federal spending includes funding for construction projects in all 50 states, the District of Columbia, and U.S. territories, as well as the procurement of supplies and services.

An employment tax audit may be in your very near future. In an interview given to Bloomberg by John Tuzynski, IRS Chief of Employment Tax Operations, on September 18, 2009, Tuzynski said that the IRS will spend three years auditing 6,000 companies beginning in February 2010. The companies will be selected at random and will include large and small companies. They will be selected from across many different industries. This marks the first comprehensive examination of employment tax issues by the IRS since 1984.

The Lilly Ledbetter Fair Pay Act of 2009 (the "Act") was the first piece of legislation signed by President Barack Obama. There was much anticipation and fanfare surrounding the Act's inception, passage and enactment. Many organizations and individuals were quite outspoken in their support or criticism of the law. Alarms were sounded and employers were fearful about the potential impact. The Act was widely billed as "Granting Equal Pay to All Women" even though it applies to compensation decisions alleged to have been based on other protected categories including age, disability, religion, national origin, race and color.

A year ago at this time, it seemed that every other phone call or e-mail I received from a client was a question about layoffs and downsizing. This fall, the main questions coming my way have been about swine flu (also known as H1N1). Following are answers to the most common questions I've been asked.

"Love contract," is the common phrase that refers to a written confirmation that two employees' romantic relationship is voluntary, and that they both understand and know how to use employer policies that deal with harassment in the workplace.

Now that the U.S. House of Representatives has passed its version of a health care reform bill, all eyes turn to the Senate. No matter where you stand in the debate over issues such as the public option, big labor bosses hope you do not notice some lower-profile provisions tucked into the pages of this massive proposal. If they become law, these provisions would give union leaders considerable influence over health care decisions affecting us all.

Employers are struggling to develop effective social-media policies. And for good reason—it can be hard to draft a policy that is intended to address issues that are unfamiliar and that arise from technology that many employers don’t quite understand. Which may explain why some employers have been making news headlines with their Facebook and Twitter policies.

On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) announced that it had issued Notices of Inspection (NOIs) to 1,000 employers across the country who are involved with critical infrastructure. The NOIs mean ICE will be auditing the employers' hiring records, specifically their Form I-9s, to determine compliance with the employment eligibility verification laws.

On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced the issuance of Form I-9 Notices of Inspection to 1,000 employers nationwide. The Notices of Inspection require employers to allow ICE to inspect their I-9 forms to determine compliance with employment eligibility verification laws. This is ICE's second round of immigration audits this year. The first round occurred on July 1, 2009, when ICE issued Notices of Inspection to 652 businesses.

Employers may be required to provide seven days of paid sick time per year under a bill introduced in Congress. The measure, titled the Pandemic Protection for Workers, Families, and Businesses Act (H.R. 4092/S. 2790), was introduced by Representative Rosa DeLauro (D-Conn.) in the House and Senator Christopher Dodd (D-Conn.) in the Senate on the heels of another, less expansive, emergency paid sick leave bill proposed earlier. If passed, the Pandemic Protection Act would be a temporary law that expires two years from enactment. Some believe Congress would make it permanent once it has gone into effect.

Under Section 162(m) of the Internal Revenue Code, a publicly held corporation may not deduct in a taxable year more than $1 million of compensation for any key executive officer who is considered a "covered employee,"[1] unless the compensation qualifies as performance-based. As discussed in our prior Alert, on February 21, 2008, the IRS issued Revenue Ruling 2008-13, which provided that compensation will no longer qualify as "performance-based" under Section 162(m) if it may be paid upon a termination of service without cause or a resignation for good reason, or upon a voluntary retirement, and without regard to actual performance. The Revenue Ruling represented a reversal of the IRS' previous position on this issue, but the IRS offered some transition relief by providing that its new position would not apply to either (1) compensation for which the performance period begins on or before January 1, 2009; or (2) compensation that is payable pursuant to the terms of an employment contract as in effect on February 21, 2008 (without respect to future renewals or extensions of such contract, whether automatic or by agreement).

Temporary and permanent visa applicants to the U.S. no longer need to mention HIV infection. Applicants for U.S. permanent residence no longer will be tested for HIV, will be able to obtain more relevant and less cumbersome tuberculosis testing (where available), and no longer will be required to get HPV vaccines. A new medical form is in effect in the U.S. as of 10/14/2009, but further revision will follow.

After months of virtually no movement in the number of H-1B cap cases received by United States Citizenship and Immigration Services (USCIS), the number of cases filed toward the 2010 Fiscal Year (FY 2010) cap of 65,000 surged to 55,600 as of November 13, 2009. Thus, there is a new urgency for employers to quickly file H-1B petitions for any individuals subject to the H-1B cap, including: F-1/J-1 employees (especially those whose employment authorization will expire before September 30, 2010); prospective employees currently outside of the Unites States; and employees currently working in another time-limited visa classification (such as L-1B or TN).

President Barack Obama signed a $42.8 billion fiscal year 2010 homeland security appropriations bill that included a three-year extension of the federal government’s employment verification system – E-Verify. Approximately $137 million was budgeted to operate the system and further improve its accuracy and compliance rates. Although proposals to make E-Verify mandatory were not included in the final bill, there is clear support for the continuation and expansion of E-Verify as evidenced by the recent implementation of the Federal Acquisition Regulation (FAR) requiring certain federal contractors to use the system.

As baseball great Yogi Berra once said – “It’s déjà vu all over again.” The rumblings of major immigration reform have started again. As major initiatives to implement comprehensive immigration reform over the past five years have failed, we do not want to overreact to discussions of possible major immigration reform.

The registration period for the annual immigrant visa (“green card”) lottery will close on November 30. Approximately 50,000 immigrant visas are available pursuant to the “Diversity Lottery.” Persons born in countries that have sent a large number of immigrants to the United States within the past five years are ineligible. This includes persons born in Canada, mainland China, Mexico, the Philippines and the United Kingdom. Applicants also must possess a high school education or equivalent OR possess two years of recent experience in an occupation that requires two years of training or experience to perform.

Today's difficult economic and financial climate has many companies considering various cost-cutting measures, including layoffs, reduced workweeks, pay reductions and voluntary furloughs. These actions raise wage and hour questions that often are overlooked. The unwary employer may reduce payroll costs but wind up with a wage and hour lawsuit as a result. The good news is that a well-informed employer can avoid such risks.

Jackson Lewis has learned that the Office of Federal Contract Compliance Programs will continue using Corporate Scheduling Announcement Letters (CSALs). Patricia Shiu, OFCCP’s new Director, has shared that OFCCP will send CSALs to federal contractors at least for the current OFCCP fiscal year, which runs from October 1, 2009 through September 30, 2010.

The Department of Homeland Security’s Immigration and Customs Enforcement (“ICE”) announced on November 19 that it would begin delivering I-9 audit notices immediately to approximately 1,000 employers across the country associated with critical infrastructure. From initial reports, it appears that the notices are primarily subpoenas for I-9 and supporting documentation.

ICE announced interim results for the 650 I-9 audits it announced in July and announced it has begun 1,000 new audits nationwide with a focus on critical infrastructure and specific leads. Meanwhile, ICE finally revealed its new schedule for assessing fines for "knowing" and paperwork I-9 violations arising from the audits. DHS also announced a plan to encourage employers using E-Verify to publicize that participation to customers.

In the past, the death of the sponsor or "principal beneficiary" in an immigration process usually spelled the end of the alien's ability to immigrate based on that relationship. A new provision, slipped into the conference report of the recent DHS appropriations bill signed by President Obama on October 28, 2009, changes that. Anyone who has suffered the death of a relative through whom he or she hoped to immigrate should immediately contact competent counsel to determine if the opportunity might be salvaged.

As reported on Littler's Global Immigration Counsel Blog on November 5, 2009, the Government of India's (GOI) Ministry of Home Affairs (MHA) released guidance on permissible use of Business Visas and Employment Visas by foreign nationals visiting India. This development has significant implications for multinational corporations (MNCs) sending employees to India on short-term assignments. This article provides an update regarding this uncertain legal development based on feedback from companies whose employees have been directly affected by this situation.

Thanks to Facebook, a Canadian insurance company has revoked the disability benefits of a woman who had been out of work for more than a year and a half due to depression. Former IBM employee Nathalie Blanchard, 29, claims that she called her insurance company when her monthly sick-leave checks stopped coming and was told that she was deemed as able to return to work based on what it had found on her Facebook page.

On November 17, 2009, U.S. Citizenship and Immigration Services (USCIS) released updated information on H-1B non-immigrant visa petitions for Fiscal Year 2010 (beginning October 1, 2009), stating that as of November 13, 2009, it has received 55,600 of the 65,000 H-1B non-immigrant visa petitions needed to meet the H-1B regular cap, and that it has approved all 20,000 visa petitions needed to meet the U.S. master’s degree cap. If USCIS receives any new H-1B petitions filed under the U.S. master’s degree cap, those petitions will now count towards the regular H-1B cap of 65,000. USCIS will continue to accept new H-1B visa petitions filed under both the regular and U.S. master’s degree caps and monitor the number of petitions received, since not all petitions can be approved.

According to Occupational Safety and Health Administration statistics, nearly 20 percent of all OSHA inspections are prompted by a complaint, typically from a current or former employee. Pending legislation that proposes dramatic increases in employee involvement in the inspection and citation process threatens to raise this percentage and increase the likelihood of unfavorable inspection results and more severe penalties, as a direct consequence of individual employee input. Proposed whistleblower protections that protect employees from retaliation if they make a complaint or get involved will likely bolster employee confidence to complain and participate in inspections. This increased employee involvement and a change in whistleblower protections, coupled with the anticipated overall swell in OSHA enforcement activity and increased penalties, may potentially expose employers to significantly greater liability for safety infractions than in the past, as well as create substantial employee relations problems.

Almost every workplace has one - the disgruntled employee who frequently complains to supervisors and co-workers.

An influenza pandemic could have a major effect on the economy and all areas of commerce and employment. Business planning for pandemic influenza is essential to minimize a pandemic's impact. In the event of an influenza pandemic, employers will play a critical role in protecting employees' health, safety, and overall well-being.

The health reform bill that passed the House of Representatives on Saturday, November 7, contains a provision that, if enacted, would limit severely the ability of employers to curtail or terminate retiree medical benefits provided to retired individuals and their beneficiaries. Moreover, the new rule (Section 110 of H.R. 3962) would be effective upon enactment.

A recent Department of Labor Advisory Opinion (Ad Op 2009-03A) discussed the effect of certain language that is often found in brokerage agreements that could be used in connection with Individual Retirement Accounts offered by brokerage firms. The Department advised that the language in question would result a series of "prohibited transactions," which would have the effect of invalidating the customer's IRA.

On November 7, 2009, the U.S. House of Representatives passed its version of health care reform, known as the Affordable HealthCare for America Act (H.R. 3962). As the media has noted, this House vote is merely one step for legislation that may or may not ever be enacted. Similar legislation is pending in the U.S. Senate, and debate is expected to begin on the Senate’s version in the near future. Any legislation that passes the Senate will then need to be reconciled with what the House passed, and then ultimately passed by both chambers and signed by the President before becoming law.

Realizing that many employees are no longer as receptive to the idea of union representation, union organizers have been forced to develop new methods of bringing unions into today’s work force. One commonly adopted method is the “corporate campaign” against the employer. Characterized as a “death of a thousand cuts,” such campaigns can include mass media movements, product boycotts, picketing homes of upper level management, obtaining support from local political and religious leaders and filing charges with governmental entities (OSHA, EEOC, EPA). While some of these devices are meant to expose a company’s weak points, often the goal is to secure the company’s consent to a “neutrality agreement.”

Although the Genetic Information Nondiscrimination Act (GINA) of 2008 took effect on May 21, 2008, the regulations have taken some time for the various Departments of the government to write and develop. Recently, the Internal Revenue Service, though the Department of the Treasury, issued a set of regulations governing subtitle K of GINA, effect the type of questions that employers may ask of employees and potential new hires and candidates for employment. Subtitle K covers group health plan requirements originally regulated under the Health Insurance Portability and Accountability Act (HIPAA).

In order to weather the dire state of the economy, many employers have been forced to eliminate and/or consolidate positions in an effort to reduce costs. Inevitably, when positions are eliminated and employees are laid off, questions arise regarding the legality of the employment decisions. In this regard, far too often, employers’ efforts to defend lay off decisions are complicated by incomplete, inaccurate performance reviews.

Most employers train their managers and supervisors on applicable federal, state, and local anti-discrimination laws. But a much smaller number of employers conduct training on general contract and tort law that may also serve as a basis for employment-related lawsuits. (Lawyers struggle to define precisely what a “tort” is, but it generally means a wrongful act that is not based on a contract.) Because contract and tort claims can prove every bit as problematic — and costly — as anti-discrimination claims, however, employers should incorporate training in these areas of the law into their management training.

Last week, President Obama signed the 2010 National Defense Authorization Act (NDAA) which expands coverage for military exigency leave and military caregiver leave under the Family and Medical Leave Act (FMLA). In 2008, an earlier NDAA signed by President Bush created the categories of military exigency and caregiver leave under the FMLA. The changes in the 2010 NDAA provide exigency leave coverage to family members of those in a regular component of the Armed Forces during deployment to a foreign country. Provisions also expand caregiver leave to assist with treatment for an injury or illness incurred within a five year period before the leave. The changes take effect immediately.

Ah, Facebook in the courtroom. It's a relationship that appears to have a long and tumultuous future ahead.

On October 28, 2009, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act which expands the recently-enacted exigency and caregiver leave provisions for military families under the Family and Medical Leave Act of 1993 (FMLA). The FMLA had been amended earlier in the year to provide "exigency leave" of up to 12 weeks for urgent needs related to a reservist family member's call to active service but was confined to family members of those in the National Guard or Reserves. The new requirement extends that leave to the family members of a member of any regular component of the Armed Forces, and removes the requirement that it be in support of a contingency operation.

The ADA Amendments Act of 2008 (ADAAA) was enacted on September 25, 2008, and became effective on January 1, 2009. This law made a number of significant changes to the definition of "disability." Congress directed the EEOC to amend its ADA regulation to reflect the changes made by the ADAAA. The EEOC approved a Notice of Proposed Rulemaking (NPRM) which was published in the Federal Register on September 23, 2009.

Federal law requires an employer to post notices describing the laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information.

As of Nov. 21, employers are required to comply with yet another law that restricts disclosure of employee health information. The new law will join others already on the books that require HR leaders to exercise discretion and vigilance when it comes to dispersing and safeguarding such information. However, a few misconceptions about medical-privacy laws and the workplace need to be clarified.

Our seminar today on social media for employers was great. Thanks to everyone who attended (live and online with apologies for the short interruption in audio to those online).

E-Verify Program Extended for Three More Years; H-1B Visas Still Available; Holiday Travel Alert; ICE Increases I-9 Audit Actions; Reminder: Federal Contractors/Subcontractors Required to Register for E-Verify; Social Security No-Match Rule Rescinded; USCIS Fraud Unit Site Visits: What H-1B Employers Need to Know; Which Form I-9 Should I Use?

The U.S Citizenship and Immigration Service (USCIS) has commenced an investigation initiative to increase dramatically the number of worksite inspections of the employment of H-1B foreign workers. H-1B visas are commonly obtained by U.S. companies in order to employ skilled foreign workers in specialty occupations. The on-site inspections will focus on employers’ compliance with the employment terms of their foreign workers’ immigration petitions.

A reported 4.1 billion text messages are sent each day in the U.S., according to CITA, the International Association for the Wireless Telecommunications Industry. The popularity of text messaging or "texting" has seen explosive growth in the past few years. But are employers really in touch with this tool and its potential legal risks?

In the next few months, the IRS will launch comprehensive tax examinations of approximately 6,000 random U.S. companies as part of its National Research Program on employment tax compliance. In addition to closing the tax gap, which is the difference between the amount of taxes collected and the amount owed, the IRS hopes the program will help it assess its own performance and generate income. This is one of the agency’s biggest audit campaigns in the area in more than 25 years.

On November 3, 2009, U.S. Citizenship and Immigration Services (USCIS) released updated information on H-1B non-immigrant visa petitions for Fiscal Year 2010 (beginning October 1, 2009), stating that as of October 30, 2009, it has received 53,800 of the 65,000 H-1B non-immigrant visa petitions needed to meet the H-1B regular cap, and that it has approved all 20,000 visa petitions needed to meet the U.S. master’s degree cap. If USCIS receives any new H-1B petitions filed under the U.S. master’s degree cap, those petitions will now count towards the regular H-1B cap of 65,000. USCIS will continue to accept new H-1B visa petitions filed under both the regular and U.S. master’s degree caps and monitor the number of petitions received, since not all petitions can be approved.

As employers transition daily business and human relations practices into the digital world, their electronically stored information increasingly is playing a critical role in the litigation process. In many jurisdictions, however, the rules of discovery (the compulsory disclosure of pertinent facts or documents before trial) have not kept pace. Few, if any, state discovery rules account for information technology systems, computer networks, and personal digital assistants (PDAs). While litigants in the federal court system are guided by specific rules addressing electronic discovery, or “e-discovery,” litigants and judges in state courts often are forced to rely upon rules and principles that pre-date recent technological advancements. In many state courts, a litigant’s e-discovery obligations are guided, on a practical level, by recent judicial decisions.

While a contractor’s responsibility for wage and hour violations can vary depending on the statute(s) involved and the factual circumstances, the FLSA and other statutes help make it clear that a general contractor has some incentive to monitor and try to prevent some of these wage and hour violations. Remember: for liability under the FLSA, you can be liable if you have shown “reckless disregard” for the law. In general, you may first protect yourself by knowing the law. Second, you can prevent some problems through your contract. Third, a general contractor needs to preserve the distinction between its operations and the operations of its subcontractors. Fourth, it is wise for general contractors to make reasonable efforts to have their subcontractors obey applicable wage and hour laws.

Congress Expands Family Military Leave.

Just when employers were starting to get familiar with all of the recent changes to the Family and Medical Leave Act ("FMLA), last week President Obama signed into law yet another expansion of the FMLA military leave provisions. These changes are found in the Fiscal Year 2010 National Defense Authorization Act (H.R. 2647). The new law, which is effective immediately, expands the so-called "qualifying exigency" and "military caregiver" leave provisions under the FMLA.

Although the contentious health care debate remains front and center—both in Congress and in the media—signifi cant labor law changes appear close at hand as well. Do not let the lack of headlines fool you—the Employee Free Choice Act (“EFCA”) remains a priority for the Obama administration and the Democratic-controlled Congress. Informed observers expect that EFCA will be the next hot-button issue taken up by Congress.

As the recession lingers on, employers continue to search for ways to manage operating costs. One common (but increasingly risky) cost-cutting measure is the use of independent contractors in positions that are normally fi lled by employees.

The United States Supreme Court began its latest term on October 5, with fi ve cases on its docket that will directly impact employers. Two of the cases deal with labor arbitration; a third deals with the degree of deference due an ERISA plan administrator; a fourth addresses the amount of time a plaintiff has to fi le a discrimination charge; and the fi nal one involves allegations of whistle-blowing and the attorney-client privilege.

As the law struggles to keep pace with the frenetic world of online networking, employers must be mindful of the risks they face by allowing employees to access social networking sites such as Facebook, Twitter and LinkedIn. Using these social networking sites to “check up” on an employee, identify or assess potential employees, or simply “friend” or link up with a subordinate entails risks.

With examples of corporate malfeasance dominating the news, blowing the whistle is more popular than ever. Retaliatory discharge lawsuits brought by whistleblowers, however, are nothing new. Such claims have an understandable jury appeal; nobody seems surprised that a company, or a rogue manager, strikes back after accusations of wrongdoing. Sound policies and conscientious compliance departments can go a long way towards minimizing liability for whistleblower claims.

Although many employers today are warily watching the legislative horizon for laws creating new protected classes (sexual orientation, whistleblowers) and expanding limitations periods (Ledbetter), they would do well to remember that increasing numbers of employees are turning to defamation claims to redress damage allegedly done to their reputation by discipline and discharge decisions. Because these claims are often fi led in state court, where the judges are often more hesitant to grant summary judgment, the juries typically more generous, and the damages uncapped, there is signifi cant risk for employers.

For the second time in the last two years, Congress has expanded the scope of the Family and Medical Leave Act (“FMLA”). On October 28, 2009, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 (the “Act”).

The U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice (“DOJ”) will be hosting a town hall meeting in Chicago to invite comments on the proposed regulations to the ADA Amendments Act of 2008 found at www.eeoc.gov. The agencies are encouraging input on the regulations from the perspectives of both the business and disability advocacy communities.

Panic or pandemic? Right now, nobody can say for certain what course the H1N1 virus will take in the upcoming months. It may end up like the Bird Flu scare, having little discernible impact. Or, our worst fears may be realized with a widespread pandemic and disruption to our daily lives. One thing is certain, we are already feeling the effects with mass school closings, long lines for flu shots, and chaos in many pediatricians’ offices.

BYU researchers claim that improved morality can be linked to Windex. No kidding. Kate Liljenquist and her team tested individuals’ reactions when introduced to a room that smells like Windex, the popular blue window cleaner.

If you're like other employers, you feel pressure to cut costs while you wait out the economic recovery. But, if you see layoffs as an option in responding to that pressure, you must be careful. A single misstep can subject you to potentially ruinous claims from departing employees.

Plan sponsors should be aware of upcoming deadlines for adoption of amendments to their qualified retirement plans. Certain amendments are required by the end of the 2009 plan year (December 31, 2009 for calendar year plans), while others are required by the plan sponsor's 2009 tax-filing deadline. In some cases, there may also be amendments required to be adopted by January 31, 2010.

The U.S. Citizenship and Immigration Service (USCIS) Office of Fraud Detection and National Security (FDNS) has initiated an H-1B audit program to assess employer compliance with H-1B requirements. FDNS will make unannounced Administrative Site Visits to H-1B employers and their clients, whereby the investigator will collect information regarding the legitimacy of an employer's business and the accuracy of the representations made in filed H-1B petitions. The purpose of this audit program and the associated site visits is to detect, deter, and combat immigration benefit fraud. USCIS has already sent tens of thousands of cases to FDNS, so it is important for H-1B employers to know what to expect and how to respond if FDNS comes knocking.

As concern over H1N1 and influenza-related illnesses continues to spread, legislation that would require employers to provide up to five days of paid sick leave per year to workers afflicted with influenza or other, similar contagious illness has been introduced in the U.S. House of Representatives. The bill applies to employers with 15 or more employees where workers comply with the employer’s directive to go home or stay home from work because of a contagious illness. The proposed legislation, titled the Emergency Influenza Containment Act (H.R. 3991), was introduced by House Education and Labor Committee leader Rep. George Miller (D-Cal.) and Workforce Protections Subcommittee leader Rep. Lynn Woolsey (D-Cal.).

On October 28, 2009, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act (H.R. 2647). Among other things, the new law includes an expansion of the recently-enacted exigency and caregiver leave provisions for military families under the Family and Medical Leave Act of 1993 (FMLA). The legislation does not include an effective date, suggesting that it took effect immediately upon the President's signature.

A new federal posting requirement becomes effective November 21. The Equal Employment Opportunity Commission has revised its "Equal Employment Opportunity is the Law" poster. This new version reflects current federal employment discrimination law, including the Americans with Disabilities Act Amendments Act of 2008. The poster also was revised to add information about the Genetic Information Nondiscrimination Act of 2008, which also is effective November 21, 2009. The revised poster also includes updates from the Department of Labor.

If you’re an associate at the law firm Quinn Emanuel, the answer is “very, very often.”

Over the last year, dealers have devoted most if not all of their attention to keeping their dealerships afloat. They've spent time cutting staff, combining job duties and slashing costs as they watched extraordinary events unfold in the automobile industry. That has not left much time to study what else is going on around them.

The Federal Trade Commission (FTC) has again delayed enforcement of the Red Flags Rule. Enforcement was previously delayed until November 1, 2009, but has now been delayed until June 1, 2010.

The Equal Employment Opportunity Commission (EEOC) has revised its "Equal Employment Opportunity is the Law" poster. The new poster reflects the requirements of the Genetic Information Nondiscrimination Act ("GINA"), which take effect on November 21, 2009, and prohibit employers from discriminating against applicants and employees based on genetic information for employment purposes and health insurance. The new poster will also reflect the changes made by the Americans with Disabilities Act Amendments Act of 2008, which took effect on January 1, 2009.

On September 15, 2009, Facebook announced that it served 300 million users worldwide. By comparison, on October 1, 2009, the United States Census Bureau's website indicated that the population of the United States was approximately 307.5 million.

With the advent of the H1N1 flu, businesses are preparing for the worst, and hospitals are not exempt from this preparation. While other employers will practice "social distancing," or keeping away from other people's germs, hospitals will be treating the worst H1N1 cases, exposing employees to the virus. Hospitals must have a continuity plan in place so that the facility can operate as normal. Pandemics can create staff shortages due to absences of sick employees and employees taking time off to care for sick family members. Suppliers may be short staffed too, and deliveries of products may be interrupted.

Using scare tactics to drum up fear has long been used by unions to generate unhappy employees, and to provide a good environment for unionization. Some unions are now using the H1N1 virus, or swine flu, to create controversy, rather than unifying and assisting hospitals and other industry employers in preparing for a possible pandemic. Finding a topic to exploit with workers is nothing new, and using a topic that scares many and can create a panic is just icing on the cake.

The U.S. Citizenship and Immigration Services (USCIS) recently started to conduct worksite visits of U.S. companies and other entities that employ foreign workers through the H‑1B and L‑1 programs. The USCIS’s Division of Fraud Detection and National Security (FDNS) has engaged outside contractors to undertake these investigations to verify information in the employer petition submitted to the government. This initiative is funded through the $500 fraud fee that petitioning employers pay with the initial petition on behalf of an H-1B or L-1 worker.

On October 29, 2009, we alerted schools to the looming November 1, 2009 deadline of the Federal Trade Commission's Red Flags Rule. This rule was implemented by the Federal Trade Commission (FTC) and mandates that financial institutions and creditors with covered accounts develop and implement a written program that detects, prevents, and mitigates identity theft.

On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 (the "NDAA"), which, among other things, expands the scope of the provisions of the Family and Medical Leave Act (FMLA) pertaining to leave for qualifying exigencies and military caregiver leave. Specifically, the NDAA now permits family members of active duty service members to take leave for a qualifying exigency. Previously, only family members of National Guard and Reservists called to active duty in support of a contingency operation were permitted to take leave for a qualifying exigency. The NDAA also extends the scope of military caregiver leave to families of certain veterans, who previously were not covered by the provision. It also permits military caregiver leave for serious injuries or illnesses that are the result of pre-existing conditions that were aggravated by service while on active duty.

Performance evaluations and performance improvement forms, such as warnings, receive more scrutiny during employment litigation than during employment. When the employment relationship has decayed to the point that a lawsuit occurs, employment lawyers scour annual reviews, disciplinary records, and contemporaneous supervisors’ notes for evidence.

The Top 100 Employment Law Blogs is back and updated for 2009. Ok, so it’s the Top 110 this year.

The current financial crisis and economic downturn have caused many employers to implement lay-offs and reductions in force. In an effort to reduce the harsh economic impact of a sudden job loss, and in an effort to mitigate the negative employee relations issues that can result from downsizing, many employers offer affected employees separation pay or severance. Many of these arrangements are not formalized and simply consist of continuation of payroll for a specified period of time following termination of employment.

On October 29, 2009, Harry Hoglander and Linda Puchala, two members of the National Mediation Board (NMB), submitted a Notice of Proposed Rulemaking with the Federal Register. As we noted in our October 30, 2009 Legal Alert, the proposal would result in the outcome of union elections being determined by a majority of the employees who vote, rather than requiring a majority of the employees in the craft or class to vote for representation, as currently is the case. The proposal would also change the election ballot by providing employees the option to register a "no" vote. Please click here to view a copy of the Notice of Proposed Rulemaking.

What’s up with EFCA? Anybody’s guess; Constangy to argue 2-member Board case at Supreme Court; Handbook rule limiting media releases unlawful; More on the AFL-CIO convention; HERE goes there; Have you hugged your nurse today? California leads the way – for better or worse; “Hey, kids – let’s rap! Unions are groovy!”

When it comes to resumes, I’m not the only one who believes that looks really do matter. Admittedly, I am more particular than most when it comes to the appearance of documents. But typeface is one aesthetic upon which I do not stand alone.

Last week, I posted twice on the recent controversy surrounding service animals. (See Table for Two, Please--Me and My Seeing-Eye Horse; Quit Monkeying Around: Court Rules Monkey Is Not a Service Animal). Apparently, I’m not the only one who finds the issue interesting.

With a clear conflict among the federal Circuit Courts and with the National Labor Relations Board and employers calling to have the Board quorum issue settled, the United States Supreme Court has agreed to decide whether the NLRB is authorized to render decisions while three of its five seats remain vacant. The Court granted certiorari to the Board’s September 29 request to determine whether the National Labor Relations Act authorizes the agency to act with only two members if the Board previously delegated its full powers to a three-member group that included the two remaining members.

The H1N1 virus, commonly known as the swine flu, has grabbed headlines and worried millions. The federal government has taken an active role in helping to educate the public regarding prevention and containment of the flu. Most employers have felt the impact of H1N1, and even more are wondering the extent to which their operations will be affected as we approach the heart of the flu season. As a result, employers are preparing pandemic flu plans and taking precautions to prevent the spread of the H1N1 virus.

For the past several years, the business community's attention has been focused almost exclusively on federal legislation inaccurately named the "Employee Free Choice Act" (EFCA). That legislation would radically overhaul labor-management relations by substituting "card check" (employees' signatures on union cards) in place of government-protected secret ballot union representation elections, and by compelling arbitration of first contracts written by federally-appointed arbitrators where the union and the employer fail to agree after 120 days of bargaining. EFCA also contains anti-employer penalties and fines of $20,000 per violation and triple back pay, as well as federal court injunctions.

In early October, the U.S. Supreme Court began hearing oral arguments in the 2009-2010 term. There are currently seven cases on the docket that involve employment and labor related issues or are likely to impact these areas. One of the most notable of these will decide how much time plaintiffs have to file a lawsuit when they believe they have been unfairly penalized by hiring tests. Other cases will resolve issues involv-ing an alleged whistleblower, pension benefits, race discrimination, and labor arbitration.

U.S. Immigration and Customs Enforcement (ICE) launched a nationwide I-9 audit initiative on July 1, 2009, issuing Notices of Inspection (NOIs) to 652 employers (see the ICE press release). This action confirms the new method of enforcement promised by representatives of the Obama Administration. In April 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano indicated that ICE would focus its worksite enforcement program resources on the criminal prosecution of employers that knowingly hire illegal workers and that ICE would use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.

The wage and hour laws are outdated and compliance is exceedingly difficult in light of the way in which most hotels and restaurants are required to operate. But, you already knew these facts. Recent tip credit and tip pooling cases continue to highlight the problems and we will be addressing tipped employee issues in this and future editions of the Hospitality eAuthority.

The Internal Revenue Service (IRS) maintains a program known as the Employee Plans Team Audit (EPTA) program, under which random audits are used to discover, and remedy, common plan problems and mistakes, and to assist retirement plan sponsors and administrators in identifying those issues. Recently, the IRS updated its list of "common plan mistakes" that have been found during EPTA audits, as well as a sample of a questionnaire used by EPTA auditors to test the system of internal controls utilized by a plan. The EPTA Program is designed to deal with large retirement plans, i.e., those covering at least 2,500 participants, but having an insight into the EPTA procedures enables administrators of plans of all sizes to avoid most common errors in plan administration. The EPTA materials can also be utilized to develop and conduct self-audits and to correct any mistakes thereby identified.

On October 29, 2009, two members of the National Mediation Board (NMB), Harry Hoglander and Linda Puchala, submitted a Notice of Proposed Rulemaking for publication in the Federal Register, proposing to change the "majority of the craft or class" voting rule that the NMB has used throughout its 75-year history. The proposal would result in the outcome of union elections being determined by a majority of the employees who vote, rather than requiring a majority of the employees in the craft or class to vote for representation, as currently is the case. The Chairman of the NMB, Elizabeth Dougherty, dissented from the proposal.

A new safety compliance program for the Nation’s trucking and busing employers, and the drivers they employ, will result in far more inspections — and likely more violations and penalties — than ever before, when the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration implements its “Comprehensive Safety Analysis 2010” (CSA 2010) in July 2010. FMCSA touts CSA 2010 as a “new national safety initiative to more effectively identify and quickly intervene with large truck and bus drivers and carriers who are not complying with safety rules.” The new program will result in more “interventions,” i.e., more warning letters, roadside inspections, on-site inspections at a carrier’s place of business, as well as more serious actions, such as notices of violations, notices of claims (penalties) and operations out-of-service orders.

Jackson Lewis has learned that the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has made several key leadership changes at the Agency:

On October 28, 2009, the President signed the 2010 National Defense Authorization Act (NDAA) that included provisions expanding Family and Medical Leave Act military family leave benefits. The 2010 NDAA extends FMLA exigency leave coverage to family members of active duty members of the Armed Forces. It also expands the potential period during which FMLA caregiver leave might be provided. Now, eligible employees may take FMLA caregiver leave for up to five years after the veteran ends active duty. The expanded FMLA rights are effective immediately. Employers should amend their FMLA policies to reflect these expanded military family leave rights.

Faced with an article on new employee orientation, the reader may have one or more of the following thoughts: "Has this writer read a newspaper in the last year? Isn't he aware that nobody in America is hiring? In fact, we're not even sure if we won't need to have more layoffs just to get through this economic whirlpool. Any article about new employee orientation is grossly premature and impossibly out of touch with reality."

We all know that union membership has been on the decline for decades. But with a new administration in the White House, and Democrat majorities in the House and Senate, employers should expect significant labor law reforms and dramatically different enforcement strategies that will make it easier for labor unions to organize employees. In fact, hopeful labor leaders proclaim that the expected changes could add up to 1.5 million new members per year for the next 15 years.

The Employee Free Choice Act continues to languish amid partisan squabbles in Washington, which means that its controversial elements such as card check and mandatory interest arbitration are unlikely to see the light of day this year. But as the discourse continues on Capitol Hill, attention is now shifting to the anticipated composition of the National Labor Relations Board (NLRB), which is responsible for administering national labor policy pursuant to the National Labor Relations Act.

On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84) (NDAA). The NDAA includes provisions that expand the two types of military-related leave that became available under the Family and Medical Leave Act (FMLA) in January 2008: "qualifying exigency" leave and military caregiver leave. Although this portion of the NDAA does not have an effective date, according to the staff of the Subcommittee on Military Personnel of the House Armed Services Committee, the NDAA took effect when President Obama signed it.

As of November 21, 2009, covered employers will be required to post information on the ban on employment discrimination based on genetic information contained in the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA prohibits employers from discriminating against applicants and employees based on genetic information. The law also restricts employers' acquisition and disclosure of genetic information. The employment provisions of GINA apply to private and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs. They also cover Congress and federal executive branch agencies.

Many schools have been contacted by vendors advising that the school must set up an identity theft program to comply with the new federal regulations called the "Red Flags Rule." This rule was implemented by the Federal Trade Commission (FTC) and mandates that financial institutions and creditors with covered accounts develop and implement a written program that detects, prevents, and mitigates identity theft.

The Equal Employment Opportunity Commission has revised the workplace notice that employers covered by federal anti-discrimination laws must post to reflect the requirements of the new Genetic Information Nondiscrimination Act and the changes made by the ADA Amendments Act.

Less than a year after the Department of Labor issued regulations implementing and clarifying new forms of military-related FMLA leave, Congress has approved measures that will substantially expand the scope of these provisions. On October 28, 2009, President Obama signed into law the 2010 National Defense Authorization Act, which among other things extends eligibility for "qualifying exigencies" and military caregiver leave to a larger population of employees. The legislation does not include an effective date, suggesting that it took effect immediately upon the President's signature.

IRS audits that cover compliance with Section 409A of the Internal Revenue Code seem a near term certainty.[1] As a result, employers should take steps now to ensure that their deferred compensation arrangements are in compliance with the documentary and operational requirements of Section 409A. Adverse tax consequences under Section 409A may include premature taxation, an additional 20% federal income tax (and possibly an additional state tax equivalent, as is the case in California), and an interest-charge tax.

Federal law requires postings in workplaces informing individuals of their rights under federal employment discrimination laws. The Equal Employment Opportunity Commission has published a notice revising its “Equal Employment Opportunity is the Law” poster to reflect changes required by the employment provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA), which become effective on November 21, 2009. The new poster can be found at http://www.eeoc.gov/posterform.html.

Twenty-five workplace fatalities occurred in Nevada from January 2008 to June 2009. In the wake of those deaths, the Nevada Occupational Safety and Health Administration (“Nevada OSHA”) came under media fire regarding its investigations into the deaths as well as two complaints to the federal Government. The “Complaints about State Program Administration,” regarding a fatality at one Las Vegas casino and a complaint investigation at another, were filed with the U.S. Department of Labor, Occupational Safety and Health Administration (“OSHA”). As a result of increasing concerns about the Nevada OSHA’s state plan performance, OSHA conducted a study of the agency. The 80-page report, released on October 20, 2009, details serious deficiencies at Nevada OSHA and outlines numerous recommendations for improvement. In addition, the DOL stated that it will increase its oversight and monitoring of all state OSH programs.

The end of the calendar year is soon approaching. For sponsors of qualified benefit plans, this means that plan amendments must be adopted and certain notices may need to be distributed. Below is a summary of the major amendments and notices that apply to most qualified retirement plans. The IRS has also released the new retirement plan limits for 2010 that are available here. During the year end flurry of activity, employers need to focus on these deadlines, notice requirements and new limits. If employers have not yet been contacted by their plan's service provider, employers should take action now to avoid being in noncompliance.

The 2008 term of the United States Supreme Court did not see as many major labor and employment law cases as the previous term. Even so, a number of high-profile and otherwise significant employment cases made their way onto the court's docket. The following is a summary of the major cases decided in 2009 from the Court's 2008 term.

With a struggling economy, many businesses may be tempted to classify their workers as independent contractors rather than employees because of the benefits this classification provides to employers. For example, many federal antidiscrimination laws do not apply to independent contractors, since they only cover "employees." Additionally, a company may be shielded from certain other types of liability to which it would be subject if the individual was an employee.

The EEOC recently issued guidance directed at helping employees understand waivers of discrimination claims included in employee severance agreements. Although the information provided in the guidance is not new, it is timely as U.S. employers continue to face layoff decisions in the current economic climate.

The Office of Drug and Alcohol Policy Compliance of the U.S. Department of Transportation (“DOT”) has reminded the regulated public that the use of “medical marijuana” pursuant to certain state laws does not excuse a transportation employee’s positive drug test result, despite a Government decision to relax federal prosecutions for such use.

Each year an average of 36,000 people die and over 200,000 people are hospitalized in the United States due to flu-related complications.1 In addition to seasonal flu, an outbreak of H1N1 influenza (often referred to as "Swine Flu") has greatly increased the number of people at risk this flu season.

Service animals provide assistance to persons with disabilities in a number of ways. Last week, I wrote about the seeming confusion surrounding “non-standard” service animals, like a boa constrictor and a “seeing-eye horse.” The U.S. DOJ published proposed revisions in an attempt to clarify what animals do and do not qualify as service animals for purposes of the ADA. The proposed regulations relating to service animals (PDF) would exclude the boa constrictor (and other snakes and reptiles), as well as rabbits, farm animals, ferrets, and wild animals, including monkeys born in captivity. Explaining the perceived need for the changes, the DOJ stated:

The Equal Employment Opportunity Commission ("EEOC") has issued technical assistance guidance to help employers prepare for a potential pandemic of the H1N1 flu ("the swine flu"), without running afoul of the Americans with Disabilities Act ("ADA"). When employees become ill or travel to parts of the world affected by certain illnesses, employers are often left questioning how they may proceed to protect the workplace and its employees, without violating individual rights.

With an effective date of September 30, 2009, OSHA’s one-year national emphasis program (NEP) on recordkeeping will target employers with lower than average injury and illness rates in historically high-rate industries. Based on academic studies released within the past few years, which suggest workplaces underreport injuries and illnesses, OSHA will be conducting what amounts to a comprehensive audit of certain employers’ business records. OSHA compliance officers are instructed to review not only employers’ OSHA Forms 300, 301 and 301A, but medical records, workers’ compensation records, insurance records, payroll/absentee records, and if available, company safety incident reports, company first-aid logs, alternate duty rosters, and disciplinary records pertaining to injuries and illnesses. Moreover, if an employer has in place a policy that may have the effect of discouraging recording of injuries and illnesses, such as an awards program, OSHA will request a copy of the employer’s policy.

Wondering what it is okay to say and do with regard to employees who have, or might have, the flu? The EEOC has stepped up with information to clarify with information about flu-related issues based on the principles of the Americans with Disabilities Act, or ADA. The World Heath Organization posts periodic updates on the status of the H1N1 pandemic, which has been in phase 6 (sustained community-level transmission of the virus is taking place in more than one region of the world) since June 2009. Delaware is one of the states that the United States Center for Disease Control currently considers to be experiencing a “widespread” H1N1 flu outbreak.

No-Match Rule Officially Rescinded (But Now What?); E-Verify Updates - Federal Contractor Regulation, Nebraska Law; Enforcement Update – H-1B Site Visits; Green Card Lottery Registration Underway.

The Internal Revenue Service has announced its cost-of-living adjustments applicable to dollar limitations for retirement plans and Social Security generally effective for Tax Year 2009 (see IR 2009-94).

Marking the federal government’s first move from a “recommendation” to a “requirement” in dealing with H1N1, the Occupational Safety and Health Administration (OSHA) has announced that it will issue a compliance directive to enforce the Centers for Disease Control and Prevention’s Interim Guidance on Infection Control Measures for 2009 H1N1 Influenza in Healthcare Settings, Including Protection of Healthcare Personnel.

The Americans With Disabilities Act’s (“ADA”) employment provisions became operative in 1992. Since then, the Equal Employment Opportunity Commission (“EEOC”) has issued hundreds of pages of regulations, technical assistance, and whitepapers. The courts have issued countless opinions interpreting the act. And employers, consultants, and doctors have implemented policies and protocols for dealing with applicants’ and employees’ requests for reasonable accommodation.

The recent spotlight on David Letterman’s alleged affairs with female subordinates is a useful reminder for careful employers: create a systematic plan for dealing with workplace harassment and romantic relationships. And then follow it.

The Americans With Disabilities Act (ADA), was amended in September 2008 by the ADA Amendments Act of 2008 (ADAAA), which took effect on January 1, 2009. The ADAAA emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis. In other words, the Amendments Act expanded who qualifies as “disabled” for the purposes of the ADA’s protections. The new law makes it easier for an individual to establish that he or she has a disability within the meaning of the ADA.

Virtually everyone has a camera phone these days, making it easy for bored or disgruntled employees to film what they perceive to be humorous pranks and disseminate the video for the world to see in a matter of a few minutes or even seconds. Unfortunately, what one person considers a harmless prank can cause a disastrous amount of damage for brand owners, wiping out the benefit of millions of dollars in brand advertising and years of goodwill.

Employers that prohibit or limit the hire of persons with felony convictions may be unknowingly in the cross hairs of the EEOC for violating Title VII of the Civil Rights Act of 1964 (Title VII) on the theory that failing to hire felons has a disparate impact on African Americans and Hispanics. The EEOC is currently in the process of revising its regulations regarding felony convictions.

Since its passage in 1990, no other federal employment law has engendered more celebration or controversy than the Americans With Disabilities Act. Like the unruly teenager it is, you can't turn your back on the ADA for a moment without the Act reasserting itself. This past month was no exception.

Many employers prefer the speed, reduced cost and procedural simplicity promised by arbitrations when resolving disputes with current or former employees. After briefly encouraging this form of alternative dispute resolution as an alternative to litigation, courts have increasingly stepped up their oversight of arbitration agreements and have begun striking agreements deemed too one-sided for employers. Accordingly, employers who attempt to mandate arbitration of employment claims should review their agreements in light of some recent judicial guidance.

In LVRC Holdings LLC v. Brekka (September 15, 2009), the Ninth Circuit Court of Appeals served up a warning for employers to review their existing Confidential Information policies or risk finding themselves unable to protect their most valuable information, including trade secrets. In Brekka, an employee e-mailed company information to his personal e-mail account shortly before his departure. He later used that confidential information to further his own business interests. Unfortunately, because the employee was authorized to access his employer's computer, as well as the information he emailed to himself, the Court held that these otherwise disloyal acts did not violate the federal Computer Fraud and Abuse Act designed to protect employers from this very behavior. Had the employer developed and circulated a computer policy prohibiting access to company files for personal use, the Court noted, such behavior would have violated the law.

We have all seen the headlines. One of President Obama's first acts after taking office was to sign into law the Lily Ledbetter Act, which effectively reversed a United States Supreme Court decision involving the timing of lawsuits under the Equal Pay Act. Employers also know that unions are flexing their muscle after years of support of Democratic candidates and unprecedented support of President Obama's campaign for President. The unions' goal is the passage of the Employee Free Choice Act, otherwise characterized as the "card check" legislation, because it eliminates secret ballot elections now required to unionize an employer.

Flu season is here and cases of the H1N1 virus are on the rise; many health care and government officials have predicted the possibility of a pandemic. Even without a pandemic, there are increased employee illnesses and resulting absences to deal with, concerns about work coverage issues, and fears of potential exposure at work. Employers should work to address these concerns.

Since its passage in January 2009, the Ledbetter Fair Pay Act ("the Act") has created as many questions as it has answered, including whether it applies to disparate impact cases (that is, cases involving claims that an employment practice or policy that appears neutral on its face actually affects a protected group more harshly than an unprotected group) and whether the courts will extend coverage beyond cases of pay discrimination. The U.S. Supreme Court has decided to hear a case that may give it the opportunity to answer these two questions.

There are more than 300 million Americans are Facebook users. Facebook users who are looking for work are having their profiles searched by the 45% of employers who are hiring as part of their background-search process.

The Internal Revenue Service has announced the 2010 limits that affect the operation of tax-qualified retirement plans, including 401(k) plans, and certain other types of employee benefit plans. Because the cost-of-living index used to determine the annual adjustments decreased over the past twelve months, there will be no adjustment made to the limits. This means that the 2010 limits remain at the same dollar amounts as the 2009 limits. Please see the accompanying table for the limits that are effective January 1, 2010.

The U.S. Department of Labor is observing the week of October 19-25, 2009, as its fourth annual Drug-Free Work Week and encourages employers and employees across the country to participate. The purpose of Drug-Free Work Week is to educate employers, employees and the general public about the importance of being drug-free as a component of improving workplace safety and health and to encourage employees with alcohol and drug problems to seek help. All employers should remind employees about company policies addressing drug and alcohol use at least once a year, and Drug-free Work Week is a good time to do so. The Department of Labor encourages employers to do some or all of the following things during Drug-Free Work Week:

With Election Day this upcoming Tuesday, November 3, 2009, it is a good time for employers to review their policies and practices regarding granting employees time off to vote and related issues. Thirty-one states and Puerto Rico obligate employers to provide employees time off to vote if certain prerequisites are met and impose civil and/or criminal penalties for non-compliance. Some of these jurisdictions even require such time to be paid for non-exempt employees, require employers to post notices advising employees of their rights, or both.

Employers providing personal data assistants (“PDAs”), such as BlackBerries, as well as cell phones and pagers, to non-exempt employees may face unexpected costs: liability for wages and overtime. A recent increase in complaints filed on behalf of non-exempt workers illustrates potential risks for employers who provide PDAs to workers. The complaints seek wages and overtime pay for workers’ time spent reviewing and responding to text messages, e-mails and other communications received through company-issued PDAs.

Maria Shriver is doing more than violating her state’s ban on cell phone use while driving this days. Perhaps her ambitious project is in part what compels her need to multi-task in the car (but please invest in a hands-free device, Maria, so the press can focus on your other admirable pursuits!).

I love animals. There’s no denying it. But, despite my passion for the Wild Kingdom, the stories of “unusual” service animals have me a bit perplexed. Over the last year or so, I’ve seen several stories in the news about individuals who claim that their pets should be considered service animals, thereby enabling them to take the animals places pets normally would not be allowed.

The Internal Revenue Service has announced cost-of-living adjustments (which are few) to certain employee benefit plan dollar limitations for 2010. The 2010 limitations are as follows:

The Solicitor General of the United States, on behalf of the National Labor Relations Board, has petitioned the United States Supreme Court to settle the dispute among the federal Circuit Courts as to whether the NLRB is authorized to render decisions while three of its five seats remain vacant. The Board on September 29 asked the Court to determine whether the National Labor Relations Act authorizes the agency to act with only two members if the Board previously delegated its full powers to a three-member group that included the two remaining members.

In one of the most significant rulemaking efforts in over a decade, OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.

Title I of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) prohibits discrimination based on genetic information in group health plans and health insurance issuers. The Secretaries of Labor, Treasury and Health and Human Services have issued regulations (“Regulations”) to implement Title I of GINA which, among other things, affect wellness programs that seek information about participants’ family history and reward those who provide that information. (These regulations can be found at http://www.dol.gov/federalregister/HtmlDisplay.aspx?DocId=23182&AgencyId=8&DocumentType=2.) While GINA is effective for plan years beginning after May 21, 2009, the Regulations apply to group health plans and health insurance issuers for plan years beginning on and after December 7, 2009.

The Internal Revenue Service (IRS) has announced cost of living adjustments to the dollar limitations applicable to various retirement plans for 2010. As a result of zero increases (or even decreases) in the applicable cost of living indices, virtually all of the limitation amounts will remain unchanged from their 2009 levels.

Social networking is a phenomenon that has taken over with shocking speed. The growth in popularity of sites like Facebook and microblogging application, Twitter, has exploded. (Facebook reported that it has 300 million users as of last month!) The problem with anything that grows so fast, though, is the growing pains that come with it.

Workplace Prof Blog reports that, last week, Congress designated October as National Work and Family Life Month. The primary force behind the measure was the Alliance for Work-Life Progress, and the purpose was to encourage employers and employees to seek flexible work environments to better balance the needs of work and families.

What Can Employers Learn From Obama and the Nobel Peace Prize?

Companies, large and small, are announcing layoffs everyday. According to the Department of Labor’s Bureau of Labor Statistics (BLS), there were 2,227 mass layoff actions in January 2009 involving over 230,000 workers. If you are paying attention to layoff trends, however, you will notice a growing favor for alternatives to layoffs. Thinking creatively has always been a business necessity and in this economic environment it is imperative for companies to come up with new ways to cut labor costs while maintaining a competitive edge. This article reviews some alternatives to layoffs and how these alternatives can have a greater impact on the bottom line than traditional reductions in force.

Lawmakers in both the U.S. Senate and House of Representatives have introduced legislation to overturn a Supreme Court decision that has been criticized by politicians and advocacy groups as making it more difficult for plaintiffs to prevail on age discrimination claims.

In this attorney-authored article, Marianela Peralta of Littler's Washington, D.C., office discusses wage-related obligations faced by companies doing business with the federal government in the wake of the American Recovery and Reinvestment Act (ARRA) of 2009. Peralta explains the types of contracts subject to prevailing wages, the risks associated with nonpayment, and what employers can do to minimize such risks.

On October 1, 2009 the Occupational Safety and Health Administration released its plan for implementing its National Emphasis Program (NEP) to assess the accuracy of injury-and-illness data recorded by employers. The NEP was enacted in response to several studies, including one by the Government Accountability Office (GAO), that have claimed that there exists a serious problem of underreporting workplace injuries and illnesses on the OSHA Form 300. Specifically the NEP will focus on auditing employers' reports of workplace injuries and illnesses to identify instances of underreporting in high-hazard industries.

Generally speaking, employers are not familiar with the responsibility and potential liability for failing to notify employees of their right to convert group life insurance coverage to an individual life insurance policy upon termination of employment, or their right to apply for a waiver of premiums if they are disabled and absent from work. Within the past few years, there has been a wave of litigation brought by former employees and their beneficiaries complaining about the loss of group life insurance coverage due to misrepresentations made by employers about their group coverage and the failure of employers to inform terminated employees about their rights under the group life insurance plan documents.

On August 25, 2009, the Federal Trade Commission (FTC) issued its final health breach notification rule. It was effective September 24, 2009; however, the FTC will refrain from enforcement action for breaches discovered before February 22, 2010. The rule requires vendors of personal health records (PHRs) and related PHR entities to notify individuals when the security of their unsecured, individually identifiable health information has been breached. A third-party service provider of PHR vendors that experiences a breach must also notify its vendor or related entity of a breach. In addition to notifying the individual whose information has been breached, these entities must notify the FTC and, in some cases, the media. A violation of these new breach notice requirements is considered an unfair or deceptive act or practice in violation of a regulation under 15 U.S.C. 57a(a)(1)(B) of the Federal Trade Commission Act.

26 questions and answers about H1N1 and workplace law.

Outlining proper steps.

The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (the "Mental Health Parity Act"), passed last year, requires group health plans for businesses with more than 50 employees to provide any mental health or substance use disorder benefits they offer on par with other medical or surgical benefits. That is, the Mental Health Parity Act prohibits such group health plans from being more restrictive with regard to any mental health and substance use disorder benefits offered than the medical and surgical benefits being offered. Employers are not required to offer mental health or substance use disorder benefits. But if they do, parity among these benefits is required in regard to financial requirements and treatment limitations, annual and lifetime dollar maximums, and out-of-network providers.

Plagued by controversy and legal battles, the Department of Homeland Security (DHS) is rescinding the 2007 No-Match Rule in a regulation to be published in the October 7 Federal Register.

The Department of State recently announced instructions for the fiscal year 2011 (FY 2011) diversity lottery for permanent residence (“green card”). The application period begins at 12:00 p.m. Eastern Daylight Time (EDT, GMT –4) on Friday, October 2, 2009 and will end at 12:00 p.m. Eastern Standard Time (EST, GMT –5) on Monday, November 30, 2009. Applications are submitted via the Department of State’s electronic registration system at http://www.dvlottery.state.gov/. Paper applications will not be accepted.

Many employers with wellness program that use health risk assessments will have to modify their assessments to avoid running afoul of the Genetic Information Nondiscrimination Act of 2008 (GINA), under final interim regulations set to appear in the Federal Register on October 7, 2009.

The Department of Homeland Security (DHS) has formally withdrawn its Social Security "no-match" regulation, promulgated back in 2007. The no-match regulation set forth a "safe harbor" for employers who receive letters from the Social Security Administration (SSA) stating that an employee's Social Security Number (SSN) does not match the agency's records. The safe harbor rule required employers to take certain steps to resolve the discrepancy within a certain period of time or face liability. Shortly after being issued in 2007, the no-match regulation was challenged in court, subject to an injunction and ultimately never implemented. As of October 7, 2009, the rule was formally rescinded.

The 2009-2010 influenza season officially began October 4, 2009, and the outlook is grim. According to the Centers for Disease Control and Prevention, as of the end of September, 27 states are reporting widespread influenza activity (the CDC’s highest level). They are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, Tennessee, Virginia, Washington, and Wyoming. The CDC says any reports of widespread influenza activity in September are very unusual.

The congressional conference committee has agreed on the the appropriations bill for the Department of Homeland Security for the fiscal year already begun and ending September 30, 2010. It continues to expand enforcement and verification funding and extends for three years the otherwise expiring provisions for "EB-5" investor green cards, permanent paths for religious workers, and home residency waivers for doctors serving rural areas. The bill will surely be enacted by both houses of Congress and signed by the President in the next few weeks.

In August 2009, the Department of Health and Human Services (HHS) issued its interim final rule with regard to requirements for notification in the event of a breach of unsecured protected health information (PHI). Among other notification requirements (including notice to impacted individuals and in some cases notice to the media), the interim final rule requires covered entities (i.e. health plans, healthcare clearinghouses or certain health care providers) to provide notice to HHS of any breach of unsecured PHI:

The U.S. Department of State has announced that applications for the 2011 Diversity Visa (DV-2011) Lottery will be accepted between Noon EST, October 2, 2009 and Noon EST, November 30, 2009. The Diversity Immigrant Visa Lottery is administered on an annual basis by the Department of State and provides up to 55,000 Diversity Visas each fiscal year to be made available to persons from countries with low rates of immigration to the United States. Persons seeking to apply must register electronically during the registration period. The 2011 Diversity Visa Lottery marks the seventh year that electronic registration is required. Paper entries and mail-in requests for Diversity Visa Lottery registration are not accepted.

OSHA has launched its long-awaited Recordkeeping National Emphasis Program (NEP). Effective September 30, the NEP will subject employers in certain industries to comprehensive injury and illness records reviews. Employers in the targeted industries should take time now to review their OSHA recordkeeping logs and practices to prepare for an NEP inspection.

The Department of Homeland Security has published a final regulation rescinding the Bush Administration's "safe harbor" regulation from 2007 about no-match letters sent to employers from the Social Security Administration. Nevertheless, the essential, longstanding lesson of the regulation has not changed at all: completely ignoring a no-match letter could reflect "constructive knowledge" of the lack of work authorization of the affected employees.

ICE has released its internal policy memo on worksite enforcement, which is as tough on employers as we thought. It does not call an end to large-scale worksite raids that results in removal of workers, but it requires high level approval before they can be conducted.

Now, not only do all private employers with operations in certain states (Arizona, Mississippi, and South Carolina) have to use E-Verify, but also certain employers with certain federal contracts or subcontracts have to as well. Figuring out whether you are required to use E-Verify and what you need to do can prove challenging, so we've rounded up some helpful tips.

In a blatant effort to take advantage of a change in the membership of the National Mediation Board (NMB), unions have petitioned the NMB to alter its longstanding procedures on how representation elections are conducted.

On September 15, 2009, a bill (H.R. 3567, entitled the "Respect for Marriage Act of 2009") was introduced in the U.S. House of Representatives to repeal the federal Defense of Marriage Act (DOMA) and to "ensure respect for State regulation of marriage."

Readers may wonder what Department of Homeland Security port inspectors and other officers may have available to them about travelers and other persons they are inspecting or investigating. A reader of the web publication Philosecurity submitted for publication a copy of a full travel history document the reader obtained about himself through a request under the Freedom of Information Act. Philosecurity published the document with an article. Both DHS and then the reader have redacted personally identifying information, but the reader has added annotations in red to give a sense of the nature of the surprising detail.

Having just observed the eighth anniversary of the September 11 attacks, it's worth considering how much we have become accustomed to enhanced security measures in our day-to-day lives. Anyone who has traveled through a U.S. airport, shown up for jury duty at the local courthouse, or even attended a ball game over the past few years, knows that things aren't what they used to be. We've all become used to increased security, and we're usually willing to go along with the inconveniences and invasions of privacy, especially if it's clear the enhanced measures actually decrease the chances of an incident.

With membership at its lowest point in over 60 years, unions are steadfastly proving they still know how to play politics. Organized labor has recently taken steps to reinforce its ranks through legislation, introducing significant reform efforts such as the Employee Free Choice Act (EFCA). The Act, in effect, would eliminate secret ballot elections from the provisions of the National Labor Relations Act (NLRA) related to union organizing, substitute card check verification instead, and make employer neutrality mandatory in the electoral process.

Issues of student sexuality have been emerging in private schools for the last five years or so. Questions abound regarding student sexual-orientation rights in religious and non-religious schools, regarding the rights of students to create gay and lesbian school clubs, and regarding the propriety of administrators' disclosure of student same-sex relationships to parents. In some situations, private schools have been sued for taking strong action where the administration determined that students who are engaging in same-sex relationships have violated the school's religious principles.

On September 29, 2009, the National Labor Relations Board (NLRB) asked the Supreme Court to resolve a split in the United States Circuit Courts of Appeals as to whether a panel of only two members of the NLRB has the authority to issue final orders under the National Labor Relations Act (NLRA). As of today, three Circuit Courts - the 1st, 2nd, and 7th Circuits - have ruled that a two-member panel of the NLRB may issue decisions, while the District of Columbia Circuit has held that two-member decisions are illegitimate.

Each year, the Occupational Safety and Health Administration (“OSHA”) issues a Site-Specific Targeting (“SST”) Plan identifying for inspection industry sectors with historically high occupational injury and illness rates The SST-2009 plan will target manufacturing, non-manufacturing, and nursing and personal care facilities.

From Facebook to LinkedIn to Twitter, it seems that internet-based communications are everywhere. Some argue that Web 2.0 technologies, such as blogging, micro-blogging, photo-sharing, video-sharing, life-casting and networking, help companies meet their customers' needs and that social media supports the democratization of knowledge, news and even professional sports. But there are risks associated with employee social media use; risks that you can manage with a clearly defined policy regarding media use.

With the economic downturn and political change in Washington, the past year has been difficult for American businesses. But in many ways, employers have benefited by the fact that legislators have been focused on bailouts, stimulus packages, and healthcare reform. These politically-charged subjects have kept the legislators' focus off of other big changes to the workplace that are waiting in the wings. Without these larger issues, legislators would have been acting on numerous proposed laws to change virtually every area of employment law.

Employees are working longer and harder to ensure that they keep the jobs they have. With unemployment hovering around 9.5% nationally and up to 13% in states such as Michigan, employees are doing what they can to stand out and avoid being cut in unfortunate, but sometimes necessary layoffs.

After a long day at the office, imagine logging onto Facebook to see what your friends have been up to, only to have your boss or colleague message you about an urgent work matter. Aside from the fact that you are officially off duty, is it appropriate for your co-worker to reach out to you through a social networking forum? Was it wise to accept a colleague or higher-up as a "friend" to begin with? And -- perhaps more importantly -- in this day and age, when people are seemingly available around the clock because of smartphones and our endless appetite for all things online, is anyone ever really "off duty?"

USCIS has made an admirable but confusing effort toward transparency by publishing a Question and Answer document reflecting the numbers of pending applicants for employment based adjustment of status to permanent residence, organized by their year of "priority date." We expect that clients and interested parties who are the subject of employment based labor certification applications or visa petitions may read, or read about, this document and related charts and become confused and perhaps unjustifiably hopeful about their likely wait for a visa number. We publish this alert to put the USCIS information into perspective and, sadly, leave readers with a more realistic impression that it is very difficult to know how long the wait for an employment based visa number might be. We ask readers not to feel obliged to take the time to read the USCIS document or this alert about it, and not to worry if the discussion below seems even more confusing than the USCIS chart. The bottom line: without congressional action, visa numbers likely will progress slowly.

The Department of State has announced the rules and process to register for this year's "Diversity Visa" program, which is literally a lottery for 50,000 green cards.

Anxiety over the new H1N1 flu may have eased during the summer, but the federal government has reminded us that seasonal and H1N1 flu may again command concern with the coming of fall. The Centers for Disease Control and Prevention, anticipating a spread of the H1N1 flu, has released new guidelines (available at http://www.flu.gov/plan/workplaceplanning/guidance.html) to help businesses and employers prepare now for the impact seasonal and H1N1 flu could have on employers, employees and operations.

Last week, the Internal Revenue Service (IRS) announced guidance concerning qualified plan operations and rollovers that are (or could be) affected by the waiver of a 2009 required minimum distribution (RMD) under the Worker, Retiree, and Employer Recovery Act (WRERA) of 2008 (Pub. L. No. 110-458). Previously, the IRS had issued advice to financial institutions that are required to deal with the reporting aspects of a waiver of RMDs (Notice 2009-9, issued 1/9/09), but there was little if any guidance addressed to plan administrators or sponsors.

The Internal Revenue Service (IRS) has issued guidance regarding the suspension of required minimum distributions (RMDs) for 2009 from defi ned contribution plans (for example, 401(k) plans) under the Worker, Retiree and Employer Recovery Act of 2008 (WRERA). As discussed in a previous Vedder Price Employee Benefi ts Briefi ng (March 2, 2009), WRERA permits plan sponsors to amend their plans to allow participants (or benefi ciaries) to forego receiving the RMD for 2009 that would otherwise be required because they are 70½ or older. Alternatively, participants (or benefi ciaries) may roll over 2009 RMD payments to another qualifi ed plan or IRA.

Employers with personnel traveling internationally may want to take stock of changes that have occurred over the past 12 months to ensure employees are able to complete business trips with little or no interruption. Among the recent changes:

U.S. Immigration and Customs Enforcement (ICE) launched a nationwide I-9 audit initiative on July 1, issuing Notices of Inspection (NOIs) to 652 employers (see the ICE press release). This action confirms the new method of enforcement promised by representatives of the Obama Administration. In April 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano indicated that ICE would focus its resources in the worksite enforcement program on the criminal prosecution of employers that knowingly hire illegal workers and that ICE would use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.

First, the simple answer: employers should use the most recent Form I-9 found at www.uscis.gov/i-9. The form indicates the most recent revision date on the lower right hand corner: Rev. 08/07/09. Also acceptable is the immediately prior version of the form dated 02/02/09 on the lower right hand corner.

On November 14, 2008, the Bush Administration promulgated a final rule to amend the Federal Acquisition Regulation (FAR) to require certain federal contractors to use E-Verify. After four delays and a lawsuit filed to prevent implementation, the federal contractor/E-Verify regulation became effective on September 8.

The Equal Employment Opportunity Commission (EEOC) has published a Notice of Proposed Rulemaking (NPR) containing proposed amendments to its Americans with Disabilities Act (ADA) Regulations and Interpretive Guidance that reflect changes made by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The NPR was published in the Federal Register on September 23, 2009. The EEOC will accept comments on the proposed regulations until November 23, 2009. The EEOC has also published a Question and Answer (Q/A) document on its web site, http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html, which addresses some of the changes of the proposed regulations.

On September 23, 2009, the EEOC published proposed regulations interpreting the ADA Amendments Act of 2008 (“ADAAA”). The ADAAA became effective January 1, 2009 and signifi cantly expanded the coverage of the Americans with Disabilities Act (“ADA”). As explained in prior newsletters, the effect of the ADAAA is that many more individuals are now covered by the ADA and eligible for reasonable accommodation. The EEOC is accepting public comments on its proposed regulations through November 23, 2009, and will issue fi nal regulations at some point thereafter. We do not expect the EEOC to make signifi cant changes from the proposed regulations issued on September 23.

On September 24, 2009, U.S. Citizenship and Immigration Services (USCIS) released updated information on H-1B non-immigrant visa petitions for Fiscal Year 2010 (beginning October 1, 2009), stating that as of September 18, 2009, it has received only 46,000 of the 65,000 H-1B non-immigrant visa petitions needed to meet the H-1B regular cap, but almost all of the visa petitions needed to meet the U.S. master’s degree cap of 20,000. USCIS will continue to accept new H-1B visa petitions and monitor the number of petitions received, since not all petitions can be approved. Once the relevant H-1B cap has been met, USCIS will issue an update and announce the final receipt date. H-1B petitions will no longer be accepted after the final receipt date. USCIS will hold a lottery for the petitions received on the last day that filings are accepted.

Courts typically have dismissed discrimination claims under Title VII if those claims were made by an independent contractor, rather than by an “employee” of the company. However, 42 U.S.C. §1981 (“Section 1981”), which prohibits racial discrimination in the formation of contracts, states that “all persons” shall have the same right “to make and enforce contracts as is enjoyed by white citizens.” In a case of first impression for the 3d U.S. Circuit Court of Appeals, that court has followed prior decisions of three sister-appellate courts in holding that an independent contractor may sue for race discrimination under Section 1981.

Approximately one year after former President Bush signed the ADA Amendments Act (ADAAA), the EEOC has finally issued proposed regulations and an Interpretive Guidance for public comment. As expected, the new regulations make significant changes in how certain terms under the ADA are defined, which certainly will give rise to more disability claims. Here is a summary of the most significant changes and guidance to the regulations.

While awaiting what (if anything) is to come from “healthcare reform,” the stream of regulation of employer-sponsored group health plans continues. Employers must adapt as they face benefit planning for 2010 and open enrollment.

For the past few months, Senate leadership has been managing expectations on the Employee Free Choice Act (EFCA), the bill backed by organized labor designed to make it easier to organize employees and negotiate first-time contracts. Senate leaders have been publicly bracing supporters of the bill to expect delay, given everything already on the Majority's agenda. Even union leaders have downplayed expectations noting formal consideration of the bill is a moving target. Given these statements and the recent focus on healthcare, most observers have speculated that consideration of EFCA will slide to 2010.

Proposing sweeping changes to its regulations and interpretative guidance under the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) has published a Notice of Proposed Rulemaking (NPRM) in today’s Federal Register in order to implement the ADA Amendments Act of 2008 (ADAAA).

Citizens and many unsuspecting foreign nationals in the United States must submit annual reports to the U.S. Department of Treasury concerning a broad array of foreign financial accounts exceeding $10,000. The Internal Revenue Service initially announced a voluntary disclosure program in March 2009 with a deadline for reporting previous violations of September 23, 2009. The IRS has announced a one-time extension of the deadline until October 15, 2009. Required persons must submit an increasingly detailed Form TD F 90-22.1. Penalties for noncompliance are severe.

Pundits are wondering what the new administration’s stance will be on the hot-button issue of immigration. Although President Obama has not made any comprehensive official pronouncements, by all accounts it appears that employers will face increased scrutiny and more vigorous enforcement of existing laws outlawing the employment of unauthorized aliens.

Covered entities, such as group health plans, ("CEs") and business associates, such as vendors that provide services to group health plans, ("BAs") that are subject to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") now must comply with the Health Information Technology for Economic and Clinical Health ("HITECH") Act breach notification rules (the "HITECH breach notification rules"). The HITECH breach notification rules require CEs and BAs to send out notifications to affected individuals upon a breach of unsecured protected health information ("PHI").

Constangy partner Mel Haas is Vice Chairman of the U.S. Chamber of Commerce's Labor Relations Committee. We are forwarding to you yesterday's communication from the "The Hill" so that you may be informed of the latest from Capitol Hill. As always, Constangy will keep you informed immediately as news hits. If you have questions or concerns, feel free to contact any Constangy attorney.

Minnesota drug testing laws and other statutes apply to a drug testing policy negotiated between a union and a unionized employer according to the U.S. Court of Appeals for the Eighth Circuit in Williams v. National Football League (8th Cir. Sept. 11, 2009). In Williams, the NFL unsuccessfully argued that claims under the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA)1 and the Minnesota Lawful Consumable Products Act (CPA)2 are preempted by federal labor law. The case highlights that organized employers must consult state workplace drug testing laws—along with any other potentially applicable statutes—when negotiating testing policies.

Flexibility, cost savings, expertise…using independent contractors may be perfect for your business for all these reasons, but beware of the minefields. Title VII and other federal discrimination laws may not protect independent contractors, but that doesn't mean that your company won't be held responsible when allegations of discrimination—either by or against an independent contractor—arise.

Title VII of the 1964 Civil Rights Act requires covered employers to post a notice describing the law's provisions in an accessible format. This notice must be conspicuously posted in the same place where other employee notices are customarily maintained. Moreover, the notice must be prepared by or approved by the EEOC.

The U.S. Equal Employment Opportunity Commission has approved proposed regulations on the Americans with Disabilities Act (“ADA”) to reflect changes made by the ADA Amendments Act (“ADAAA”) of 2008. The ADAAA, which became effective on January 1, 2009, expressly overturns several landmark Supreme Court decisions and significantly expands the protections afforded to disabled individuals. The legislation directs the EEOC to draft new regulations requiring a less demanding standard for an individual to establish a substantially limiting physical or mental impairment under the ADA.

In this attorney-authored article, Micah Heilbrun of Littler's Houston office explains the potential risks that employers must consider when deciding whether to take disciplinary action against employees who post criticism or negative comments on social networking sites about their company. Key aspects that must be examined are: privacy issues; the potential coercion of employees by the employer to access the online content; and cost-benefit analyses.

The Equal Employment Opportunity Commission has revised its Compliance Manual to implement the Lilly Ledbetter Fair Pay Act. The Act, passed earlier this year, overturned the U.S. Supreme Court’s holding in Ledbetter v. Goodyear Tire & Rubber Co., 550 US 618 (2007), which held that a charge of compensation discrimination under Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act or the Age Discrimination in Employment Act must be filed within 180 or 300 days of the first alleged “discriminatory” paycheck, depending upon whether the state has a state fair employment practice (“deferral”) agency. Under the Court’s decision, subsequent “discriminatory” wage payments did not resuscitate the prior filing period under the “continuing violation” theory. The Act, which significantly expanded the relevant statute of limitation, is retroactive to May 28, 2007, (the day before the Supreme Court’s decision) and permits suit as to pay discrimination claims pending on or after that date.

HIPAA Breach Notification Rules.

IRS Publishes Updated Notices for Retirement Plan Rollover Distributions.

The Internal Revenue Services (IRS) has announced that beginning in November 2009 it will launch its latest National Research Program (NRP). This NRP will be focused on conducting detailed employment taxes examinations. Approximately 6,000 or more employers are to be randomly selected for audit. In addition to potential “assessments,” these audits will provide the IRS with the statistical sample of overall employment taxes compliance. The audit program will be conducted over a three year period with at least 2,000 employment tax audits conducted per year. Audits likely will include both for profit and non-profit employers.

In February 2009, President Obama appointed long-time Board member Wilma Liebman as Chairperson of the National Labor Relations Board (NLRB). As a member of the Bush-era Board under former Chairperson Robert Battista, Ms. Liebman dissented from most of the critical pro-employer decisions issued under the Battista Board. Analysis of Liebman's dissenting opinions provides a legal roadmap – charting the likely course the Liebman Board will take if presented with the opportunity to reconsider the issues addressed in these critical decisions.

Two former in-house corporate attorneys were entitled to a trial of their claims brought under the Sarbanes-Oxley Act (“SOX”) that they were fired because of complaints about fraud against the company’s shareholders, the U.S. Court of Appeals for the Ninth Circuit (in San Francisco) has held. In deciding its first case under the whistleblower provision of SOX, Van Asdale v. International Game Tech., et al., the Ninth Circuit reversed summary judgment in favor of the defendants and held that the plaintiffs had raised a genuine issue of material fact as to whether they wrongfully were discharged. The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Beginning September 23, 2009, covered entities and business associates under the Health Insurance Portability and Accountability Act (HIPAA) will be required to notify individuals affected by certain “breaches” of unsecured protected health information. The notification mandate, enacted under the Health Information Technology for Economic and Clinical Health (“HITECH”) Act, as part of the American Recovery and Reinvestment Act of 2009 (ARRA), was signed into law by President Barack Obama on February 17, 2009. Following the general framework established by the 45 states that have adopted similar laws over the past few years, the Department of Health and Human Services (HHS) issued interim final regulations on August 24, 2009, interpreting the new notification requirement.

While many U.S. unions appear to be waiting on the outcome of the Employee Free Choice Act debate to ramp up their organizing activities that has certainly not been the case for those unions targeting health care workers. Rather, those unions have for some time been engaged in often intense levels of national organizing, albeit typically in a non-coordinated (and, at times competitive) fashion. A few recent developments suggest more coordination and cooperation by the major unions involved.

Employers and their attorneys have been hard-pressed to keep up with rapid changes and developments in employment law in 2009. The U.S. Supreme Court has, for its part, issued a number of important decisions in 2009 that will affect the administration and direction of discrimination challenges and lawsuits. The decisions are discussed below.

Government health officials predict millions of Americans will contract the novel H1N1 flu virus, commonly called the Swine Flu. No business will be immune from the effects of this virus. Employers should prepare for the impact of a pandemic on the workplace with a sense of urgency. Proper planning for this serious employment challenge will be essential to protect the health of employees while avoiding disruption of operations.

On September 8, 2009 the government will begin requiring federal contractors to use E-Verify to verify the legal work status of newly-hired employees and current employees working directly on the covered federal contract. The U.S. Chamber of Commerce is seeking an em