Employees today are often beset with multiple caregiving responsibilities for children and aging parents. In recognition of the challenges faced by the so-called sandwich generation, the U.S. Equal Employment Opportunity Commission (EEOC) recently issued a new guidance for employers detailing best practices to prevent illegal discrimination against these employees.

On June 30, 2009, U.S. Citizenship and Immigration Services (USCIS) provided an update stating that it continues to accept H-1B petitions subject to the Fiscal Year 2010 H-1B Cap.

What Happened Two Years Ago... In Long Island Care at Home, Ltd. v. Coke, 549 U.S. 1105 (June 11, 2007), the Supreme Court deferred to the U.S. Department of Labor's interpretation of its own regulations and unanimously held that home care workers employed by third party employers or agencies were exempt from overtime under the "companionship exemption" to the Fair Labor Standards Act. Coupled with the overtime exemption available to non-profit agencies in New York (where Medicaid funded home care can be 24/7) who had timely filed a Statement of Non-Profitmaking Institutions with the NYS Department of Labor, this fully exempted those agencies, in particular, from overtime pay to home care workers.

EFCA update; Two-member rulings continue; Arbitration of statutory discrimination claims? Not so fast! Read the entire contract! Union win rate rises in 2008; Raynor finally outta HERE; “Am I here or at Dad’s this weekend?”; Wedding plans?

Change may be the only constant, but it's also a constant challenge for educators trying to prepare students for the future. If the world is always in flux, what should teachers be teaching? What should schools be doing to develop the next generation for the dramatic shifts taking place in the way the world works and lives? Does the current curriculum make the grade?

On June 29, 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 June 26, 2009, it has received only 44,800 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.

Earlier this year we created "e-mail alerts" to keep you better informed of legislative changes and related legal developments in labor and employment law that will significantly impact both union and non-union employers during 2009. We are gratified with the positive feedback we have received from many of our clients and friends on this series of e-alerts. Based on suggestions we received and encouragement from many in our firm, we are expanding the original framework to address the myriad of potential changes in labor law that we will likely see over the next few years from the National Labor Relations Board (NLRB or Board), the federal agency which administers the National Labor Relations Act (NLRA).

U.S. Citizenship and Immigration Services (USCIS) has verified that the current version of the I-9 form, dated February 2, 2009, will remain valid beyond its June 30, 2009 expiration date. USCIS is in the process of releasing a new version of the I-9 Form. Until the new form is released, employers must continue to use the current version of the I-9 Form to confirm employees authorization to work in the United States. The current version of the I-9 Form can be downloaded from our website at www.laborlawyers.com/I-9 or from www.uscis.gov.

The U.S. Citizenship and Immigration Services (“USCIS”) has announced that the current version of Form I-9, Employment Eligibility Verification, which is set to expire June 30, 2009, can continue to be used until a new version of the form is issued. No substantive changes are expected to be made when the updated form is released.

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."

Now that the Department of Labor has issued several pieces of formal guidance aimed at assisting employers and insurance carriers to implement the COBRA subsidy rules introduced by the American Recovery and Reinvestment Act of 2009 ("ARRA"), the IRS has now issued additional guidance aimed at assisting employers in administering the COBRA subsidy.

H-1B visa numbers remain available for Fiscal Year (FY) 2010, many believe due to the economic downturn. U.S. Citizenship and Immigration Services (USCIS) has announced that, as of June 19, 2009, approximately 44,500 H-1B cap subject petitions have been received and counted towards the 65,000 H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemption have been received. Until USCIS announces that the respective caps have been met, employers can continue to file H-1B temporary worker petitions for foreign nationals requesting an employment start date on or after October 1, 2009. The continued availability of H-1B visa numbers comes in stark contrast to last year when the H-1B caps were reached within the first five business days of filing.

For many years, health systems reasonably assumed that arrangements with a non-governmental entity to provide services or benefits to federal employees would not invoke the jurisdiction of the Office of Federal Contract Compliance Programs (OFCCP), and thus would not mandate federal equal employment and affirmative action obligations.

The Internal Revenue Service (IRS) has recently added important guidance to its Employee Plan Team Audit (EPTA) website that is very helpful to retirement plan sponsors and retirement plan administrators. First, the IRS has released an internal controls questionnaire to assist a plan sponsor in making sure its retirement plans operate in accordance with the plan terms and the Internal Revenue Code (the "Code"). Second, the IRS has released information regarding EPTA trends and tips revealed from audits of large retirement plans. Third, the IRS now provides a tool that assists employers with the documentation needed for an exam by type of plan, including defined contribution and defined benefit plans. This article summarizes the important features of these IRS materials.

On June 23, 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 June 19, 2009, it has received only 44,500 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. 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.

The U.S. Equal Employment Opportunity Commission on June 17, 2009, voted to revise its 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, makes it easier for individuals seeking protection under the ADA to establish that they have a disability.

E-Verify, the Internet-based system operated by United States Citizenship & Immigration Services (USCIS) that allows employers to verify the employment eligibility of employees, is currently voluntary at the federal level. However, certain states have acted to require some or all employers to use the system. Arizona has the most sweeping law, requiring all employers to use E-Verify.

The road to a green card is often measured in years rather than months. We have previously reported on and summarized the delays inherent in the green card process, including in the April 2009 issue of the Immigration eAuthority. In that article, we summarized the three steps commonly required for employment-based green card cases: the PERM labor certification, the I-140 Immigrant Petition and the I-485 Adjustment of Status application. Each of these three steps can take a year or longer to process.

The Racketeer Influenced and Corrupt Organizations Act (RICO) is largely thought of as a law designed to combat activities of organized crime enterprises, a reasonable conclusion since it was enacted as part of the Organized Crime Control Act of 1970. RICO allows for civil actions against persons or entities that engage in a pattern of racketeering activities. In 1996, Congress extended the reach of RICO to violations of federal immigration law. So, can RICO potentially result in liability to a company that uses undocumented workers? Under certain circumstances, the answer clearly seems to be “yes.” Furthermore, a RICO claim might support a class action against an employer.

A depressed job market seems to be keeping the H-1B cap from being reached. Very few cap-subject H-1B petitions have been filed since the initial April 1-7 filing period for the 2010 H-1B cap. In fact, the most recent report from United States Citizenship and Immigration Services (USCIS) indicated that 44,400 petitions had been received toward the 65,000 H-1B cap as of June 12 – this is fewer than the number that had been received as of mid-May, when USCIS reported that 45,000 petitions had been received. Once again, the current pace of H-1B filings suggests that employers will have the opportunity to file cap-subject H-1Bs for several more months. USCIS posts periodic updates to its website and Ogletree Deakins will continue to monitor and report on H-1B cap figures.

Implementation of the regulation requiring certain federal government contractors and subcontractors to use the U.S. Citizenship and Immigration Services (USCIS) E-Verify system has once again been delayed. Most recently scheduled to become effective on June 30, the regulation’s effective date has been pushed back to September 8, 2009. The regulation was published on November 14, 2008, and was originally scheduled to become effective on January 15, 2009. This is the fourth time implementation of the regulation has been delayed.

Life's getting more challenging for employers. A new NLRB head bodes a near certain reversal of employer-friendly holdings; the IRS is gunning for imperfect retirement plans; and Congress now has mandatory paid sick leave on the docket alongside the ever-present EFCA legislation. If there is any light at the end of the tunnel, we find it in a recent Supreme Court ruling that shifts the burden to prove disparate treatment under the ADEA to the employee, and on the state level, in Tennessee's amendment of its workers' compensation law to reduce employer exposure.

The broad reach of the Office of Federal Contract Compliance Programs may extend even further under a recent federal administrative board decision. The U.S. Department of Labor’s Administrative Review Board (ARB) has upheld an administrative law judge’s (ALJ’s) finding that three hospitals receiving payments from a health plan for providing medical services to U.S. government employees are federal subcontractors required to comply with OFCCP requirements.

Implementation of the new mandatory E-Verify rule for federal contractors was set to go into effect on June 30, 2009. However, the implementation date has once again been delayed. The new date is now September 8, 2009. This is the fourth time that the effective date of this rule has been postponed. The delay was sought by the Obama administration to enable them to have more time to review the rule before it takes effect.

Michelle's Law provides that a group health plan that offers dependent coverage and conditions that coverage upon status as a full-time student may not terminate the dependent's coverage when the dependent ceases to meet the "full-time" criteria due to a "medically necessary leave of absence." This law is intended to protect parents of college students who lose "student status" due to illness from the financial burdens of COBRA.

Shock and awe! When Congress passed the Lilly Ledbetter Fair Pay Act on January 29, 2009, during the first week of the 111th Congress (without any committee action, little floor debate, and no amendments), and President Barack Obama quickly signed the bill into law (P.L. 111-2), it became shockingly clear to the business community how fast "change" could come to workplace law.

Qualified retirement plans are generally exempt from federal income tax, but nevertheless must comply with reporting and other requirements related to how they are administered. Further, as with individuals and entities subject to federal tax laws, qualified retirement plans are vulnerable to audits by the IRS. On its website, www.irs.gov/retirement, the IRS has clearly stated its intention to conduct audits this year to analyze operational features of retirement plans. According to Monika Templeman, the Director of Employee Plans Examinations, "There will be a prominent [employee benefit] examination presence in the Retirement Plans Community of benefits practitioners, plan sponsors/employers, and plan participants/employees." She states further that the IRS will increase its focus on enforcement this year.

In this time of economic uncertainty, employment and benefits issues are topics biodiesel plant owners and industry participants must address. Among the myriad of legal and practical considerations are the impact of workforce adjustments on employee benefits, such as company’s retirement plans and COBRA obligations.

In a harbinger of things to come, the Occupational Safety and Health Administration recently released comprehensive guidance on controlling silica exposures in construction. This guidance had been under development at the agency for years, but it was not until President Barack Obama took over the White House that the guidance document was published by the safety and health agency.

The applicability date of the rule requiring federal government contractors and subcontractors to begin using the USCIS E-Verify system has been delayed for the fourth time, until September 8, 2009. The federal agencies responsible for implementing the rule published an amendment in the June 5, 2009 Federal Register postponing the applicability date of the final rule. The rule requiring federal contractors and subcontractors to electronically verify the employment eligibility of their employees was first published on November 14, 2008, and was set to become effective on January 19, 2009, but has since been postponed four times.

On May 18, 2009, the IRS issued proposed regulations that would permit employers incurring a substantial business hardship to reduce or suspend required Safe Harbor Nonelective Contributions without losing their plan’s qualified status.

Ignorance of the law is no defense, and lack of knowledge does not protect a company from its affirmative action obligations. In a recent decision that should strike terror in the hearts of employers who think they are not federal subcontractors, the Department of Labor’s Administrative Review Board extended coverage of the affirmative action laws to a group of hospitals that were medical providers approved by an HMO that had a contract to provide medical care to government employees. The hospitals had no idea they were covered subcontractors.

According to the Equal Employment Opportunity Commission, class-wide punitive damages can be determined by a jury in Title VII pattern or practice cases and back pay determinations may be made without individualized hearings when appropriate. If the courts agree with the EEOC, many employers could lose their ability to defend individual employment decisions in large class actions with evidence of wrongdoing turning on company-wide statistics.

The federal government has decided to postpone from June 30 until September 8, 2009, implementation of the E-Verify requirement for federal contractors, marking the fourth delay since the final rule was issued more than six months ago.

The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) requires employers to place employees returning from military leave into the position they would have held if they had been continuously employed. Two recent U.S. District Court decisions provide employers with greater clarity regarding their reemployment obligations.

Getting Compliant in a Brave New World: The New H-2B Guest Worker Regulations.

The federal government is expected to publish a notice in the Federal Register early next week that will further delay implementation of the E-Verify requirements affecting federal contractors. The final rule will require certain federal contractors and their subcontractors to begin using the E-Verify program to electronically verify the work eligibility of their newly hired employees and existing employees assigned to work on government contracts. The rule, set to go into effect on June 30, 2009, will be further suspended until September 8, 2009. This is the fourth time the rule has been delayed from its original January 15, 2009, effective date.

In yet another example of how the legislative landscape has changed for employers since the 2008 election, two pieces of legislation recently introduced in Congress would require employers to provide paid leave for their employees. On May 18, 2009, Rep. Rosa DeLauro (D-Conn.) introduced the “Healthy Families Act” (H.R. 2460) in the House. The Act would provide workers with up to seven days of paid sick leave per year. A few days later, on May 21, 2009, Rep. Alan Grayson (D-Fla.) introduced the “Paid Vacation Act” (H.R. 2564), which would make paid vacation for employees a requirement under federal law.

The United States Court of Appeals for the District of Columbia Circuit has upheld a controversial U.S. Department of Transportation (“DOT”) rule requiring direct observation of employees providing urine specimens during return-to-duty and follow-up drug tests.

On March 25, 2009, four House Democrats introduced a bill that would create a new federal insurance fund to provide employees with up to 12 weeks of paid family and medical leave each year.

In late April, less than 100 days after his term began, President Obama appointed a pair of union-side labor lawyers – both Democrats – to fill two of the three vacancies on the National Labor Relations Board (NLRB). Craig Becker currently serves as Associate General Counsel to the Service Employees International Union (SEIU); in addition, he advises the AFL-CIO in a similar capacity. He is a graduate of the Yale Law School, and except for a brief stint teaching at UCLA Law School, he has been a practicing labor lawyer most of his career.

Most of the current focus among pro-management advocates is on the card-check provisions of the Employee Free Choice Act (EFCA). But don't lose sight of the fact that Congress is considering several other pro-labor legislative proposals that warrant scrutiny. One such proposal is the Patriot Corporations of America Act of 2009 (PCA) which, as drafted, provides employers with a Hobson's choice. One thing is clear: if enacted, the PCA will render EFCA moot with respect to the goal of increasing the success of union-organizing drives.

A federal judge in the United States District Court for the Eastern District of Missouri issued a ruling affecting the remedies an employer may seek when a departing employee misappropriates information stored electronically in Lasco Foods, Inc. v. Hall and Shaw Sales, Marketing, & Consulting, LLC.1 The court broadly interpreted the Computer Fraud and Abuse Act (CFAA),2 paving the way for a federal remedy for employers whose former employees delete and/or steal company information.

The effective date of the Federal Contractor E-Verify Rule has been postponed once again. The new implementation date is now scheduled to be September 8, 2009, (extended from the most recent scheduled implementation date of June 30, 2009) and is the result of an agreement between the parties to the lawsuit filed by the U.S. Chamber of Commerce and other business groups challenging the rule.

Imagine a big night at your restaurant: the place is packed with guests, all enjoying themselves. A diner shows up with an unexpected companion – a dog. You're concerned about health regulations and the effect on other patrons. Politely but firmly you tell the guest she cannot enter with the dog. Either it stays outside or she does. Any problem? Yes. You've just politely but firmly violated the Americans with Disabilities Act.

In the past several years, businesses in the hospitality industry have particularly borne the brunt of increased federal enforcement of the nation's immigration laws. Through high-profile tactics including raids of businesses large and small, the previous administration put employers on notice that hiring unauthorized workers could result in million dollar fines, jail time for company owners, and months of damaging press coverage.

Competition to obtain more customers, sell more products, and make more profits is a motivating factor that drives every company. With new revenue hard to find in the present economy, retaining what business you do have, or that you have lined up in the pipeline, is at a premium. In a situation like this, the ramifications from employee defections can be crippling – i.e., years of hard work and "fair competition" can be quickly undone by a former employee who takes the benefits of those efforts to a competitor. Now is the time to make sure that you have maximized all means of protecting your client relationships and confidential information.

Constangy partner Penni Bradshaw is a member of the U.S. Chamber of Commerce's Immigration Sub Committee. We are forwarding to you communication from the Chamber's Executive Director of Immigration Policy 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.

President Barack Obama’s nomination of Judge Sonia Sotomayor of the U.S. Court of Appeals for the Second Circuit in New York to replace retiring Justice David Souter on the U.S. Supreme Court has focused employers’ attention on her judicial record in labor and employment law cases.

In the last issue of Retail Industry Update (March, 2009) we looked at the facts of Morgan v. Family Dollar Stores, an overtime lawsuit, which resulted in a jury verdict of over $35 million. The case was affirmed on appeal, and turned principally on the issue of how much actual control store managers had over the day-to-day operations in their outlets.

Throughout his campaign, Sen. Barack Obama continually promised change if he was elected President, and he is now making good on that promise. If you read the safety-activist blogs and media reports, many seem to believe that OSHA is broken and the Obama Administration has to fix it. They cite the decrease in OSHA funding (adjusted for inflation) and a decrease in the number of OSHA inspectors as proof positive that this is not the OSHA that should be.

Many companies are expediting their efforts to develop safeguards to protect personal data in response to the rapid emergence of data privacy and security regulations. The New Jersey Identify Theft Protection Act, the Massachusetts data security regulations, the federal “red flag” regulations, and the recent amendments to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) under the American Recovery and Reinvestment Act are prime examples of the wave of regulation directed at protecting personal data. While fear of data breaches, reputational harm, litigation and penalties usually drive company executives to action, employee whistleblower and retaliation claims also must be added to this list.

Ogletree Deakins will continue to provide updates and reminders on significant changes in immigration compliance on a regular basis. With all of the changes, stops, starts, delays and new rules, it is difficult to recall what changes are effective, which ones have been discontinued and which ones are soon to become effective. Below is a status report on significant compliance developments:

The Western Hemisphere Travel Initiative (WHTI) continues to be phased in and as of June 1, most U.S. and Canadian citizens will now be required to present one of the following documents when applying for admission after travel to Canada, Mexico, Bermuda or the Caribbean at land or sea ports of entry:

Consistent with the weak job market, very few cap-subject H-1B petitions have been filed since the initial April 1-April 7 filing period for the 2010 H-1B cap. As of May 11, United States Citizenship and Immigration Services (USCIS) reports that 45,000 petitions have been received toward the 65,000 H-1B cap.

The Department of Homeland Security (DHS) recently confirmed what many had expected – that the goal of rooting out illegal workers will be based upon a strategy that focuses on employers who knowingly hire illegal workers.

The U.S. Department of Labor (DOL) announced on May 14 that it will keep the old Labor Condition Application (LCA) system available through June 30.

On May 21, 2009, the Department of Labor (DOL) issued guidance detailing the procedures applicants for COBRA premium assistance, available under the American Recovery and Reinvestment Act of 2009 (ARRA), may use to appeal a denial of their eligibility for the premium subsidy.

USCIS has clarified that a health care worker with an unrestricted license in the state of employment should be approved for H-1B status even if a Department of Labor manual suggests that the worker does not have a degree high enough to practice the profession.

President Barack Obama announced today that his nominee to fill the position on the U.S. Supreme Court being vacated by Justice David Souter will be Sonia Sotomayor. Judge Sotomayor is currently a judge on the U.S. Court of Appeals for the Second Circuit, which hears appeals from federal district courts in the states of Connecticut, New York, and Vermont.

The intense lobbying over this controversial piece of legislation continues unabated. As currently drafted, the most contentious parts of the bill would amend the National Labor Relations Act to allow a union to become the certified bargaining agent for a group of employees upon a majority of those employees signing authorization for the union on cards or a petition. In addition, it would require an arbitrator to establish the terms of an initial collective bargaining agreement if the parties could not agree after 120 days of bargaining.

For Fiscal Year 2010, the Obama Administration has requested increased funding for virtually every federal labor and employment regulatory agency. For the Department of Labor (DOL), the Administration is requesting $104.5 billion, reflecting an increase over all prior years' original budget requests. Secretary of Labor Hilda L. Solis identified the protection of workers, green jobs promotion, and increased transparency as the DOL's top three priorities, and stated that she intends to use this money to provide significant additional resources for worker protection agencies, specifically the Wage and Hour Division of DOL, the Occupational Safety and Health Administration (OSHA) and the Equal Employment Opportunity Commission (EEOC).

As most employers know, the newly-enacted Lilly Ledbetter Fair Pay Act of 2009 (Fair Pay Act) increases the potential liability for employers for past wage discrimination, whether intentional or unintentional. Two recent cases illustrate how far back an employer's potential liability may reach.

Legislation has been introduced in both houses of Congress that would all but eliminate an employer's right to enter into pre-dispute arbitration agreements with its employees. Under the Arbitration Fairness Act of 2009, pre-dispute agreements requiring the arbitration of an employment dispute or any dispute arising under any statute intended to protect civil rights would be invalid and unenforceable. The Act would also prohibit pre-dispute arbitration agreements addressing consumer or franchise disputes. The legislation would not affect arbitration agreements entered prior to the statute's enactment.

The IRS has issued Notice 2009-48 outlining the reporting and notice obligations for employer-owned life insurance policies. The new rules become effective June 15, 2009.

Constangy partner Randy Loftis is a member of the U.S. Chamber of Commerce's Labor Relations Committee. We are forwarding to you communication from the Chamber's Executive Director of Labor Law Policy 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.

The Internal Revenue Service issued proposed regulations on May 18, 2009 which allow for the suspension or reduction of safe harbor nonelective contributions under certain 401(k) safe harbor plans.

The Internal Revenue Service this week issued proposed regulations that would permit the reduction or suspension of safe harbor nonelective contributions (SHC's) by an employer that sponsors a "safe harbor" 401(k) plan if the employer incurs a "substantial business hardship" (as described in the proposed regulations). This gives an employer an alternative to terminating its safe harbor plan just because it cannot afford to make a contribution. The proposed regulations would allow for the reduction or suspension of safe harbor nonelective contributions and safe harbor matching contributions under substantially identical rules.

On May 18, 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 it has received only 45,500 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.

The U.S. House of Representatives has introduced legislation that would require all employers with 15 employees or more to provide up to seven paid sick days each year. The bill, titled the Healthy Families Act (H.R. 2460), was introduced by Representative Rosa DeLauro (D-CT).

Employers in the transportation industry will soon have to implement tougher urine collection procedures designed to thwart cheating by workers in safety-sensitive positions now that challenged regulations have been upheld by a federal appeals court.

The Office of Federal Contract Compliance Programs’ 2010 budget is expected to increase to over $100 million, according to the U.S. Department of Labor’s 2010 fiscal budget. This amount represents a more than $25 million dollar or approximately 33 percent increase from OFCCP’s 2009 budget, when it was $82.1 million.

Secretary of Labor Hilda Solis recently submitted the Department of Labor (DOL's) proposed budget, which, she states, will restore worker protection programs, promote green jobs, and ensure accountability and transparency. Under this budget, the DOL expects to hire nearly 1,000 new employees, including about 670 investigators, restoring worker protection staffing to FY 2001 levels.

With the President’s stimulus plan enacted, and his budget, including details of his tax proposals released on May 11, 2009, “Change we can believe in” has already begun—and at a break-neck pace. This updated Alert highlights fundamental changes already signed by the President, announced by the Administration, or expected from Congress and from new regulatory and enforcement officials that should be considered when making business decisions. Topics covered here include:

Since January 2009, employers and their lawyers have been waiting to see just how dramatic the impact of the Lilly Ledbetter Fair Pay Act will be. Today, in AT&T Corp. v. Hulteen, the Supreme Court limited the application of the Act, but the limitation is unlikely to apply to most employers.

An employee alleging a violation of the Sarbanes-Oxley Act (SOX) must file a complaint within 90 days from the date of that alleged violation. That 90-day period begins to run from the date on which the complainant knows or reasonably should know that the complained-of act has occurred. In whistleblower cases under SOX, the 90-day statute of limitations runs from the date on which the employee receives “final, definitive, and unequivocal notice” of an adverse employment decision. As defined in SOX, the term “unequivocal” means that the notice is not ambiguous, and is free from misleading possibilities.

Employers and insurers, heed the good news: We have a three-month implementation delay in the Mandatory Reporting Requirements for Medicare. This is even more important to those who are unaware of the reporting requirements. Two years ago Congress passed the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA), which added new and significant mandatory reporting requirements for group health plans (GHPs) and for liability insurance (including self-insurance), no-fault insurance, and workers' compensation benefits, to report where they have made a payment to a Medicare beneficiary.

There appears to be a sharp increase in lawsuits filed against franchisors alleging race discrimination under Section 1981 of the Civil Rights Act of 1866 (codified at 42 U.S.C. § 1981, "Section 1981"). This is a Reconstruction-era statute providing all people, including recently freed slaves, with the same right as white people to make and enforce contracts. In the 1970s, plaintiffs' lawyers began to use the statute to prosecute discrimination in the workplace based on an employee's race. While race-based discrimination was already made illegal by Title VII of the Civil Rights Act, Section 1981 was attractive to plaintiffs' lawyers because it: (1) has a longer statute of limitations (four years versus approximately one year); (2) does not require employees who sue under this claim to file a charge of discrimination with the Equal Employment Opportunity Commission or administrative agencies before instituting such an action in court (unlike Title VII); (3) has no requirement for a minimum number of employees (unlike Title VII); and (4) has unlimited compensatory and punitive damages (unlike Title VII), while still providing for an award of attorney fees. Therefore, plaintiffs' employment lawyers began to add Section 1981 claims to their Title VII race claims, at a minimum, to pursue greater damages than would otherwise be available under just Title VII.

The IRS has released the 2010 cost-of-living adjustments for Health Savings Account (HSA) contribution limits and for High Deductible Health Plan (HDHP) deductibles and out-of-pocket maximums.

With the media focusing on the increasing number of swine flu cases reported in the United States, Mexico, and elsewhere, employers need to be prepared to address their employees’ concerns.

On May 5, 2009, the Department of Labor (DOL) released a Wage and Hour Opinion Letter clarifying how much advance notice employees must provide when requesting leave under the Family and Medical Leave Act (FMLA). The recently released letter (dated January 6, 2009, but not released until May 5, 2009) clarifies that when it is not possible for an employee to give 30 days advance notice of the need for leave, the employee must comply with the employer's internal policies and procedures for requesting leave, as long as it is practicable to do so. The new opinion letter also rescinds a prior DOL opinion letter to the extent that the earlier letter established a two-business-day rule for notice of employees' need for FMLA leave.

More changes in workplace law will occur this year than in the last ten years combined. Between What's Already Become Law and What's On the Horizon we can help you prepare and save your company from making costly mistakes.

Employers who require their employees to participate in a health risk assessment in order to be eligible for health insurance coverage may be unknowingly violating the Americans with Disabilities Act (ADA).

As a follow-up to our article in the February issue of Management Update, "Significant Legislative Items to Watch," the following bills recently were introduced in Congress and, if enacted, could significantly impact employers.

U.S. Citizenship and Immigration Services (USCIS) has announced that it has received only about 45,000 of the 65,000 H-1B non-immigrant visa petitions needed to meet the H-1B regular cap for Fiscal Year 2010 (beginning October 1, 2009), but almost all of the visa petitions needed to meet the U.S. master’s degree cap of 20,000.

Under the Western Hemisphere Travel Initiative (WHTI), effective June 1, 2009, all travelers, including U.S. and Canadian citizens, will be required to present a passport or other approved travel document to enter the U.S. The WHTI is the Department of Homeland Security’s (DHS) and Department of State’s joint plan to establish travel document requirements for travelers who previously were exempt, including citizens of the U.S., Canada, and Bermuda.

According to the Centers for Disease Control and Prevention, in the event that the H1N1 virus (formerly known as swine flu) becomes a pandemic, businesses and other employers will play a key role in protecting employees’ health and safety, as well as limiting the negative impact to the economy and society. Proper planning by employers for this contingency is critical to successfully performing that role.

In 2007, during a nationwide upsurge in pregnancy discrimination claims, the Equal Employment Opportunities Commission (EEOC) released a set of guidelines advising employers on issues related to caregiver bias. On April 22, 2009, the EEOC further supplemented those guidelines with specific recommendations designed, it said, to help employers to “reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity.” The document can be found at www.eeoc.gov/policy/docs/caregiver-best-practices.html.

Beginning on May 15, 2009, all employer sponsors must use the Department of Labor’s (DOL) new iCERT system to file Labor Condition Applications (LCA) before submitting an H-1B, E-3, or H-1B1 petition. The DOL anticipates that LCA applications filed at the iCERT portal could take as long as seven business days to adjudicate. Employer sponsors should therefore expect delays in the preparation of H-1B, E-3, and H-1B1 petitions and a corresponding delay in the start date for new H-1B, E-3, or H-1B1 hires. The most critical impact will be felt with respect to H-1B “portable” change-of-employer situations as the LCA delay will prevent immediate filing of the H-1B petition and thus the new H-1B employee’s start date. Timing issues may also arise with respect to scheduling visa appointments for consular-processed E-3 and H-1B1 visa applications. Delays will also affect employers hurrying to file H-1B petitions subject to the 2010 cap, as the number of available H-1B slots dwindles to less than 18,000. The new system may also delay the filing of extensions for employees in these visa categories.

Recently, two bills were introduced in the House of Representatives that would expand the scope of the Family and Medical Leave Act of 1993 (FMLA). On April 29, 2009, Rep. Carol Shea-Porter introduced legislation, H.R. 2161, that would reverse certain regulations issued by the Department of Labor (DOL), which became effective January 16, 2009. Also, on April 28, 2009, Rep. Carolyn Maloney introduced legislation, H.R. 2132, that would amend the FMLA to permit leave to care for a domestic partner as well as other individuals in an employee's extended family.

The current economic recession, characterized by former Federal Reserve Chairman Alan Greenspan as the “longest and deepest” since the “Great Depression” of the 1930s, has immersed employers in a battle to reduce labor costs. In the instant era of downsizing, the principal focus has become immediate survival planning. Layoffs, overhead cost cuts, cost audits, and other efforts to simply remain afloat are the reality for management across the nation. But, unquestionably, another day is coming. Many economists now predict that the recession, which began in 2007, will end or be in its final stages in the second half of 2009.

Employers are struggling to make ends meet under difficult economic conditions. They have reduced their workforces so that the remaining employees must do more with less help. The last thing we need is a flu outbreak.

No one would deny that labor and employment law presents a cornucopia of challenges for healthcare executives. Presently, you must contend with employee concerns caused by difficult economic times along with new laws, such as the Lilly Ledbetter Fair Pay Act. On the horizon are possibly even more daunting changes to the legal landscape, such as the Employee Free Choice Act (EFCA) – frequently referred to as the card check law. Added to these challenges is the very real possibility that a great many more hospitals and healthcare organizations will have to adopt written affirmative action plans.

Mistakes in drafting and enforcing employment policies can help a union to organize your institution. During union organizing drives, unions regularly look for legal violations by the targeted employer, including employment policies and practices that may violate the National Labor Relations Act (NLRA). Unions pursue and publicize such violations to undermine employee confidence in management and taint employer defenses to other charges that the union may file during the organizing drive.

As tattoos, piercings and other forms of body art have become increasingly prevalent, hospitals are grappling with how to deal with this trend. While many younger workers proudly display their body art, older workers have exhibited a variety of responses. Some are offended, some have embraced the fad, while still others seem unfazed. Providing care for an ever-aging population, hospitals must also consider the reactions of patients and their families, many of whom are already frail and/or apprehensive.

Federal and state legislation establish a public policy encouraging the use of arbitration agreements to resolve disputes. However, many employers have seen their agreements invalidated since the California Supreme Court‘s 2000 decision in Armendariz v. Foundation Health Psychcare, Inc. In that case, the Court imposed several procedural requirements for employment arbitration agreements. Recent appellate decisions have relied on those requirements to refuse to enforce employer’s existing arbitration agreements.

Signaling its renewed focus on regulatory means to address occupational hazards, the Occupational Safety and Health Administration is pursuing comprehensive rulemaking to prevent combustible dust explosions. The Agency has announced it will be issuing an Advance Notice of Proposed Rulemaking (ANPR) and convening stakeholder meetings to evaluate approaches to regulating combustible dust. Employers with combustible dust hazards in their worksites are encouraged to participate in the rulemaking process.

The U.S. Supreme Court has declined review of the Sixth Circuit Court of Appeals’ decision which found an employer violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) when it delayed the re-employment of a returning Army reservist by adhering to its neutral return-to-work process.

On May 4, 2009, the EEOC issued guidance regarding ADA-compliant workplace preparation strategies for the 2009 H1N1 flu virus (swine flu).

With the election last November of a President and Congress more sympathetic to the interests of organized labor, union leaders looked to 2009 as the year they would finally secure passage of the controversial Employee Free Choice Act (EFCA). Congressional leaders from the House and Senate jointly introduced the proposed legislation in the current Congress in March 2009.

In recent weeks, there has been a lot of media attention given to the new "Lilly Ledbetter Fair Pay Act." Who is Lilly Ledbetter and what, if anything, does this Act mean for dealerships?

On April 30, the Department of State published a new Exchange Visitor Skills List in the Federal Register. The new Skills List will be effective on June 28, 2009. Foreign nationals who obtain J-1 (Exchange Visitor) status on or after that date may be impacted.

Since January 2008, the National Labor Relations Board (the "Board") has had only two (out of five) active members. Despite this apparent lack of a quorum, the Board has issued final decisions in approximately 400 cases. The authority of the two-member Board to issue decisions was challenged in many cases and has recently been addressed in three federal appellate court decisions: Laurel Baye Healthcare v. NLRB, No. 08-1162 (D.C. Cir. May 1, 2009), New Process Steel v. NLRB, No. 08-3517 (7th Cir. May 1, 2009), and Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009). These opinions, however, do not resolve the issue of the two-member Board's authority to rule on pending cases because the D. C. Circuit struck down the Board's authority to do so and the Seventh Circuit and First Circuit upheld it. Moreover, the same issue has been raised in two cases still pending before the Second and Eighth Circuits.

On May 5, 2009, the Department of Labor published Opinion Letter FMLA2009-1A (the opinion letter is actually dated January 6, 2009). The opinion letter states that, under the new FMLA regulations, employers can require employees requesting FMLA leave to follow the employer's normal call-off procedures.

Group health plans that were required to comply with privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA) by April 14, 2003 (i.e., large health plans) now have an obligation to notify individuals who are covered by the plan that the privacy notice is available, and to tell them how to obtain the notice. This reminder notice must be sent at least once every three years.

The American Recovery and Reinvestment Act (ARRA), signed by President Obama into law on February 17, 2009, included changes to the health information privacy and security rules under HIPAA, the Health Insurance Portability and Accountability Act of 1996.

What you may assume is a relatively simple issue - how to calculate the total number of hours an employee works during a week - can be complicated. The construction industry particularly faces these complications because under the FLSA, your employees may perform activities that qualify as compensable time but do not meet what you would consider "work."

The Federal Trade Commission has delayed enforcement of its new identity theft prevention rule (or “Red Flags Rule”) until August 1, 2009. The FTC, on April 30, 2009, said the move is to give creditors and financial institutions more time to develop and implement written identity theft prevention programs. The delay in FTC enforcement does not affect other federal agencies’ enforcement of the original November 1, 2008, compliance deadline for institutions subject to their oversight.

When comprehensive immigration reform at the federal level stalled, many state governments decided to take matters into their own hands. Since 2006, many states have enacted laws which provide for employer sanctions related to hiring unauthorized workers – independent of any monetary or criminal sanctions available for federal immigration violations.

The road to a green card is often measured in years rather than months. This has become particularly true for many employment-based green card cases. As discussed in the August 2008 issue of the Immigration eAuthority, in 2004 the U.S. Department of Labor (DOL) projected that permanent labor certifications filed using the new Program for Electronic Review Management system (PERM) would take 45 to 60 days to process, unless the case was subject to an audit. Rarely in the history of PERM have those timeframes been met.

On April 9, a Texas court issued a temporary injunction blocking the Texas Department of Public Safety (DPS) from enforcing rules that limit the issuance of driver licenses to temporary visitors and non-citizens (such as H-1B workers). However, the rules will remain in effect while an appeal filed by DPS is considered.

The regulation requiring certain federal contractors to use E-Verify is once again being delayed from May 21 until June 30. A notice was published in the Federal Register on April 16 confirming the delay. This is the third delay in implementation of the rule which was originally expected to be effective on January 15, 2009. E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. The rule would require participation in E-Verify by certain federal contractors and their subcontractors.

In light of continuing economic concerns, many were surprised by recent confirmations from White House staff that President Barack Obama’s Administration is preparing to begin a push for comprehensive immigration reform. While Senator Charles Schumer (D-New York) went so far as to state that he believes comprehensive immigration legislation could be approved this year, White House Press Secretary Robert Gibbs indicated the process would begin this year, but does not think it will be completed. Recent public statements by President Obama reinforce his immigration policy, which includes creating secure borders and bringing undocumented persons out of the shadows, perhaps after paying a significant fine. While we await immigration reform, published reports indicate that Department of Homeland Security Secretary Janet Napolitano delayed a series of proposed worksite raids, refocusing enforcement efforts on businesses and executives instead of workers.

On April 22, the U.S. Supreme Court heard oral arguments regarding the internal clash between Title VII’s disparate impact and disparate treatment provisions. Ricci v. DeStefano, U.S., No. 07-1428 (oral argument 4/22/09). The case is based upon the city of New Haven’s decision not to certify the results of two 2003 firefighter promotional exams - one for captain, and one for lieutenant – when 14 of the top 15 scores were earned by white candidates. The district court dismissed a lawsuit filed in 2004 on behalf of 17 white and one Hispanic firefighters; that decision was upheld by the 2d U.S. Circuit Court of Appeals. The case was accepted for argument by the Supreme Court, primarily to address the issue of whether the city’s decision violated Title VII and/or the 14th Amendment’s Equal Protection Clause.

After dealing with the economic downturn and the new FMLA regulations, amended ADA obligations, and new COBRA requirements, HR and legal professionals now move on (or perhaps return) to pandemic planning. The media attention and public interest are intense, especially after the World Health Organization (WHO) raised the level of influenza pandemic alert from phase 4 to phase 5. As WHO Director-General Dr. Margaret Chan said, "[C]ertain actions should now be undertaken with increased urgency, and at an accelerated pace."

On April 26, 2009, the U.S. Department of Health and Human Services issued a nationwide public health emergency declaration in connection with human infections of the H1N1 influenza virus (aka "swine flu"), and the World Health Organization is on the verge of declaring it a pandemic. The Centers for Disease Control and Prevention reported 286 laboratory-confirmed U.S. cases in 36 states as of May 4, 2009, and medical professionals predict that H1N1 may last well through next fall and winter, when it is predicted to gain momentum in North America. Although the final magnitude and scope of H1N1 is unknown, employers will face many challenging issues that will require them to take affirmative steps to protect their workers and operations.

Since the start of the recession in December 2007, 5.1 million jobs have been lost, according to March 2009 figures from the U.S. Department of Labor’s Bureau of Labor Statistics. Almost two-thirds (3.3 million) of losses occurred November 2008 through March 2009. Additionally, figures from the federal Equal Employment Opportunity Commission (EEOC) show that age-related discrimination allegations by employees are at a record high, vaulting 29% to 24,582 charges filed in the year ending September 30, 2008, up from 19,103 in 2007. While EEOC figures show overall employment discrimination complaints are also at a high (up 15% to 95,402 complaints), age-related complaints had the most remarkable increase.

Michelle's Law will take effect beginning October 9, 2009 (or January 1, 2010 for calendar year plans). It requires group health plans and group-health-plan-insurance issuers to continue coverage for dependent college students when they are forced to take a medically necessary leave of absence from school. The law was named after Michelle Morse, a college student in New Hampshire who was diagnosed with cancer but continued her studies on a full-time basis in order to avoid losing her health coverage under her parents' plan.

Employers wishing to reduce labor costs during these rough economic times may be considering eliminating matching contributions or other employer contributions to their tax qualified profit sharing and 401(k) plans. While its perfectly legal to make such changes, make sure that the plan documentation is properly and timely amended. Plan documentation includes the actual plan document, which can include both an adoption agreement and master plan document for prototype arrangements, and the Summary Plan Description.

Worksite Enforcement in the New Administration.

Update on Federal Contractor Regulations Requiring E-Verify.

Reminder: H-1B Petitions May Still Be Available for Fiscal Year 2010.

REMINDER: All U.S. Employers Must Use New I-9 Form Effective April 3, 2009.

New Form I-9 Employment Eligibility Verification.

Employers are beginning to confront many thorny questions about how best to respond to concerns about the spread of swine influenza (H1N1 virus) in the workplace. For several years, federal, state and local governments have been working hard to prepare for a potential pandemic. As part of that effort, the federal government developed a series of Frequently Asked Questions, addressing workplace issues that may arise in a pandemic.

It is certainly no secret that, during turbulent economic times, the number of discrimination claims tends to swell. Not only are more people out of work, but they are also financially motivated to explore their legal options.

In the past few days, United States health officials have declared a public health emergency over the steadily increasing number of humans affected by Swine Influenza. This declaration, and the intensive media coverage that followed, has sparked nationwide concern as the government and its various health agencies hasten to contain the outbreak. While Swine Influenza has yet to be declared a pandemic, the prospect that it could become more widespread raises an important question: does your business have sufficient mechanisms in place to deal with a public health emergency or other disaster?

Both the global financial system and the U.S. economy are under incredible stress. Companies are seeking ways to survive. To save money, many are slashing costs by cutting their workforce, including through hiring freezes, voluntary retirement programs, temporary shutdowns, and reductions in force. A reduction in force ("RIF") should be a carefully planned and implemented program that identifies inefficiencies in a company's workforce and reduces, or eliminates, such inefficiencies.

President Barack Obama has announced his intention to nominate two new members of the National Labor Relations Board. Both nominees are Democrats, and both are attorneys who currently represent labor unions.

With world governments and health organizations closely monitoring outbreaks of swine fl u, media and public attention is again focused on the threat of a pandemic fl u outbreak. These recent events present a good occasion for employers to conduct a self-audit of their own preparedness for human resourcesrelated issues in connection with a pandemic outbreak or any other emergency situation. These issues include high rates of employee absenteeism, a need to conduct off-site operations and general business disruption.

In today's tight economy, human resources professionals across every type of industry are feeling pressure to cut unnecessary costs and stretch already thin budgets. For those employers who have foreign-national employees on the payroll, this can mean investigating how to retain valuable foreign talent and expertise without having to incur any unnecessary expense. The most effective long-term way to minimize immigration-related expenditures is to ensure that the immigration status of all your foreign-national employees is kept current at all times.

Health experts have long warned that the question is not whether we will have a pandemic, but when one will strike. Now, world governments and health organizations are closely monitoring outbreaks of swine flu that have reportedly killed more than 150 people and sickened more than 1,600 across Mexico. As of April 29, confirmed U.S. cases of Swine Influenza A (H1N1) reportedly numbered over 60 in California, Kansas, Indiana, New York City, Ohio, and Texas which includes one death.

President Obama has announced the nominations of Craig Becker and Mark G. Pearce to fill two vacant seats on the National Labor Relations Board.

The Department of Health and Human Services (DHHS) has issued a formal declaration of public health emergency in response to recent human infections with a newly discovered swine influenza A ("swine flu") virus. To date, there have been confirmed cases of swine flu in at least five states, while the World Health Organization has reported confirmed cases in several other countries around the world. DHHS Secretary Charles Johnson has stated that "the declaration allows us the flexibility, while we learn more about the virus and its impact in the United States, to take additional steps to fully mobilize our prevention, treatment and mitigation capabilities should those actions become necessary."

Whether the Employee Free Choice Act is enacted into law in its present form (unlikely) or a modified form, we will have a legislatively created method to make organizing easier. Unions are doing everything they can to keep the heat on. Recently the United Food and Commercial Workers union distributed a leaflet containing a union authorization card at the bottom with a picture of President Obama at the top and quoting him as follows:

The effective date of the final rule requiring certain federal contractors and subcontractors to use E-Verify has been delayed until June 30, 2009. The rule will only affect federal contractors who are awarded a new contract after May 21, 2009 that includes the Federal Acquisition Regulation (FAR) E-Verify clause (73 FR 67704). Federal contractors may NOT use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify Clause.

The current state of the economy has affected employers nationwide by causing a widespread recent increase in mass reductions-in-force. In February 2009 alone, 2,769 mass reductions-in-force occurred, which affected 295,000 workers (seasonally adjusted), according to statistics released by the Labor Department. As employers prepare for a reduction-in-force, they must consider the ramifications to minimize their potential for legal liability under the WARN Act.

Pick up a newspaper or turn on the television and, undoubtedly, you will read or hear about a layoff. Unfortunately, layoffs are a reality in a bad economy. A layoff is not always necessary, however, and does not always produce the desired result – a better bottom line through reduced expenses.

With recent elections came new laws and/or proposed changes to existing laws that affect human resources practices. The following describes some recent proposed and enacted legislation and case law of which you should be aware in terms of keeping your employee handbook up to date both now and in upcoming months.

Title VII has long declared it unlawful to discriminate against a person in employment “because of … sex.” The limits of the term “sex” under Title VII, however, continue to evolve. Traditionally, courts have confined Title VII’s prohibition against sex discrimination to biological men and women, excluding from the statute’s protections any claims based on sexual orientation or gender identity.

Most employers probably are aware that incidents of swine flu have been reported in numerous states, including California, Texas, Ohio, Kansas, and New York. Although the World Health Organization has indicated that it does not have enough information regarding the strain of influenza to raise the global pandemic level alert, the Department of Homeland Security has declared a public health emergency in the United States. This allows funds to be released to support the public health response. Homeland security officials reportedly are responding aggressively with the expectation that the outbreak will spread.

With the increasing number of swine flu cases reported in the United States and Mexico, and the media attention surrounding the outbreak, many of your employees may have concerns regarding their potential for exposure to the flu at work and the steps you are taking to ensure their well-being.

Supplementing 2007 guidance concerning discrimination against employees with caregiver responsibilities, the U.S. Equal Employment Opportunity Commission has issued a best practices guidance entitled, “Employer Best Practices for Workers with Caregiving Responsibilities.” Caregiver responsibilities include child care, elder care and care for immediate family members with disabilities, among others.

The United States has declared a "health emergency" regarding an outbreak of swine influenza A (H1N1). As of April 28, 2009, the Centers for Disease Control and Prevention (CDC) confirmed 64 cases of infected individuals in five states (New York, California, Texas, Kansas and Ohio).1 California's governor has activated the California Department of Public Health's Emergency Operations Center. New York's governor has activated its emergency preparedness plan. Cases have been reported in Mexico, Canada, Spain, Scotland and New Zealand. Many in Mexico have died of the flu virus. On Saturday, April 25, 2009, the World Health Organization, upon the advice of the Emergency Committee called under the rules of the International Health Regulations, also declared this event a "public health emergency of international concern." The European Union's health commissioner has urged Europeans to avoid nonessential travel to the United States or Mexico. The CDC, on April 27, also issued a travel warning recommending that people avoid nonessential travel to Mexico.

In a new letter of interpretation, Occupational Safety and Health Administration has confirmed that injuries to employees sustained at off-site team-building events are recordable on OSHA logs, so long as the injuries also meet other general recording criteria (such as requiring medical treatment beyond first aid).

The American Recovery and Reinvestment Act of 2009 was enacted February 17, 2009, providing numerous avenues of opportunity for a variety of industries. Whether you need guidance on the legislation to point you in the right direction, updates on federal funding opportunities, assistance in responding to a federal or state request for proposal, or someone to lobby for your interests in Washington, Baker Donelson can help. Our attorneys and public policy advisors are well-versed in every aspect of the Act, from government contracting and infrastructure spending, to tax provisions, health IT requirements and private sector assistance. Click on the links below to view alerts and presentations by our attorneys and public policy advisors.

The federal government has decided to postpone until June 30, 2009, implementation of the E-Verify requirement for federal contractors, marking the third delay since the final rule was issued a little more than five months ago.

On April 4, 2009, legislation designed to protect workers from the hazards associated with combustible industrial dusts was reintroduced in the House of Representatives. H.R. 849, the “Worker Protection Against Combustible Dust Explosion and Fires Act” (“Act”), would require the Occupational Safety and Health Administration (“OSHA”) to issue rules regulating combustible industrial dusts. A prior version, H.R. 5522, passed the House, but was not voted on in the Senate by the end of the last session of Congress.

The U.S. Department of Labor’s Administrative Review Board ruled that a trucking company did not violate the Surface Transportation Assistance Act (“STAA”) by terminating a driver for insubordination, even though he had previously complained about driving a truck without air conditioning and refused to drive one that smelled of diesel fumes.

The applicability date of the rule requiring federal government contractors and subcontractors to begin using the USCIS E-Verify system has been delayed for the third time, until June 30, 2009.

EFCA update; It takes only two to tango, First Circuit says; Solis confirmed – "wealthy CEOs," beware!

Though the ink is hardly dry on the economic stimulus plan, Congressional Democrats have turned their attention to their next big fight: easing the way for labor organizing at companies big and small. On March 10th, both houses of the United States Congress introduced identical versions of the socalled Employee Free Choice Act (EFCA) legislation (S. 560 and H.R. 1409). This legislation is designed to make it dramatically easier for a union to organize your employees.

There's no question about it: the labor and employment law landscape changes daily. Whether it's the U.S. Supreme Court delivering a collective bargaining agreement surprise, the American Recovery and Reinvestment Act giving more responsibilities to contractors, FLSA opinion letter withdrawals or the EEOC's crushing news about discrimination claims, employers must stay on top of developments like never before. Click on the links below to learn more about the latest headlines.

Consistent with President Barack Obama's pledge to immigrant groups during his election campaign last year, the Obama Administration has revealed that discussions will begin as early as May for possible comprehensive immigration reform legislation in the Fall.

Signaling its renewed focus on enforcement, the Occupational Safety and Health Administration has announced it is developing six new National Emphasis Programs (NEPs). NEPs focus OSHA’s resources on industries, hazards, and occupational injuries and illnesses that need additional targeted enforcement, in the Agency’s view.

Last December, as the recession was beginning to deepen, Littler published an Insight, Furloughs and Reduced Hours: Cost-Cutting Strategies Other Than Layoffs, discussing several alternatives to layoffs, particularly mandatory furloughs of exempt employees, mandatory use of vacation/PTO during furloughs, and reduced workweeks, based on the limited legal precedent available at that time on these subjects. Recently, the U.S. Department of Labor (DOL) issued three opinion letters that address some of these alternatives. This Insight is an update to the December 2008 Insight and provides the latest legal analysis.

E-Verify is an Internet-based system operated by the Department of Homeland Security's U.S. Citizenship and Immigration Services (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers2 to verify3 electronically the identity4 and employment eligibility of their newly hired employees, regardless of citizenship. Specifically, the SSA5 will verify that the name, Social Security number, and date of birth are correct, and the DHS will verify that the employee is in an employment-authorized immigration status.

The Obama Administration has delayed yet again the start date for the requirement for federal government contractors to use E-Verify.

There are many legal and practical issues surrounding workforce reductions, layoffs, and other cost containment measures such as furloughs, reduced work schedules, and compensation adjustment. In this time of economic crisis, our clients frequently seek our assistance in implementing the various alternatives for tightening the Company belt. Members of our Employment Law and Benefits Groups are pleased to assist in addressing both the legal and practical implementation of workforce adjustments. Past articles on the topic in this newsletter have focused on such areas as avoiding the potential for discriminatory impact, federal Worker Adjustment and Retraining Notification Act obligations, and other overall employer obligations. Among the myriad of legal and practical considerations are the impact of workforce adjustments on employee benefits, such as the Company’s retirement plan(s) and COBRA obligations.

The Lilly Ledbetter Fair Pay Act of 2009 became law when signed by President Barack Obama on January 29, 2009 (Ledbetter Act). While relatively short in length, the Ledbetter Act has broad application for employers and likely will result in significantly more wage discrimination claims going forward. At minimum, and as explained in more detail below, the Ledbetter Act means employers need to conduct a privileged audit of their compensation practices to identify and resolve any potential discriminatory pay issues. Employers also need to review their procedures for setting employee compensation, both upon hire and during employment, to ensure that those decisions are non-discriminatory, and must create and maintain documentation showing that to be the case.

The Employee Free Choice Act (EFCA)—recently referred to by some commentators as the Employee Forced Choice Act—is proposed national legislation that would overturn nearly 60 years of traditional labor law by amending the National Labor Relations Act, in several unprecedented and extremely significant ways. In a nutshell, companies that are not currently unionized will have a substantially increased possibility of becoming organized.

Secretary of Labor Hilda Solis has announced that the Department of Labor’s Wage and Hour Division has begun the process of hiring 250 new field investigators to bolster the agency’s enforcement capabilities. This will increase the agency’s investigative staff by more than one third. Secretary Solis said on March 25, “As Secretary of Labor, I am committed to ensuring that every worker is paid at least the minimum wage, that those who work overtime are properly compensated, that child labor laws are strictly enforced and that every worker is provided a safe and healthful environment.”

The federal E-Verify rule has been postponed again, until June 30, 2009. On June 6, 2008, President Bush issued an executive order directing federal agencies to require federal contractors to agree to electronically verify their employees' eligibility to work legally in the United States, and a final rule implementing the order was issued on November 14, 2008, with an effective date of January 15, 2009. The U.S. Chamber of Commerce and other business groups sued to block the rule, and on January 9, 2009, the government announced that it would postpone implementation. The Obama Administration postponed the rule again until May 21, 2009, and now it has announced that it is extending the postponement yet again until June 30, 2009.

The federal government has announced a third delay in the implementation of the Federal Contractor E-Verify Rule. The new date for implementation of the rule is now June 30, 2009.

The U.S. government has published a notice in the Federal Register today further delaying implementation of a final rule that would have required certain federal contractors and their subcontractors to begin using the E-Verify program to electronically verify the work eligibility of their newly hired employees and existing employees assigned to the contract. The rule, set to go into effect on May 21, 2009, is now further suspended until June 30, 2009. This is the third time the rule has been delayed from its original January 15, 2009, effective date.

On April 1, the IRS published Notice 2009-27, completing the primary round of regulatory guidance regarding the COBRA subsidy provisions that were part of the American Recovery and Reinvestment Act of 2009 (“ARRA”). On April 2, the DOL revised its Q&As regarding the model ARRA COBRA notices that were published on March 19. Vedder Price has previously published Employee Benefi ts Briefi ngs regarding the COBRA provisions of ARRA (February 17, 2009) and the DOL model notices (March 25, 2009), both of which are available at www.vedderprice.com.

The National Labor Relations Act’s section 8(g) requires all labor organizations to give health care employers a minimum of 10 days’ notice before they can engage in a “concerted refusal to work.” The National Labor Relations Board has held that the act of unit members refusing to work voluntary overtime is considered a “concerted refusal to work” and requires a 10-day notice under the NLRA.

Beginning July 1, 2009, many employers and insurance companies will be required to report claims for workers' compensation claimants that are also Medicare beneficiaries to the Centers for Medicare and Medicaid Services (CMS) and become subject to a $1,000 per day per claimant penalty for failure to comply with this mandatory reporting requirement.

The sprawling stimulus legislation that may or may not jumpstart the U.S. economy has certainly jumpstarted employers' interest in coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). That's because the temporary federal COBRA subsidy for involuntarily terminated employees that is at the heart of the American Recovery and Reinvestment Act (ARRA) of 2009 represents the highest-profile expansion of the basic COBRA framework in its 23-year history. The subsidy took effect for monthly or other periods of COBRA coverage beginning after February 17, 2009.

On January 29, 2009, President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act. The Act requires employers to redouble their efforts to ensure that their pay practices are non-discriminatory and to make certain that they keep the records needed to prove the fairness of pay decisions.

After much speculation, the Employee Free Choice Act of 2009 (EFCA) was introduced in the 111th Congress on March 10. The bills introduced in both the House of Representatives, H.R. 1409, and Senate, S. 560, are identical to last year's measure, which passed the House but stalled in the Senate due to a filibuster on the motion to debate the bill on the Senate Floor. This year's bills were introduced with fewer original cosponsors amid increasing concerns regarding the economic impact of "card check" and compulsory arbitration of first contracts.

U.S. Citizenship and Immigration Services (USCIS) has announced that it will continue accepting H-1B visa petitions subject to the fiscal year 2010 (FY 2010) cap. Unlike last year, the cap was not reached during the initial filing period from April 1 to April 7. Last year, approximately 163,000 petitions were received during the initial filing period, including more than 31,000 filed under the advanced degree (“Master’s cap”) category. As of April 9, USCIS has received approximately 42,000 H-1B petitions counting toward the 65,000 FY 2010 cap and has announced that it has received nearly all cases it will accept under the 20,000 FY 2010 Master’s cap.

The U.S. Citizenship and Immigration Services (USCIS) announced on April 9, 2009 that it continues to accept H-1B cap subject petitions for FY2010 (October 1, 2009 to September 30, 2010) and will continue to do so until it determines that it has received sufficient petitions to reach the cap.

U.S. Citizenship and Immigration Services (USCIS) has announced that, between April 1, 2009, and April 7, 2009, it received almost half of the 65,000 petitions needed to meet the fiscal year 2010 cap. USCIS has also received "just short" of the 20,000 petitions needed to meet the cap for foreign workers with U.S. advanced degrees. Official numbers have not been released at this time, but USCIS will continue to accept H-1B petitions until the respective caps have been met. Any petitions received on the day that the respective caps have been met (i.e., the "final receipt day") will be selected for adjudication based on a random lottery process.

U.S. Citizenship and Immigration Services (USCIS) has announced that it has received approximately half of the H-1B non-immigrant visa petitions needed to meet the H-1B regular cap for Fiscal Year 2010 (beginning October 1, 2009) and almost all of the visa petitions needed to meet the U.S. master’s degree cap. USCIS will continue to accept new H-1B visa petitions and monitor the number of petitions received for the 65,000 visas available under the regular cap and the 20,000 visas under the U.S. master’s degree cap.

The State Department's May 2009 Visa Bulletin announces that all visa numbers for the employment third preference are used up until October 1. Persons with adjustment of status applications filed and receipted already can continue "in abeyance" with interim work and travel, as appropriate. Immigrant visa appointments already scheduled should go forward. It would appear that USCIS will continue to receive through the end of April adjustment of status applications based on "priority dates" that were current in the April Visa Bulletin, given the debacle of previous years when it was handled otherwise.

The American Recovery and Reinvestment Act of 2009 (ARRA), signed into law by President Obama on February 17, 2009, provides a 65% COBRA subsidy for eligible employees (and their covered dependents) who lose group health plan coverage due to an involuntary termination of employment during the period September 1, 2008, through December 31, 2009.

A teacher approaches you at the beginning of the school year and tells you that she is pregnant and will be needing time off in early April for the birth of her baby. She plans to return for the last two weeks of the term. Another employee, your football coach, approaches you and states that his father, an Army Sergeant Major, suffered a serious injury while in Iraq and he needs one day off each week for the next eight weeks to assist in his father's planned medical treatment. What are the school's obligations in these situations?

Before most of us even had time to put up our 2009 calendars, huge changes in employment laws were on the way, courtesy of Congress and the new administration. By the end of January, major amendments to the Americans With Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) went into effect. The following month, the economic stimulus package, formally known as the American Recovery and Reinvestment Act of 2009 (ARRA), was signed into law. Among other things, ARRA substantially changed employers' COBRA obligations, allowing eligible involuntarily terminated employees to pass on 65 percent of the cost of COBRA premium payments to their employers.

The IRS has issued additional guidance concerning the new COBRA subsidy in the form of Notice 2009-27, which can viewed on the IRS website (www.irs.gov).

The American Recovery and Reinvestment Act of 2009 (ARRA) is infusing billions of dollars into the private sector. To ensure that the monies are actually used for their intended purpose, Congress added a powerful whistleblower provision into the law.

This is a reminder that, in accordance with amendments made to COBRA by the 2009 American Recovery & Reinvestment Act ("ARRA"), COBRA Plan Administrators must provide amended COBRA notices to assistance eligible individuals on or before April 18, 2009.

In Notice 2009-27, the Internal Revenue Service (IRS) answered many questions regarding the new COBRA rules under the American Recovery and Reinvestment Act of 2009. This advisory supplements our February 19, 2009, and March 19, 2009, advisories and highlights the IRS' new guidance regarding involuntary terminations, how to calculate the 65 percent COBRA premium reduction (and corresponding payroll tax credit or refund), changes to the COBRA premium and retiree, dental and vision coverages under the new rules.

USCIS did not receive enough H-1B petitions to use up the 85,000 slots available for work to begin on October 1, 2009. This means that all petitions successfully filed in the first five days (through April 7, 2009) will be given a slot. USCIS has not announced how many petitions have been received-- only that it has not reached either the 20,000 "exemption" for workers with a masters degree or higher from a U.S. institution or the 65,000 cap for all other H-1B workers. Employers wishing to file petitions should submit them as quickly as possible. Once the cap is reached, the petitions received on the day that either cap is reached will be placed in a random selection for that cap, but no petitions received on prior days will be forced into the random selection.

Just when you thought you finally understood the I-9 form that went into effect in 2007, the U.S. Citizenship and Immigration Services (“USCIS”) produced a new form—one that went into effect on April 3, 2009.

As the steady drumbeat of grim economic news continues, more and more employers are forced to face the unpleasant prospect of laying off valued employees to survive. When times are tough, the last thing a struggling business needs is a class-action lawsuit claiming that the former employees are entitled to 60 days' additional pay under federal or state law.

You may say that it is in the company's files which are locked in _____'s office or the information is in a certain directory on the company's server. We hope you're right. But according to a recent survey, information you believe is confidential may also be in a number of other places as well, including your competitor's offices.

The U.S. Department of Labor ("DOL") has issued four Model Notices to help employers implement the new mandatory COBRA subsidy provisions of the "The American Recovery and Reinvestment Act of 2009," also known as the Stimulus Bill.

This is a reminder that effective today (April 3, 2009) employers must use the revised I-9 form. As discussed in prior Legal Alerts, U.S. Citizenship and Immigration Services (USCIS) has published an interim final rule that narrows the list of documents employers may accept to verify employment authorization on the Form I-9.

Model COBRA Notices Published - Immediate Attention Required.

IRS COBRA Subsidy Guidance Published - DOL Model COBRA Notice Guidance Revised.

Signaling its renewed focus on enforcement, the Occupational Safety and Health Administration has released a revised manual guiding the conduct of its inspections.

The Occupational Safety and Health Administration modified its standards on personal protective equipment (“PPE”), effective February 2008. Although the new rules have been in effect for about a year, employers continue to have questions about the standard. This article attempts to make clear the types of PPE employers are required to provide at no cost to employees and the exceptions. PPE includes items such as safety glasses, safety-toe shoes, protective gloves, respiratory protection, and personal fall arrest systems. Employers affected by these standards include those in general industry, longshore and harbors, and construction.

On March 31, 2009, the Federal Register (Volume 74, Number 60) published new rules governing projects funded by the American Recovery and Reinvestment Act of 2009 (Recovery Act). Several of these rules provide the government with additional rights, and others charge contractors with additional responsibilities. Interested parties should submit written comments to the FAR Secretariat on or before June 1, 2009 to be considered in the formulation of a final rule. Here is what you should know.

On March 25, 2009, a bill was introduced in the House of Representatives that would create a family leave insurance program giving eligible employees up to 12 weeks of paid family leave in a 12-month period. The Family Leave Insurance Act of 2009 (H.R. 1723) builds on the Family and Medical Leave Act of 1993 (FMLA) and adopts many of the definitions of that law, with certain exceptions.

On February 4, 2009, President Obama signed the Children's Health Insurance Program Reauthorization Act of 2009 (CHIP). CHIP extends and expands the State Children's Health Insurance Program (SCHIP), and it contains several provisions that affect employer-sponsored group health plans.

Starting April 3, 2009, employers must use the new version of the Department of Homeland Security's Form I-9, Employment Eligibility Verification (Rev. 02/02/09). The Department of Homeland Security also has issued a revised Handbook for Employers to be used with the new Form I-9. The new form and handbook are available on the I-9 Compliance page of the Fisher & Phillips website. The new Form I-9, among other things, narrows the list of acceptable documents to show identity and work authorization and eliminates the use of expired documents. Please view our January 20, 2009 Legal Alert for a detailed description of the proposed changes. All employers are required to complete and retain a Form I-9 for each employee hired after November 6, 1986 to show that the employee is authorized to work in the United States. Additionally, the employer must re-verify documents for any employees whose work authorization documents are expiring.

This article, authored by Tyler Paetkau of Littler’s San Francisco office, examines the legislative history and evolving case law interpreting the “foreign compulsion” defense to otherwise clear violations of Title VII, the ADEA and the ADA. In the article he also offers a practical solution to help employers, employees and the courts determine when this defense applies to immunize U.S. employees from liability under these antidiscrimination laws.

On February 4, 2009, President Obama signed into law the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA). CHIPRA reauthorizes and expands the scope of the State Children's Health Insurance Program (now known as CHIP). Of special note are new requirements that directly affect employer-sponsored group health plans: (1) a new Health Insurance Portability and Accountability Act (HIPAA) special enrollment period that takes into account changes in eligibility for health benefits provided under Medicaid or CHIP; and (2) new notice requirements for employers including a notice of availability of benefits under Medicaid or CHIP and a notice to the state of coverage coordination information.

Following a brief moratorium, the new I-9 form goes into effect on Friday, April 3, 2009. Old versions of the I-9 form should be discarded and the new form should be put into immediate use. The I-9 form and its instructions can be found at the following link: http://www.uscis.gov/i-9.

Employers now have an answer to their single biggest and most vexing question about the elaborate new federal subsidy arrangement under the Consolidated Omnibus Budget Reconciliation Act (COBRA), but it may not be the answer they were hoping for or expecting. Under new IRS Notice 2009-27, an “involuntary termination” would include certain employee-initiated “good reason” terminations, layoffs with recall rights, and even certain cases where employees took severance buy-outs.

Employers must begin using a new Employment Eligibility Verification Form (Form I-9) effective today, April 3, 2009. The new form was originally scheduled to be required on February 2, but U.S. Citizenship and Immigration Services (USCIS) delayed implementation until April 3. The new Form I-9, which can be found on the agency’s website, is dated 02/02/2009 on the lower right hand corner. USCIS also released a new Handbook for Employers that has been modified to reflect changes made to the new Form I-9 and corresponding regulations.

On March 31, 2009, the Internal Revenue Service ("IRS") issued long-awaited guidance, Notice 2009-27, relating to the premium assistance for COBRA continuation coverage available under the American Recovery and Reinvestment Act of 2009 ("ARRA"). This guidance provides the background for the premium assistance and the extended election period for COBRA continuation coverage.

Does your job require you to visit secure port facilities, vessels, or offshore platforms in the course of an investigation or for another business reason? Do your employees (including truck drivers, mechanics or other workers) have a need to access these facilities to carry out their jobs? If so, you need to know about TWICs – otherwise, you may find yourself or your employees unable to enter such facilities.

Charitable organizations, public schools and universities may sponsor retirement plans that are governed by Section 403(b) of the Internal Revenue Code ("Section 403(b)"). The rules under Section 403(b) are different than the rules governing other types of retirement plans. In July 2007, the Internal Revenue Service (IRS) and the Department of Treasury issued final regulations governing these arrangements. The regulations comprise the first comprehensive Section 403(b) plan guidance in over 40 years and make major changes to the 403(b) playing field. The final regulations incorporate previous section 403(b) guidance made during the intervening years that significantly narrowed the differences between 403(b) plans and other tax-qualified retirement arrangements, especially 401(k) plans.

Employers scrambling to comply with the COBRA premium assistance and second-chance election provisions of the American Recovery and Reinvestment Act of 2009 (also referred to as the “federal stimulus bill”) have some useful guidance in the form of eagerly-awaited model notices and other informal guidance from the Department of Labor (DOL).

United States Citizenship and Immigration Services (USCIS) has recently provided some good news on a few different fronts, though the benefits of these items accrue to relatively narrow classes of immigration applicants.

The world of immigration compliance continues to be a moving target for employers. In recent months, stricter state and federal government compliance provisions have been initiated, though the implementation of several of these measures has been delayed. A new Employment Eligibility Verification Form (Form I-9) was finalized in December, and then implementation was delayed from February to April (see the January 2009 issue of the Immigration eAuthority). A regulation requiring certain federal contractors to use E-Verify was published in November and then delayed twice and now is scheduled to be effective on May 21 (see Ogletree Deakins’ November 14, 2008 E-Alert). Several states have acted to require employers to use E-Verify, the Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of newly-hired employees. Arizona requires all employers to use E-Verify, while the other states typically require certain employers with state government contracts to use the electronic verification system.

The implementation of the regulation requiring employers to use a new Employment Eligibility Verification Form (Form I-9) is scheduled to go into effect on April 3. The new form was originally scheduled to be required on February 2, but U.S. Citizenship and Immigration Services (USCIS) delayed implementation until April 3.

Employers need to act urgently to identify any individuals they wish to sponsor for H-1B status. The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) begins on April 1, 2009. Persons currently employed as F-1 students or J-1 trainees and persons outside of the United States commonly require new, cap-subject H-1Bs. April 1 is the initial filing date for petitions seeking H-1B status with an effective date of October 1, 2009. Cases actually need to be mailed on March 31 to secure receipt by U.S. Citizenship and Immigration Services (USCIS) on April 1.

The new American Recovery and Reinvestment Act of 2009 (“ARRA”) provides reductions in premiums and additional opportunities to elect continued group health coverage under COBRA for employees who became eligible for COBRA coverage as a result of an involuntary termination of employment between September 1, 2008, and December 31, 2009. The premium reduction and additional election opportunity also apply to members of the employee’s family who were covered under the group health plan at the time of the employee’s involuntary termination. Employees and family members who are eligible for the COBRA premium reduction are “assistance eligible individuals” under the ARRA.

Over the recent past and continuing today, headlines and news reports have reported the demise of U.S. real property values. The falling real estate market and the consequent reduction in property values are not limited to residential property. In fact, the decline in commercial and industrial property values may rival the fall in residential values.

Health care providers and businesses that play in the electronic medical/health record space should take heed: The Health Information Technology for Economic and Clinical Health Act (HITECH Act), which is part of the American Recovery and Reinvestment Act of 2009 (the "Stimulus Package") signed into law on February 17, 2009, will bring about major changes to the requirements, application and penalties associated with the Health Insurance Portability and Accountability Act of 1996 Privacy and Security Regulations (referred to jointly as "HIPAA" and singly as the "Privacy Regulations" and the "Security Regulations" for purposes of this Advisory).

Employers are reminded that, beginning April 1, 2009, U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B temporary worker petitions for foreign nationals requesting an employment start date on or after October 1, 2009.

Affirming an administrative law judge’s rulings, the National Labor Relations Board has found that an employer violated the National Labor Relations Act by firing its delivery workers for taking steps toward the filing of a wage and hour lawsuit, and videotaping the discharged employees as they picketed in front of the employer’s restaurants.

A recent decision of the U.S. Department of Labor may expand whistleblower liability under the Sarbanes-Oxley Act (“Sarbanes-Oxley” or “SOX”) to private entities engaged in business with publicly-traded companies. Sarbanes-Oxley applies to companies listed on publicly-traded stock exchanges and, in section 806, protects employees who report certain wrongdoing to their superiors from retaliation.

The Family and Medical Leave Act allows individuals to take unpaid leave from work and requires that in most cases, such individuals be returned to their prior position or an equivalent one upon return from the leave. The 7th U.S. Circuit Court of Appeals has clarified that requirement, and has held that when an employer discovers information during an employee’s FMLA leave that would otherwise form the basis of a valid termination, the FMLA does not act as a bar to such adverse employment action.

On March 19, the U.S. Department of Labor (DOL) published four model COBRA notices relating to the COBRA subsidy provisions of the American Recovery and Reinvestment Act of 2009 (ARRA). These model notices require immediate attention by employers and their COBRA administrators, as an important April 18 deadline for distributing the so-called Second Election Notice now looms.

House Passes Bill Levying 90% Tax on Bonuses Handed Out by TARP Recipients; Similar Senate Bill Forthcoming; Challenges Certain if Legislation Proceeds

In a recent letter of interpretation addressing a common issue at worksites around the country, OSHA confirmed that injuries to employees sustained at the worksite as a result of “horseplay” are recordable on OSHA Logs, so long as the injuries also meet other general recording criteria (such as requiring medical treatment beyond first aid). Employers are encouraged to review their recordkeeping practices to ensure that they are complying with this interpretation of OSHA’s recordkeeping rule. A copy of OSHA’s letter is linked below.

Pennsylvania Senator Opposes EFCA’s Elimination of Secret Ballot in Union Representation Elections and Compulsory Arbitration of Collective Bargaining Contracts.

This is the first of a five-part series of newsletters covering a topic you can overlook during a construction project - wage and hour issues under the Fair Labor Standards Act (FLSA).1 You may know the key protections the FLSA provides - a minimum wage and the requirement that you pay overtime for hours worked over 40 hours per week.2 As you probably suspect, though, the FLSA contains more than this, and ignorance of its provisions can delay your project and cost you money.

The new Form I-9 (revision date 2/02/2009) is currently scheduled to go into effect on April 3, 2009. The new I-9 form is available on the U.S. Citizenship and Immigration Services website. The new I-9 and the interim rule creating it were originally published in the Federal Register on December 17, 2008, with a correction published on January 16, 2009. However, on January 30, 2009, the U.S. Department of Homeland Security (DHS) announced that implementation of the new I-9 would be postponed until April 3, 2009. Notice of the delay appeared in the February 3, 2009 edition of the Federal Register.

Congress recently passed the Children's Health Insurance Program Reauthorization Act of 2009 ("CHIP"). The new law, which expands eligibility for states' existing children's health insurance programs, contains important provisions affecting employer-sponsored group health plans. The law becomes effective April 1, 2009 and includes new special enrollment rights for employees and their dependents, a premium assistance plan for eligible low-income children covered by an employer's group health plan, and new notice and disclosure requirements.

On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (the "Act"). The Act provides a subsidy for COBRA premiums for assistance eligible individuals for up to nine months and imposes additional notice requirements. These changes are effective immediately. Baker Hostetler previously distributed an alert entitled COBRA Change Under the American Recovery and Reinvestment Act of 2009 to highlight these changes. On Thursday, February 19, the U.S. Department of Labor published new model COBRA notices to make it easier for employers and administrators to comply with the new COBRA provisions. In addition, the Department of Labor has issued guidance to help employers better understand their new COBRA (and COBRA-related) rights and obligations.

The Children’s Health Insurance Program Reauthorization Act of 2009 (“CHIPRA”), enacted February 4, 2009, requires group health plans to provide two new special enrollment rights beginning April 1, 2009.

The U.S. Department of Labor released yesterday model notices and additional guidance to assist employers in meeting their new COBRA obligations under the American Recovery and Reinvestment Act of 2009 (also known as the “stimulus package”), which became effective February 17, 2009.

As we all know, many employers across the United States are facing difficult workforce “right-sizing” decisions due to steep declines in revenues, decreased demand for goods and services, and an extremely tight credit market.

The American Recovery and Reinvestment Act of 2009 materially altered the Consolidated Omnibus Budget Reconciliation Act (COBRA) and imposed new rules that will require employers and plan administrators to take certain actions before April 18, 2009. Today, the U.S. Department of Labor (DOL) issued model notices to be used with the new COBRA rules. This advisory briefly summarizes the new rules and comments on how they affect separation pay arrangements.

Yesterday, the U.S. Labor Department (DOL) released model notices regarding the new COBRA requirements that were enacted as part of the American Reinvestment and Recovery Act of 2009 (ARRA). The law mandates that plans notify certain current and former participants and beneficiaries about the COBRA premium subsidy and "second chance" COBRA election opportunity by no later than April 18, 2009.

On March 19, 2009, the U.S. Department of Labor (“DOL”) issued several model notices to cover a variety of COBRA situations impacted by the American Recovery and Reinvestment Act (the recent stimulus law). First and foremost, employees who were involuntarily terminated on or after September 1, 2008, and who are not currently covered under COBRA, may have a second chance to elect COBRA. They must be notified of their new COBRA rights and the new 65% COBRA subsidy by April 18, 2009. The DOL has provided a model notice for that purpose. Employers should provide such notice as soon as possible because former employees have 60 days from the date the notice is provided to exercise their second chance election rights, and employers will want to start the clock running.

The United States Department of Labor (“DOL”) today posted on its website model notices and application forms to be used by employer-sponsored health plans and individuals electing COBRA in connection with the American Recovery and Reinvestment Act of 2009 (“ARRA”) COBRA premium subsidy. The ARRA requires that group health plans notify certain current and former plan participants about the COBRA premium subsidy.

Earlier today, the Department of Labor ("DOL") released model COBRA Notices required under the COBRA provisions of the 2009 American Recovery & Reinvestment Act ("ARRA" or "Act"). We previously posted legal alerts about how the Act impacts COBRA coverage, and the means by which employers, where applicable, may claim the tax credit for COBRA subsidies paid under the Act.

The grossly misnamed and highly controversial Employee Free Choice Act (“EFCA”) was introduced by Senators Ted Kennedy (D-MA) and Tom Harkin (D-IA), and Representative George Miller (D-CA) in the 111th Congress on March 10, 2009 (H.R. 1409, S. 560). The legislative fight over EFCA is a battle royale between business and organized labor and is a defining moment in the history of labor relations in the United States. The President of the U. S. Chamber of Commerce, Tom Donahue, in a major address in Washington last week, called this legislation “Armageddon” and a “game changer.” EFCA is clearly the most ambitious and transformative piece of labor legislation to come before Congress since the 1935 enactment of the National Labor Relations Act (“NLRA”) and would radically alter the balance of power between management and labor.

According to its preamble, the American Recovery and Reinvestment Act of 2009 (“the Recovery Act”) is intended to promote job preservation and creation, infrastructure investment, energy efficiency and science, assistance to the unemployed and fiscal stabilization. But employers should be aware that the Recovery Act also creates powerful “whistleblower” protection for employees. The Act’s whistleblower provisions apply to employers that receive a contract, subcontract, grant or other payment funded in whole or in part by the federal stimulus package.

Many companies affected by the current economic downturn are searching for ways to help weather that storm. Occasional reduction in work hours, implementing mandatory vacations, or instituting short-term furloughs can help an employer to retain experienced employees, while allowing the company to achieve cost savings in this time of economic crisis. The Department of Labor (DOL) recently released three opinion letters written in January of this year in response to employer inquiries about the effect of such short-term shut-downs on employees’ exempt status under the Fair Labor Standards Act (FLSA).

The Office of Federal Contract Compliance Programs (OFCCP) has sent out a new wave of Corporate Scheduling Announcement Letters (CSAL) to the corporate office of employers with at least two establishments listed for possible compliance review during the fiscal year (October 1st to September 30th). Because this is the second-round release of this scheduling cycle, the list of establishments included with the CSAL will include at least one newly identified establishment. As in the past, this letter does not immediately initiate a compliance review. Instead, it provides employers with advance notice of those establishments that are scheduled for likely audits.

Citing the need to convene quickly a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel on diacetyl, the Occupational Safety and Health Administration (OSHA) on March 17 withdrew its January Advance Notice of Proposed Rulemaking (ANPR) on “Occupational Exposure to Diacetyl and Food Flavorings Containing Diacetyl.” 74 FR 11330. OSHA states in the withdrawal notice that members of the public still are welcome to submit comments to OSHA and those comments will be made part of the rulemaking record.

Responding, albeit slowly, to complaints from stakeholders on both sides, the U.S. Department of Labor issued new FMLA regulations (effective January 16, 2009) substantially altering a number of familiar FMLA procedures.

Change was the buzzword of the 2008 Presidential Election. While much of the nation is focused on the economy, the Obama administration and Congress are preparing to introduce a wide array of laws that have the potential to radically impact the American workplace.

The American Recovery and Reinvestment Act of 2009 (ARRA), recently signed into law by President Obama, provides for unprecedented levels of investment in infrastructure, energy, and research. While the government's outlay of nearly $500 billion in stimulus spending offers many businesses the prospect of brighter economic days, it is important for businesses who receive those funds to know that the ARRA contains sweeping new protections for public and private employees who blow the whistle on gross mismanagement or waste of covered funds, creation of public health or safety risks, or violation of laws or regulations relating to the grant of the funds.

Ninth Circuit Holds that RLA Does not Pre-empt Employees' State Law Claims; NMB Finds Delta and Northwest Operate as Single Transportation System; House Passes Airline Flight Crew Technical Corrections Act; Federal Court Finds Flight Attendant Candidates Not Entitled to Compensation for Time Spent in Training; OSHA Orders American Airlines to Reimburse Pilots for Sick Time; Save the Date: Ford & Harrison's 2009 Airline Labor and Employment Law Symposium.

The legal press is full of bad news regarding the economy's effect on law firms. Hardly a day goes by without news of layoffs and even the dissolution of firms considered to be robust just months ago. The same media have noted no shortage of employment law work, which is true for us and colleagues with whom I have spoken.

Last month, the 10th U.S. Circuit Court of Appeals determined that Oklahoma laws supporting the right of individuals to possess firearms in locked vehicles on company property are not preempted by the federal Occupational Safety and Health Act, and therefore are enforceable. That decision rested on the facts that the Oklahoma state statutes were instituted to regulate employees as members of the general public and not as “workers” and, therefore, that the statutes did not conflict with OSHA standards.

Yesterday, both houses of the United States Congress introduced identical versions of the Employee Free Choice Act (EFCA) legislation (S. 560 and H.R. 1409). This legislation is designed to make it dramatically easier for a union to organize your employees.

Tom Desmond, Shareholder and Co-Chair, Executive Compensation Practice Group of Vedder Price, joined Todd Leone, President & Founder of Amalfi Consulting, Inc. to discuss TARP & Executive Compensation Limits.

Many employers in today's difficult economy are faced with cash-flow problems due to shrinking lines of credit and a lack of liquidity. These problems often leave employers without sufficient resources to timely pay all obligations, and employers must decide which obligations will receive priority and which will be postponed. One obligation that some employers often delay is the payment of employment taxes to the Internal Revenue Service. This Focus addresses the obligations of employers with respect to employment taxes as well as the consequences to both the employers and certain associated individuals, including directors, officers, managers and employees, for failing to timely meet those obligations.

In this article, the authors discuss noncompete agreements in the context of federal banking law. These agreements can provide a bank much needed protection against harmful competition from a separated officer. However, the authors caution, a noncompete agreement tied to a severance package requires special care to ensure enforceability.

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act (“ARRA”) into law. The stated purpose of the ARRA, often referred to simply as the “stimulus bill,” is to improve our economy by, among other things, creating and saving jobs, improving affordable health care, providing tax relief, and improving the nation’s infrastructure.

In May 2008, the Genetic Information Nondiscrimination Act of 2008 (GINA) became law. Congress enacted this law in recognition that advances in genetics and the development of genomic medicine could lead to discrimination against persons based on genetic information, not only with respect to the provision and underwriting of insurance, but also in employment.

On March 10, 2009, Senators Tom Harkin (D-IA) and Ted Kennedy (D-MA) and Representative George Miller (D-CA) formally introduced the Employee Free Choice Act (EFCA) in the 111th Congress (H.R. 1409, S. 560). There were 40 Senate co-sponsors and 223 House co-sponsors for the companion bills. Referring to the current economic crisis, Senator Kennedy said, "The Employee Free Choice Act will give these hardworking men and women a greater voice in the decisions that affect their families and their futures.

Effective January 18, 2009, the U.S. Department of Homeland Security (DHS) expanded the categories of non-U.S. citizens required to provide digital fingerprints and a photograph upon entry to the United States through the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program. Previously, certain temporary visitors (such as entrants under the Visa Waiver Program (VWP)) had been subject to US-VISIT procedures. The program expansion adds virtually all non-U.S. citizens, including lawful permanent residents (green card holders), arriving at airports to US-VISIT. Among those excepted from coverage are Canadians applying for admission to the United States as B-1/B-2 visitors and most lawful permanent residents arriving though land ports.

The economic crisis has employers considering unprecedented measures to cut expenses and reshape workforces to ensure maximum efficiency. H-1B employers need to be mindful of special considerations impacting them in the case of a layoff, furlough, pay reduction or other material change in the H-1B worker’s terms of employment.

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) begins on April 1, 2009. Persons currently employed as F-1 students or J-1 trainees and persons outside of the United States commonly require new, cap-subject H-1Bs. April 1 is the initial filing date for petitions seeking H-1B status with an effective date of October 1, 2009. (Cases actually need to be mailed on March 31 to ensure receipt by USCIS on April 1.)

The American Recovery and Investment Act of 2009 (also referred to as the “stimulus bill”) signed by President Barack Obama on February 17 contains a provision requiring recipients of TARP funds or Federal Reserve loans to comply with requirements normally placed on H-1B dependent employers. Generally, an H-1B dependent employer is one with 15 percent or more of its total workforce comprised of H-1B workers. Such dependent employers must make additional attestations in hiring H-1B workers, including:

U.S. Citizenship and Immigration Services (USCIS) issued a press release on January 30 delaying the implementation of the regulation requiring employers to use a new Employment Eligibility Verification Form (Form I-9). The new form was originally scheduled to be required on February 2, 2009. USCIS instead reopened the comment period on the new regulation through March 4 and currently plans to implement the new form and corresponding documentary changes on April 3. For an overview of the changes to the I-9 process contained in the original regulation, see the January 2009 issue of the Immigration eAuthority.

After months of speculation regarding when the Congressional debate over the Employee Free Choice Act (EFCA) would begin, this controversial legislation was re-introduced today in both the United States Senate (S. 560) and the House of Representatives (H. 1409). As reported in previous updates and E-lerts, EFCA would eliminate secret ballot union elections, dramatically change the process by which a first collective bargaining agreement is negotiated, and significantly increase the penalties employers face for unfair labor practices without imposing stiffer sanctions for labor unions.

The Employee Free Choice Act was introduced in both houses of Congress today. The bill would allow labor unions to bypass secret ballot representation elections that have been in place for 75 years in favor of a streamlined process known as "card check." It also contains binding arbitration provisions that would allow an outside arbitrator to dictate the terms of a first contract in the event that the parties cannot reach agreement within the first four months of negotiations, and it would impose substantially increased penalties against employers who commit unfair labor practices.

Big Labor cashed in on its support of union-friendly candidates last fall when the perversely named Employee Free Choice Act (EFCA) was introduced in the House and Senate yesterday. Labor leaders hope EFCA will be the "magic formula" that helps reestablish the power of big labor unions, which have lost thousands upon thousands of members in recent years. To view the text of the legislation as it was introduced in the House, please click here.

On February 17, 2009, President Obama signed into law The American Recovery and Reinvestment Act of 2009 (commonly known as the “Stimulus Bill”), which imposes restrictions on employers who are Troubled Asset Relief Program (“TARP”) recipients or recipients of certain Federal Reserve loans. The new provision, called the “Employ American Workers Act,” restricts TARP recipients and recipients of Federal Reserve loans offered pursuant to Section 13 of the Federal Reserve Act from hiring foreign nationals in H-1B (Specialty Occupation) visa status for a two-year period, unless the employer makes certain attestations regarding displacement and recruitment of U.S. workers.

On Tuesday, March 10, the controversial Employee Free Choice Act (“EFCA”) was introduced in both the U.S. Senate and House of Representatives. The bill (H.R. 1409, S. 560), which is sponsored by House Education and Labor Committee Chair Rep. George Miller (D-California) and Senator Tom Harkin (D-Iowa), would amend federal labor laws in several critical areas, significantly impacting how employers address union organizing activity.

Representatives of organized labor and management have been vigorously lining up support for and against the proposed Employee Free Choice Act (EFCA), which will radically change labor law in the United States. Yesterday, supporters of this controversial bill introduced it in Congress. EFCA promises to be at the center of political debate over the next several months, and many are reporting that passage will depend on a small umber of senators who remain undecided, including Sen. Arlen Specter (R-Pa.). This advisory highlights the key provisions of EFCA and identifies things employers should be doing now to prepare for it.

Union-Backed Bill to Spur Organizing Greeted with Significant Congressional and White House Support.

On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (the Stimulus Act). Among the myriad topics contained in the Stimulus Act is the expansion of the obligations and enforcement mechanisms of the Health Insurance Portability and Accountability Act (HIPAA), and more specifically, HIPAA's Privacy and Security Rules. Below is a summary of the most significant changes to the HIPAA Privacy and Security Rules.

President Obama this week assured the leadership of the AFL-CIO that the Employee Free Choice Act (EFCA) will be enacted. The new United States Secretary of Labor, Hilda Solis, a former union member, vowed to "fully implement" the EFCA if it becomes law. An AFL-CIO Executive Council member has predicted that the Act will pass in the next four or five months.

The Internal Revenue Service has published further guidance for employers explaining how to obtain reimbursement for the new employer-paid COBRA subsidy mandated by the American Recovery and Reinvestment Act of 2009. As we previously reported to you (CM - 2/24/09), the new law requires employers to fund 65% of eligible employees' COBRA continuation premiums for up to 9 months. The guidance explains that employers can claim the COBRA subsidy as a credit on their quarterly employment tax return, IRS Form 941, which has been updated to allow for this credit.

With the large number of reservists called to active duty in recent years, most employers may have heard of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). If not, the Department of Justice (“DOJ”) wants to ensure that all employers do now.

After much speculation, the Employee Free Choice Act of 2009 (EFCA) was introduced on March 10 in the 111th Congress. The new bills introduced in both the House of Representatives and Senate are identical to last year’s bill, which passed the House but was stalled in the Senate by a filibuster on the motion to debate the bill on the Senate Floor.

The federal Truth in Lending Act ("TILA"), and the Federal Reserve Board's Regulation Z implementing TILA, are applicable to most employee benefit plans that have plan loan provisions, such as a "typical" 401(k) plan or 403(b) plan.

The American Recovery and Reinvestment Act of 2009 (“ARRA”), signed by President Barack Obama on February 17, 2009, contains broad new protections against retaliation for whistleblowers. The protections are greater than those provided under the Sarbanes-Oxley Act, the Foreign Corrupt Practices Act and state laws, such as the New Jersey Conscientious Employee Protection Act.

Labor law reform was a central promise of candidate Obama’s platform, and President Obama made good on it just nine days into office. On Jan. 29, the new president signed his first bill into law—“The Lilly Ledbetter Fair Pay Act of 2009.” Named after a former Goodyear Tire and Rubber employee who lost her pay discrimination case in the Supreme Court last year, the new law makes it significantly easier for employees like Ledbetter to sue for pay discrimination.

As this Bulletin went to press, the Dow Jones Industrial Average was below 6700, and approximately 6.5 million people are currently unemployed. Given the dire state of our economy, this appears to be an opportune time to review employer obligations under the federal Worker Adjustment and Retraining Notification Act.

Constangy partner Mel Haas is a member of the U.S. Chamber of Commerce's Labor Relations Committee. We are forwarding to you last night's communication from the Chamber's Executive Director of Labor Law Policy 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.

In today's difficult economic climate, many employers are considering ways to cut costs. Downsizing a work force or reducing contributions to 401(k) or similar retirement plans are common approaches. The employer should be aware of the implications of, and restrictions on, these actions. This focus addresses some common implications of these employer actions under the tax laws and the Employee Retirement Income Security Act of 1974 (ERISA) for "defined contribution" retirement plans. These are retirement plans in which participants have account balances, such as 401(k), profit sharing, money purchase pension and employee stock ownership plans.

Under Article 7 of the Working Time Directive 2003/88, member states of the European Community must take appropriate measures to ensure that every worker1 receives at least four weeks' paid annual leave (i.e., vacation)2. For many years, however, it has been an open issue whether a worker on sick leave is still entitled to accrue annual leave, even though for all intents and purposes that worker is unfit to work. On January 20, 2009, the European Court of Justice (ECJ) delivered its judgment in co-joined cases Stringer, formerly Ainsworth, & Others v. Her Majesty's Revenue and Customs, Case No. C-350/06, and Gerhard Schultz-Hoff v. Deutsche Rentenversicherung Bund, Case No. C-520/06. The ECJ reinforced the European Community's governing principle that the right to annual leave is a fundamental social right and cannot be taken away from any worker, whether or not the worker is on sick leave.

Over the past year, employers in California's health care industry have witnessed a relatively quiet intra-union dispute explode into an all-out battle for the hearts and minds of thousands of represented employees in California's hospitals and nursing facilities. There is no sign that the battle will end soon.

Two recent enforcement actions and significant amendments to the HIPAA Privacy Rule, enacted as part of the federal government's massive economic stimulus bill (the "American Recovery and Reinvestment Act of 2009" (ARRA)), should re-focus employers on their HIPAA compliance efforts.

During the last quarter of 2008 we were aware of 14 petitions filed against hospitality employers.

The hospitality industry has not escaped the nationwide wave of wage-hour lawsuits. A contentious area under the federal Fair Labor Standards Act has involved the practice of requiring tipped employees to contribute some of their tips to a pool that is split among other workers. The U.S. Labor Department recently addressed an important tip-pooling question: Under the FLSA's tip-credit standards, who may receive tips from such a pool?

Despite the economic slowdown, this has been a busy time for benefi ts administrators. Year-end is always hectic, and was more so in 2008, with the need to fi nalize all nonqualifi ed plans and to cope with increased pension funding requirements. 2009 appears to offer no respite, as employers continue to respond to depressed conditions with reductions in force and suspensions of 401(k) plan matching contributions. In addition to these concerns, administrators need to be aware of several recent legislative and judicial developments that will impact benefi t plan administration. The following is a summary of some of the more important developments. The COBRA subsidy provisions in the economic stimulus legislation were discussed in a separate Employee Benefi ts Briefi ng, dated February 17, 2009.

Since the Americans with Disabilities Act (ADA) was amended by the ADA Amendments Act of 2008 (ADAAA), which took effect on January 1, 2009, federal court decisions have declined to retroactively apply the ADAAA to plaintiffs' claims concerning conduct that occurred before the effective date. Despite arguments by employees' attorneys that courts should apply the ADAAA to claims pending as of September 25, 2008, the date the ADAAA was enacted, it does not appear that any federal court has retroactively applied the ADAAA to a plaintiff's claim regarding past conduct. However, the ADAAA has been applied to pending claims for prospective relief.

President Obama has selected Hilda L. Solis as his choice for Secretary of Labor. Solis has been a Democratic member of the U.S. House of Representatives for the past seven years, representing a district just east of Los Angeles, California. While Solis's confirmation was delayed because of questions concerning her husband's business, she is widely expected to be confirmed by the Senate. Labor leaders throughout the country are ecstatic; business leaders, not so much. In this article we'll take a look at some of the more important aspects of her career.

For several years, employers in various industries ranging from high tech to agriculture have known that they face a potential labor shortage. Not only do employers need to add hundreds of thousands of jobs in the coming years, they also will need to fill existing positions each year due to the retirement of baby boomers and normal attrition. The labor shortage will be particularly acute in the area of skilled labor.

Hopefully, nothing in this article about the dangers of e-mails, memorandums, etc. will be news to you. You may even say to yourself "Who didn't know that?" Well, apparently some folks "forget" from time to time that information in e-mails, memorandums, and other documents is discoverable in litigation and may be the basis for large amounts of money changing hands. The information in them may or may not convey the author's actual beliefs or motivations – but it may be a jury who decides.

The difficult financial environment is causing many employers to consider cost-savings in the area of employee compensation. The ideas sometimes include a temporary or intermittent scheduling of unpaid days off for employees whom the employer classifies as exempt executive, administrative, or professional employees under the federal Fair Labor Standards Act.

The jury said Family Dollar store managers did not "manage" the stores. A federal appeals court affirmed the $35.5 million overtime verdict. Take steps now to minimize the risk of this happening to your business.

In response to changing economic circumstances, UK Home Secretary, Jacqui Smith, announced three significant changes to UK immigration laws and policies regarding foreign workers and visitors coming to the UK from outside the European Economic Area (EEA). The following changes are effective April 1, 2009:

Congress approved the American Recovery and Reinvestment Act of 2009 (“Act”), which President Barack Obama is expected to sign on February 17. Among the Act’s provisions intended to address the nation’s economic turmoil are amendments to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) that will affect every employer that sponsors a group health plan for employees and has terminated or laid off an employee on or after September 1, 2008. These amendments create additional COBRA notice requirements and affect payroll tax administration in order to administer a temporary federal subsidy of COBRA premiums. Employers will have to act quickly to implement the new requirements, which will include locating certain former employees and coordinating payroll and COBRA administration.

The Pension Protection Act of 2006 (the "PPA") amended the Internal Revenue Code to facilitate automatic contribution arrangements (also referred to as automatic enrollment) in section 401(k) plans, as well as in similar plans under sections 403(b) and 457(b) in the case of tax-exempt and governmental employers. More recently, the Worker, Retiree, and Employer Recovery Act of 2008 ("WRERA") added similar provisions to the rules relating to SARSEPs and SIMPLE IRAs.

The Internal Revenue Service has released new guidance that will help employers claim credit for the COBRA subsidy that they pay for their former employees under the American Recovery and Reinvestment Act ("the Act"), passed February 17, 2009. The guidance, in question and answer form, and IRS Form 941 that employers must use to claim the new tax credit, may be found on the IRS web site, at http://www.irs.gov/newsroom/article/0,,id=204708,00.html. The IRS will continue to provide updated information through this web site as it becomes available.

The recently enacted American Recovery and Reinvestment Act (ARRA) contains whistleblower provisions that apply to non-federal employers who will receive funds under the ARRA. These provisions prohibit the employers from discharging, demoting, or discriminating against an employee for disclosing, to a covered entity, (1) gross mismanagement of an agency contract or grant relating to covered funds; (2) a gross waste of covered funds; (3) a substantial and specific danger to public health or safety related to the implementation or use of covered funds; (4) an abuse of authority related to the implementation or use of covered funds; or (5) a violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contract) or grant, awarded or issued relating to covered funds. All qualified employers are required post notice of the rights and remedies provided under this section.

The Economic Stimulus Bill, enacted as the American Recovery and Reinvestment Act of 2009 (the "Act") created a refundable tax credit called the "Making Work Pay" credit, as described below. For most eligible individuals, the credit is supposed to be made available through decreased income tax withholding. The IRS has now released new withholding tables that take into account the new Making Work Pay credit, which will result in more take-home pay for tens of millions of Americans.

The American Recovery and Reinvestment Act of 2009 (the “Act”), signed into law by President Obama on February 17, 2009, includes a provision that helps millions of recently-unemployed workers continue their health insurance coverage under the COBRA continuation coverage rules. The Act does this by expanding election and enrollment rights and heavily subsidizing the amount an “assistance eligible individual” pays for up to nine months of COBRA continuation coverage for the individual and his or her eligible plan-covered dependents.

The economic stimulus package signed by President Obama on February 17, 2009 (its official title is "The American Recovery and Reinvestment Act of 2009") creates a new temporary employer paid COBRA subsidy. Under the new law, which is effective immediately, employers are required to fund 65% of an employee's COBRA premiums for up to 9 months. This FAQ provides an overview of the key changes.

On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act (H.R. 1). The Act contains significant changes to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) continuation coverage rules. The key changes are (1) the government will subsidize 65% of the cost of COBRA premiums for eligible individuals, and (2) eligible individuals who were involuntarily terminated since September 2008 will have a second chance to elect COBRA. The changes are generally effective March 1, 2009.

Union activity will likely dramatically increase during the current presidential term as a result of President Obama’s recent executive orders. Not surprisingly, Obama received organized labor’s endorsement during his campaign. Many describe him as the most vocally pro-union president since the New Deal. Shortly after inauguration, while signing three union-friendly executive orders, he announced, “I do not view the labor movement as part of the problem, to me it’s part of the solution” Recently, he signed a fourth and related order.

On February 18, 2009, the California Nurses Association/National Nurses Organizing Committee (CNA/NNOC), the United American Nurses (UAN), and the Massachusetts Nurses Association (MNA) announced the formation of a new union: the United American Nurses-National Nurses Organizing Committee, UAN-NNOC (AFL-CIO).

To alleviate chronic shortages of physicians, nurses and language experts in the U.S. military, U.S. Secretary of Defense Robert Gates has authorized a pilot program to temporarily recruit foreign nationals living legally in the U.S. to enlist in the military without first having to obtain lawful permanent residence. This marks the first time in recent history that foreigners without permanent resident status will be able to enlist. The limited pilot program aims to recruit up to 1,000 people and will end on December 31, 2009, or when the 1,000-person target has been reached, whichever comes first.

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009. The new legislation includes a provision that will treat all Troubled Assets Relief Program (“TARP”) recipients as “Dependent Employers” for H-1B purposes. A list of TARP recipients can be found here. This will mean that these employers will have to make the following additional attestations when submitting the Labor Condition Application for an H-1B worker:

In line with this audacious promise, the American Recovery and Reinvestment Act of 2009 (ARRA) expands, enforces, and enhances the privacy and security safeguards required by the Health Insurance Portability and Accountability Act (HIPAA) for certain individually identifiable health information. The tightening of these safeguards is critical to building the network of computerized record-keeping systems that will service the whole nation. Most businesses will be affected by these changes to some degree. Some of the key changes made by the new law include:

The American Recovery and Reinvestment Act ("ARRA") signed into law on February 17, 2009 includes significant changes to the Privacy and Security Rules of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA). Below are highlights of some of the significant changes and their effective dates.

Despite the economic hardship facing many businesses, the Department of Homeland Security’s enforcement and investigative branch known as ICE is hard at work on worksite immigration compliance.

The $787 billion American Recovery and Reinvestment Act of 2009 (generally known as the economic stimulus package) signed into law by President Barack Obama on February 17, 2009 significantly impacts employer obligations under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and similar state laws.

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009, a $787 billion measure designed to create and save 3.6 million jobs and stimulate the economy. Among other things, this massive legislation materially changes one aspect of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) by creating a means to fund 65 percent of the cost of COBRA coverage for up to nine months for employees involuntarily terminated between September 1, 2008, and December 31, 2009. This new law also allows such employees to opt for a different level of coverage in some cases and requires certain new notices to be issued soon. Otherwise, COBRA rules remain largely intact. This advisory briefly summarizes key parts of these changes.

Legislation has been introduced in Congress that would make predispute arbitration agreements in employment, consumer, and franchise disputes and disputes arising under civil rights statutes unenforceable. The legislation does not apply to arbitration provisions in collective bargaining agreements.

Despite millions of dollars already spent on both sides of the issue, three-quarters of Americans are completely in the dark over the Employee Free Choice Act (EFCA), a law touted by labor unions and political supporters as a way to increase unionization and improve the lives of middle-class America. And American workers are sharply divided over its merits, according to the latest national poll by the Employment Law Alliance (ELA).

Employers must act soon to comply with changes to COBRA continuation coverage requirements. The American Recovery and Reinvestment Act of 2009 (the Act), signed by President Obama on February 17, provides COBRA subsidies and special election rights to individuals who lose group health plan coverage due to an involuntary termination of employment between September 1, 2008 and December 31, 2009.

While most of the media and commentary has been focused on the COBRA subsidy in the American Recovery and Reinvestment Act of 2009 (ARRA or "the Act") signed by President Obama on February 17, there are additional provisions that employers should be aware of including, new tax credits, changes in unemployment benefits, limits on executive compensation and limits on the availability of HB-1 visas. Each of these provisions are discussed in more detail below. For information regarding the COBRA subsidy see Littler's ASAP The Stimulus Package: An In-Depth Look at the New COBRA Subsidy in the ARRA.

The American Recovery and Reinvestment Act of 2009 (ARRA or "the Act"), the stimulus legislation signed on February 17, 2009, by President Obama, contains sweeping revisions to the group health plan continuation coverage provisions contained in the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The new provisions impose additional burdens and hidden costs on the vast majority of employer-sponsors of group health plans. For information regarding the other employment-related provisions of the stimulus bill see Littler's ASAP, Besides COBRA: What Does the Stimulus Package Have for Employers.

The American Recovery and Reinvestment Act of 2009 (the "Act"), which was signed by President Obama on February 17, 2009, made many significant changes to the Internal Revenue Code (the "Code"), but one change that has so far attracted relatively little notice is a temporary increase in the amount that can be provided to employees tax free in the form of transit passes and/or vanpooling benefits under Code Section 132(f). Beginning with the month of March, 2009, and continuing through December, 2010, the monthly limit for transit passes and vanpooling benefits (combined) is equal to the monthly limit that applies to qualified parking expenses. This means that, for the remainder of 2009, that monthly limit is $230; before March 1, the monthly combined limit for transit passes and vanpooling benefits was $120.

Signed by President Obama on February 17, 2009, the American Recovery and Reinvestment Act of 2009 ("ARRA"or the "Act") expands COBRA in ways that, although temporary, will certainly impact employers. Most significantly, the ARRA offers "assistance eligible individuals" a 65% subsidy of their required COBRA premiums and an additional enrollment period within which to elect COBRA coverage.

On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (ARRA), which, among other things, provides for a nine-month subsidy of COBRA premiums for employees who are involuntarily terminated. The law also subjects employers to additional administrative and notice requirements.

In an effort to combat the length and severity of the already painful recession the United States is experiencing, President Obama, on February 17, 2009, signed into law the American Recovery and Reinvestment Act (the Stimulus Act). At a cost of $787 billion, the Stimulus Act is aimed at creating or saving 3.5 million jobs, improving the nation’s infrastructure, promoting energy efficiencies,

Under federal law, employers with 20 or more employees must offer continuation coverage (COBRA continuation coverage) to former employees, their spouses and dependents (i.e., qualified beneficiaries) if they lose coverage due to certain qualifying events, such as a termination of employment. On February 17, 2009, the American Recovery and Reinvestment Act of 2009 (the 2009 Recovery Act) was enacted, which, in part, provides assistance to unemployed workers and their families for obtaining COBRA continuation coverage. Additional guidance is expected in the coming weeks. A brief summary of the new COBRA rules follows.

In Narricot Industries, LP, 363 N.L.R.B. No. 82 (2009), the National Labor Relations Board (NLRB) reminded employers of the limited amount of "ministerial aid" they can permissibly provide to employees seeking to decertify their union representative. The NLRB held that Narricot Industries LP violated Section 8(a)(5) of the National Labor Relations Act by withdrawing recognition from Local 2316 of the Carpenters and Joiners of America because Narricot had based its repudiation of the union on a decertification petition that was prepared and distributed with the assistance of Narricot management.

Responding to increasing unemployment from the dramatic downturn affecting all sectors of the economy, the United States Congress has expanded the premium and notice obligations of employers under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly known as COBRA. Provisions in the American Recovery and Reinvestment Act of 2009 (“the Act”) reduce how much certain employees must contribute to obtain COBRA continuation health coverage, provide a subsidy to employers for their portion of the cost of coverage, and add new requirements for notices which must be provided to COBRA qualified beneficiaries.

President Barack Obama signed yet another pro-labor Executive Order this week. This most recent Order encourages (but does not yet require) federal agencies to use project labor agreements on federally funded construction projects that exceed $25 million. The Order is viewed as part of a continuing assault on merit shop construction businesses.

The Children's Health Insurance Program ("CHIP") Reauthorization Act of 2009 (the "Act"), signed by President Obama on February 4, 2009, maintains and expands health coverage to low income and uninsured pregnant women and children. The Act, which generally is effective April 1, 2009, affects employers and group health plans in several ways.

The American Recovery and Reinvestment Act of 2009 (the “Act”), enacted today, provides the following rules applicable to any company receiving past or future TARP funds (“TARP Companies”) for certain employees (usually the “Top 5 Executive Offi cers,” but also, in some cases, other highly paid employees and not just executives) during the period the federal government holds preferred stock of the TARP Company. There are many issues and questions to address over the next few weeks. We highlight below the Act’s most signifi cant provisions requiring TARP Companies to “stop” the operation of their executive compensation programs, to “look” at how the Act impacts those programs, and to “listen” for expected guidance from the Treasury Department implementing this new law.

The economic stimulus legislation signed into law by President Obama on February 17th (The American Recovery and Reinvestment Act of 2009) contains COBRA subsidies for employees who are involuntarily terminated between September 1, 2008 and December 31, 2009. This COBRA subsidy applies to all employers that maintain a group health plan regardless of whether they are currently subject to the general healthcare continuation rules under COBRA.

U.S. law requires that every employer complete Form I-9, Employment Eligibility Verification (“I-9 Form”), for each new employee within three days of hire. At this time, the employee is required to present original documents that demonstrate both identity and authorization to work in the United States.

President Obama signed the American Recovery and Reinvestment Act of 2009 (the Act) on February 17, 2009. The Act implements several broad economic stimulus, spending and related provisions, including various tax incentives for businesses and individuals. This Tax Alert summarizes some of the important tax provisions in the Act.

The sprawling stimulus legislation that may or may not jumpstart the U.S. economy will almost certainly jumpstart employers’ interest in COBRA coverage.

Union membership grew again in 2008; Solis nomination heads to full Senate; Employee Free Choice Act in Trouble?; Walkout To Attend Negotiations Not Protected; Divorce not final? Get outta HERE, says UNITE; Employer helping with decertification petition is a little too helpful, NLRB finds; Oh, rats! It’s freedom of expression!

On Friday, Congress gave final approval to President Obama's $787 billion economic stimulus bill. It is expected that President Obama will sign the bill into law this week. The final version of the package does not contain a proposed amendment that would have required all stimulus-fund recipients to use the government's E-Verify electronic work authorization eligibility program. However, the bill does include the Employ American Workers Act, which forbids employers receiving funding under the Troubled Assets Relief Program (TARP) from hiring additional H-1B nonimmigrant workers unless the employer complies with the H-1B "dependent employer" rules.

President Obama recently issued four Executive Orders, making it easier for unions to organize workers at federal contractors. When signing the Orders, President Obama stated that they were designed to “level the playing fi eld for workers and the unions that represent their interests” in dealing with management.

A California Appeals Court recently sent a stern wake-up call to any employer using a “one size fi ts all” job application. A major employer was sued over a fairly typical and, in most states, lawful question in its employment application asking for the applicant’s criminal conviction history. Because an unusual California law forbids inquiries into certain minor drug offenses, the court put a spotlight on the risk of not customizing employment applications to conform to individual state laws.

On February 6, 2009, President Obama signed Use of Project Labor Agreements for Federal Construction Projects, the latest in a series of executive orders affecting labor relations on covered construction projects. The order encourages — but does not require — executive agencies to consider using project labor agreements in connection with "large-scale construction projects" — construction projects where the total cost to the federal government is $25 million or more — involving the construction, rehabilitation, alteration, conversion, extension, repair or improvement of building, highways or other real property. A "project labor agreement" is any pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project.

The United States Senate and House have come to an agreement on the terms of the economic stimulus package, known as the American Recovery and Reinvestment Act of 2009 (the “Act”). One important provision relates to continuation of group health coverage under COBRA. While various versions of the Act’s COBRA provisions have been discussed and the final version of the Act has not been disclosed, there are two important issues that employers must be aware of.

New U.S. Department of Labor (DOL) regulations regarding the Family and Medical Leave Act (FMLA) take effect on January 16, 2009. They implement two types of new military family leave (Military Caregiver leave and Qualifying Exigency leave) and update and clarify the existing FMLA regulations. In addition, a recent amendment to the New York Labor Law, effective January 3, 2009, restricts an employer’s use and disclosure of an employee’s personal identifying information, including an employee’s social security number.

On January 29, 2009, President Barack Obama signed a law making it significantly easier for employees to file job bias claims in connection with compensation. The "Lilly Ledbetter Fair Pay Act of 2009" is the first bill passed by Congress to be signed into law by the new president.

The Beck Rule regulations are still technically “on the books,” but the Office of Federal Contract Compliance Programs has indicated that it will no longer be investigating federal contractors for compliance, now that President Obama has revoked the rule. On January 30, 2009, the President signed an Executive Order revoking an earlier Executive Order from President George W. Bush, which had required federal contractors to post a notice in non-exempt worksites informing employees of their rights not to join a labor union and not to pay fees for union expenses unrelated to representation issues. This obligation in the Bush order was called the “Beck Rule” after the Supreme Court’s decision in Communications Workers of America v. Beck, which set forth such employee rights.

Sending a clear pro-union signal to both employers and organized labor, President Obama initiated the first step toward what many believe will be a union-friendly agenda over the next four years. Executive Order No. 13495 could have a direct impact on a “cost-plus” contractor’s right and ability to react to a union organizing effort.

On January 29, 2009, President Barack Obama signed the Lilly Ledbetter Fair Pay Act. The Act will require employers to redouble their efforts to ensure that their pay practices are non-discriminatory and to make certain that they keep the records needed to prove the fairness of their pay decisions.

A federal appellate court has dismissed a lawsuit brought by an employee who claimed that he was demoted because of his military service in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). According to the court, a reasonable jury could find that the worker's new job was a lateral transfer that did not amount to an "adverse employment action."

The U.S. Department of Labor (DOL) recently issued an opinion letter addressing two issues involving employer requirements that employees wear a specific kind of footwear to work. The questions posed by a restaurant were as follows: (1) whether the requirement that employees wear a certain type of footwear makes such footwear a "uniform" under the Fair Labor Standards Act (FLSA); and (2) whether permit-ting employees to pay for shoes that comply with the employer's policy through a payroll deduction constitutes an impermissible deduction from wages.

As you plan for 2009, every employer should take steps to address the amendments to the Americans with Disabilities Act (ADA), the new Family and Medical Leave Act (FMLA) regulations, and the anticipated passage of the Employee Free Choice Act (EFCA). The following is a suggested "to do" list.

Claiming it is now "a more effective and efficient civil rights enforcement agency," the Office of Federal Contract Compliance Programs (OFCCP) recently announced that it had recovered $67.5 million for rejected applicants and employees during fiscal year 2008. Ninety-nine percent of the funds collected were in cases of "systemic discrimination" involving substantial numbers of applicants or employees subjected to allegedly discriminatory practices or policies.

2009 clearly appears to be a year of change, and employers will need to be especially mindful of immigration compliance changes, including a new I-9 form and the new regulation requiring federal contractors to use E-Verify (which are summarized below). In addition, the filing deadline for new H-1B petitions is approaching.

The Family and Medical Leave Act (FMLA) regulations issued late last year by the U.S. Department of Labor (DOL) took effect on January 16, 2009. According to Al Robinson, a shareholder with the firm's Washington, D.C. office and the former acting Administrator of the DOL's Wage and Hour Division (which enforces the FMLA): "The new regulations change the pro-vision of family and medical leave in the workplace, particularly the new basis for leave for families of individuals in the military. As a result, employers must become familiar with these changes and adjust their policies accordingly."

Two recent court decisions, one by the U.S. Supreme Court and the other by the Sixth Circuit Court of Appeals, have provided employers, plan sponsors, and plan administrators with valuable guidance regarding two of the pressing issues in benefits: retiree health care and the distribution of death benefits. Both of these cases point to the need for employers and plan sponsors to take care in the design of their plans and the terms of other documents (i.e., collective bargaining agreements) that may have a substantial impact on the administration of benefit plans.

In another boost to organized labor, President Barack Obama on February 6, 2009, signed an Executive Order, effective immediately, authorizing executive agencies of the federal government to require every contractor or subcontractor on a large-scale construction project to negotiate or become a party to a Project Labor Agreement (PLA) with one or more labor organizations. This is the fourth pro-labor Executive Order signed by President Obama since January 30th.

Making good on his promise to welcome organized labor back to the White House, President Obama signs three (3) pro-labor Executive Orders before over one hundred (100) labor leaders during a White House ceremony.

“Getting organized” will take on a whole new meaning in 2009 for employers who are not prepared. President Barack Obama’s nominee for Secretary of Labor, Hilda Solis, signals his commitment to pro-labor legislation like the Employee Free Choice Act (EFCA). While a Congresswoman, Solis voted with the AFL-CIO 97% of the time, and 11 of the top 14 donors to her reelection campaign were labor unions. An outspoken advocate for EFCA’s passage, Congresswoman Solis’ nomination is expected to be followed by pro-labor appointments to the three open positions on the National Labor Relations Board.

The near future in employment related litigation is likely to be volatile with the high degree of uncertainty in the economic marketplace. History tells us that a weak economy and employer layoffs are proven to lead to greater frequency of employment practices litigation. Additionally, a new presidential administration and pending legislation on Capitol Hill can significantly alter the legal landscape for employment related matters.

President Obama recently issued three Executive Orders that have a significant impact on federal contractors and provide a glimpse into his views about organized labor. The January 30 Executive Orders reverse certain obligations that President Bush imposed on federal contractors, creating new obligations and restrictions in their place.

Almost every employer uses some form of written job application. However, many employers are unaware of legal requirements governing what types of questions a job seeker may be asked. Employers who do not follow these rules face stiff penalties and expensive compliance lawsuits.

On January 30, 2009, President Barack Obama signed three executive orders that significantly affect federal contractors' relationship with their employees by disallowing certain costs related to persuading employees in connection with their right to form or not form a union and/or collectively bargain, requiring that applicable employees of a predecessor contractor be offered employment, and requiring contractors to post certain notices informing employees of their rights under the National Labor Relations Act.

Airlines, railroads and companies performing traditional functions under the control of the airlines or railroads (collectively “carriers”) are covered by the Railway Labor Act (“RLA”) rather than the National Labor Relations Act. In general, carriers subject to the RLA are exempt from the overtime provisions of the Fair Labor Standards Act, but are subject to various state wage/hour laws.

On January 30, 2009 President Barack Obama fired three very clear shots across the bow of non-union employers. They were in the form of Executive Orders titled Nondisplacement of Qualified Workers Under Service Contracts, Economy in Government Contracting, and Notification of Employee Rights Under Federal Labor Laws.

As we move into 2009, we are all hoping for the best but planning for the worst. Most dealerships have already cut their staff to the bone, reduced benefits, and even cut employees' hours in an effort to bring down costs and conserve cash. Dealers are now turning their attention to finding ways to bring customers back into the showroom and the service department. This is obviously important if a dealer is going to survive this downturn.

President Barack Obama signed a series of three executive orders on January 30, 2009 that he said should "level the playing field" for labor unions in struggles with management. President Obama stated, "I do not view the labor movement as part of the problem. To me, it's part of the solution." He then added, "You cannot have a strong middle class without a strong labor movement." Below is a summary of these pro-labor executive orders that apply to federal contractors.

The United States Supreme Court recently held, in a unanimous opinion, that Title VII's anti-retaliation provisions protect employees who disclose allegations of unlawful conduct while being interviewed as part of an internal investigation conducted by the employer. In Crawford v. Metropolitan Gov't of Nashville and Davidson County, No. 06-1595 (January 26, 2009), the Court held that an employee need not initiate a complaint in order to have engaged in protected activity under Title VII. Rather, when an employee reports inappropriate behavior during an internal investigation, that report qualifies as protected opposition to the inappropriate conduct. Crawford is just the latest in a series of Supreme Court decisions that further expand the concept of actionable retaliation and will, undoubtedly, lead to further litigation in this red hot area.

Citing the “need to level the playing field for workers and the unions that represent their interests,” President Barack Obama on January 30 issued three Executive Orders affecting federal contractors. These Executive Orders – tangible evidence of President Obama’s belief that “we have to reverse many of the policies towards organized labor that we’ve seen these last eight years” – impose new constraints on employers that contract with the federal government.

On Friday, January 30, 2009, President Obama issued three executive orders substantially affecting the rights and duties of federal contractors and their employees, giving organized labor an expected early win. Signed on the second day that leaders of major unions were visiting with the President at the White House, these executive orders have the stated purpose of “level[ing] the playing field” between labor and management.

USCIS made an announcement on Friday, January 30, that the Obama Administration has delayed the effective date of the new Form I-9 from February 2 for 60 days, until April 3. Employers must keep using the old form until then.

Effective immediately, the Office of Federal Contract Compliance Programs (“OFCCP”) has discontinued onsite visits to union employers during compliance reviews to ensure observance of “Beck” posting obligations and other requirements.

In a single week in January, corporations around the world laid off nearly 100,000 workers. Since September last year, more than half a million jobs have been eliminated, even at companies that were doing well some time ago.

On February 1, employers must post the OSHA 300-A Annual Summary Form at each establishment or facility. This form, which totals the injuries and illnesses occurring at the establishment during the previous calendar year, must be certified by (1) an owner of a sole proprietorship or partnership, (2) an officer of a corporation, or (3) the highest ranking official working at the establishment or 4) that official’s immediate supervisor. By certifying the form, the company executive is stating that he or she believes that the information on the OSHA 300-A form is “true, accurate, and complete.” The Annual Summary must be posted from February 1 through April 30 “in a conspicuous place or places where notices to employees are customarily posted."

Employers are rightfully concerned and even alarmed about what to expect from the new Congress and the Obama Administration. Democrats are firmly in control and owe much to organized labor and other constituencies that are not necessarily employer-friendly. So, what can healthcare expect in the new year and beyond?

We previously reported to you (January 2009 Compliance Matters) that the U.S. Citizenship and Immigration Services (USCIS) issued a revised Form I-9 that must be used for all new hires, beginning February 2, 2009. However, on January 31st, the U.S.C.I.S. announced that it will delay implementation of the new Form I-9 until April 3, 2009.

The Department of Labor's significant revisions to the Family and Medical Leave Act ("FMLA") Regulations are now in effect and, to comply, most covered employers will need to revise their current policies and practices. Some of the important changes include:

On January 30th, President Obama issued three new union-friendly executive orders affecting federal contractors and their employees. The orders are the product of the President’s new Task Force on Middle Class Working Families.

E-Verify enrollment for federal contractors has been postponed. On January 20, 2009, Rahm Emanuel, President Barack Obama’s Chief of Staff, issued a memorandum to all executive departments and agencies that urged extending the effective date of the E-Verify rule for 60 days.

As global mobility continues to become a central part of business activity today, it is increasingly important for businesses to develop policies that ensure compliance with immigration standards. In the United States, immigration enforcement actions have increased greatly, with news headlines regularly featuring worksite raids and investigations instigated by Immigration and Customs Enforcement (ICE). These reports are not only of administrative actions for immigration violations but also of criminal charges brought against owners, managers, supervisors, and human resource employees. Charged offenses include such things as harboring, knowingly hiring illegal aliens, smuggling, document fraud, money laundering, and worker exploitation. In fiscal year 2007 alone, ICE made 863 criminal arrests and brought 4,077 administrative charges as a result of worksite enforcement investigations.1 In the past fiscal year (FY2008), ICE made approximately 1,101 criminal arrests and more than 5,173 administrative arrests.

As stated in our prior Legal Alert, USCIS has delayed implementation of the revised I-9 Form, which narrows the list of documents employers may accept to verify employment authorization. Implementation of this form has been delayed until April 3, 2009. Employers should not use the new form until USCIS officially implements it, but instead should continue to use the current versions of the I-9 form, dated June 5, 2007 and June 16, 2008.

This is a reminder that beginning February 1, employers who are not exempt from this requirement (see the list below) must post OSHA Form 300A, which is a summary of the total number of job-related injuries and illnesses that occurred in the preceding year. Employers must also provide information about the annual average number of employees and total hours worked during the calendar year to assist in calculating incidence rates.

On Friday, January 30, 2009, President Obama signed three pro-labor executive orders affecting the rights of federal contractors and their employees. Intended to "level the playing field" for labor unions, the new executive orders reverse several Bush Administration policies that organized labor claims favored employers over unions.

USCIS has announced that it will delay implementation of the new I-9 form until April 3, 2009. USCIS issued an interim final rule in December 2008, which amended its regulations governing the types of acceptable identity and employment authorization documents and receipts that employees may present to their employers for completion of the I-9 form and included a new I-9 form.

The Department of Homeland Security announced a delay in the implementation of the newest version of Form I-9, which was due to become effective today. In a last minute announcement issued on January 30, 2009, the Department postponed implementation of the new form until April 3, 2009. The administration will be considering public comments on changes to the form and may further delay its effective date. Until further notice, employers should continue using the June 5, 2007 version of Form I-9. The current version of Form I-9 can be downloaded from the I-9 Compliance section of the Fisher & Phillips website.

On Friday, January 30, 2009, U.S. Citizenship and Immigration Services (USCIS) announced that it would delay the implementation of an interim final rule that would have required employers to begin using a new version of Form I-9 to verify the identity and work authorization of their newly hired employees as of February 2, 2009, as we reported previously. The rule also outlines new verification guidelines and provides a redefined list of acceptable proof of identification documents. Implementation of the rule will now go into effect on April 3, 2009. USCIS has also reopened the public comment period for 30 days, until March 4, 2009.

Once again, the effective date of the new rule that will mandate E-Verify use by certain federal contractors and subcontractors has been postponed.

The Department of Homeland Security (DHS) announced January 30, 2009, it is postponing the proposed February 2, 2009, effective date of the new Form I-9 rule to April 3, 2009. In addition, DHS re-opened the comment period on the proposed new form for 30 days. The public may submit comments on or before March 4, 2009.

Under the Fair Labor Standards Act, bona fide exempt managers may attend a seven-week training course without losing their exempt status during the training, the Department of Labor’s Wage and Hour Division has advised in an opinion letter (FLSA2008-19). Employees whose “primary duty” is performing managerial tasks are exempt from the overtime provisions of the FLSA. The WHD concluded that participating in a training course need not alter the managers’ exempt status.

The United States Citizenship and Immigration Services (USCIS) announced that it has received enough H-2B visa petitions to meet the H-2B cap for the second half of Fiscal Year 2009 (for employment start dates beginning April 1, 2009 and prior to October 1, 2009).

In perhaps his strongest pro-labor message to date, President Barack Obama on January 30 signed three Executive Orders, which together would impact federal contractors significantly. In his remarks accompanying the signing, President Obama expressed a clear intention to reverse Bush-administration policies regarding organized labor. He emphasized that he does “not view the labor movement as part of the problem. To me, it’s part of the solution.”

This year is shaping up to be one of dramatic changes in employment law. The stage is set for significant developments in immigration law once the new administration gets settled into office. What follows is some important information to keep in mind for the new year, and also a brief overview of what we expect to see on the immigration horizon.

As Democrats take control of the Presidency and expand their control of Congress, employers await dramatic changes to labor and employment law. In the House and Senate, Democratic lawmakers are expected to introduce a host of controversial measures, from the now well-publicized Employee Free Choice Act (EFCA) to the lesser known Employment Non-Discrimination Act (ENDA).

The new administration is moving swiftly to change the playing field between labor and management.

President Barack H. Obama signed three executive orders during a ceremony at the White House on January 30, 2009: Economy in Government Contracting, Nondisplacement of Qualified Workers under Service Contracts, and Notification of Employee Rights under Federal Law. The three executive orders focus on federal contractors, but the pro-labor slant of the President's action signals a dramatic shift in labor policy at the highest levels of the federal government. In announcing the executive orders, Mr. Obama said, "I . . . believe that we have to reverse many of the policies towards organized labor that we've seen these last eight years, policies with which I've sharply disagreed. I do not view the labor movement as part of the problem, to me it's part of the solution. We need to level the playing field for workers and the unions that represent their interests, because we know that you cannot have a strong middle class without a strong labor movement." In the view of employers, however, the President did not "level" the playing field as much as tilted it decidedly in favor of unionization.

On January 30, U.S. Citizenship and Immigration Services (USCIS) issued a press release announcing that it was delaying implementation of the regulation requiring employers to use a new Employment Eligibility Verification Form (Form I-9). The new form was originally scheduled to be required as of February 2. USCIS has reopened the comment period on the new rule through March 4 and currently plans to implement the new form and corresponding documentation changes on April 3.

President Barack Obama signed three Executive Orders on January 30, 2009, that some describe as aimed at reversing Bush-era rules that critics view as “anti-union.”

New rules were scheduled to go into effect on January 15, 2009 that would require most federal government contractors to use E-Verify, an electronic employment eligibility verifi cation system operated by the U.S. Department of Homeland Security.

Employers—please note that all petitions for new H-1B visas should be fi led with DHS on APRIL 1, 2009 to ensure that they have a chance of being adjudicated. Please identify any employees or prospective employees requiring H-1B status for the upcoming fi scal year as soon as possible.

In these tough economic times, many employers are reducing their workforces. Companies that employ foreign nationals have additional obligations when terminating employees in H-1B (Specialty Occupation) status.

New Form I-9 Employment Eligibility Verifi cation.

United States law requires that every employer complete Form I-9, Employment Eligibility Verifi cation (“I-9 Form”), for each new employee within three days of hire.

Today President Obama signed into law the Lilly Ledbetter Fair Pay Act which expands the time period in which employees can pursue discrimination claims related to employment compensation. This will result in a substantial increase in the number of pay-related lawsuits.

Are you ready? As far as we know at this time, starting next Monday (February 2, 2009), the new I-9 form will be the only version that employers will be allowed to use. The new form is available now, and here is a summary of the most important changes:

The federal government has agreed to delay the implementation of the Federal Contractor E-Verify Rule until at least May 21, 2009. This is the second delay. Previously, the federal government decided to postpone the implementation of the rule until February 20 following a lawsuit filed by the U.S. Chamber of Commerce and other groups.

The U.S. Chamber of Commerce announced on January 27, 2009, that an agreement had been reached with the Department of Homeland Security to delay the implementation date of the modified E-Verify/Basic Pilot Program to May 21, 2009. In addition, the Department of Homeland Security has asked that proceedings challenging the modified E-Verify/Basic Pilot Program be halted in order to allow the Obama Administration to review the modified rule.

Under the Western Hemisphere Travel Initiative, effective June 1, 2009, all travelers, including U.S. and Canadian citizens, will be required to present an approved travel document to enter the U.S. The WHTI is the Department of Homeland Security’s (DHS) and Department of State’s joint plan to establish travel document requirements for travelers who previously were exempt, including citizens of the U.S., Canada, and Bermuda.

President Barack Obama has signed into law the “Lilly Ledbetter Fair Pay Restoration Act of 2009,” the first piece of legislation signed by the President. The law (S. 181) was introduced by Senator Barbara Mikulski (D-MD) and was passed by the Senate on January 22, 2009. It cleared the House of Representatives on January 27, 2009. The new law, signed on January 29, 2009, rejects the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., holding that the charge-filing deadline on Title VII compensation discrimination claims begins to run on the date of the first allegedly discriminatory pay decision.

Employers subject to OSHA recordkeeping requirements must post their annual Summary of Work-Related Injuries and Illnesses (OSHA Form 300A) no later than February 1, based on data recorded during 2008.

President Barack Obama, in the first such act of his term, has signed into law the Lilly Ledbetter Fair Pay Act, which will dramatically lengthen the statute of limitations in certain discrimination cases.

The first workplace bill to reach President Barack Obama's desk is a pay-related law. Just days after the inauguration, on January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act into law, which is retroactively effective May 28, 2007. The swift enactment of the Ledbetter Act is not surprising since Lilly Ledbetter was a fixture in the Obama campaign. The Ledbetter Act expressly overturns the U.S. Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 (2007). In that case, the U.S. Supreme Court expressly rejected the "paycheck rule," i.e., that every paycheck issued was a separate act of discrimination. By doing so, the Supreme Court decision established a limited timeframe in which employees could bring pay discrimination claims. The Supreme Court decided that employees were required to file pay discrimination claims with the U.S. Equal Employment Opportunity Commission (EEOC) within 180 days of the original discriminatory pay-setting decision, even if the violation continued to affect the employee's compensation long after the 180-day period expired.

On Thursday, January 29, 2009, President Obama signed legislation extending the timeframe in which employees may sue their employers under federal law for pay discrimination. The Lilly Ledbetter Fair Pay Act of 2009 effectively provides that employees may file an administrative charge of discrimination with the U.S. Equal Employment Opportunity Commission alleging pay discrimination under the Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act up to 180 days (or up to 300 days in deferral states) after they receive any paycheck that they allege is discriminatory. The new act likewise modifies the operation of the Americans With Disabilities Act of 1990 and the Rehabilitation Act of 1973 “to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes."

On January 29, President Obama signed the Lilly Ledbetter Fair Pay Act, only two days after Congress passed the law (see Ogletree Deakins’ January 27, 2009 E-Alert). The Fair Pay Act is the first law passed by the new Congress and the first law signed by President Obama. Civil rights groups and their union supporters hailed the symbolism of the Act’s “first law passed and signed” status.

Effective February 2, 2009, employers must use the newest version of Form I-9 which has been revised. Employers will be required to use the revised form for all new hires and to reverify any employee with expiring employment authorization. As of February 2, 2009, the current edition of the Form I-9, dated 06/05/2007, will no longer be valid. The revised Form I-9:

President Obama is scheduled to sign the Lilly Ledbetter Fair Pay Act on January 29, 2009. The House of Representatives approved the legislation, which had previously passed in the Senate, on January 27. The Fair Pay Act, S. 181, alters the deadline or "statute of limitations" for pay discrimination claims brought under Title VII of the Civil Rights Act of 1964, the Age Discrimination Act of 1967, the Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973. It also overrules the U. S. Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Company, Inc., 550 U.S. 618 (2007). Congress believed the Court, in Ledbetter, unduly restricted the time period for bringing pay discrimination claims. The new law will allow employees to bring claims that would have been too stale under the Court's ruling.

ERISA typically has been a minefield for fiduciary compliance. This has been particularly true when a plan administrator must decide which of two competing claims should be paid when the plan participant is deceased. This week, the United States Supreme Court issued an "uncomplicated," bright line rule for plan administrators to follow in these situations. The Court held that a plan administrator meets its ERISA duty when it pays benefits according the plan documents. Specifically, the Court approved the payment by a plan administrator to the beneficiary named by the participant, despite the fact that the beneficiary was the former spouse of the participant who had waived her right to the benefits in a divorce decree.

On Tuesday, January 27, 2009, the Department of Justice agreed to further delay the implementation of a final rule that would have required certain federal contractors and their subcontractors to use the E-Verify program and electronically verify the work eligibility of their newly hired and existing employees assigned to the contract. Implementation of the rule, originally set to go into effect on January 15, 2009, and then suspended until February 20, 2009, is now further suspended until May 21, 2009.

On January 27, 2009, the House of Representatives passed the Lilly Ledbetter Fair Pay Act of 2009, which now heads to President Obama for signature.

Citing the need for additional information as it prepares to issue a mandatory rule on diacetyl, the Occupational Safety and Health Administration (OSHA) published an Advance Notice of Proposed Rulemaking (ANPR) on January 21, soliciting comments from employers and other members of the public on the uses, exposures, and health risks of the substance. Jackson Lewis encourages all employers that have employee exposures to diacetyl to submit comments to the ANPR. Comments are due by April 21, 2009.

Much has been written recently about the Employee Free Choice Act (“EFCA”). Indeed, if passed, it would be the most signifi cant change in labor relations law in decades. The advent of the Obama administration and a clear Democratic majority in both houses of Congress have many employers focusing on changes that the new year will potentially bring. With the economic recession and the apparent lack of a fi libuster-proof Democratic majority in the Senate, there is discussion that there will have to be compromises for EFCA to pass both houses of Congress. But organized labor is still pushing Congress and the new Administration to pass the bill unchanged, either as part of a broader economic bill, or later in 2009, after other priorities work through Congress.

President-elect Barack H. Obama's historic journey to the White House and the Democratic Party's increased control of Congress has revitalized the hopes and dreams of organized labor of reversing the slow decline of unionization in the United States. Since the 1980s, unionization in the private-sector workforce has dropped by nearly 20%. Indeed, only 7.5% of today's private-sector workers are unionized.

President Barack Obama has officially nominated Wilma B. Liebman to be the new chair of the National Labor Relations Board, marking an important policy change. While a member of the NLRB, Liebman has openly disagreed with the Bush Administration on labor-management relations. Thus, her appointment is one more indication that employers will face a different world under the Obama Administration.

The final rule requiring federal contractors to begin using E-Verify by January 15, 2009, has been suspended until February 20, 2009.

Today the Supreme Court handed down a decision in Crawford v. Metropolitan Govt. of Nashville expanding the types of employee conduct that can trigger protection under Title VII.

As discussed in our prior Legal Alert, U.S. Citizenship and Immigration Services (USCIS) has published an interim final rule that narrows the list of documents employers may accept to verify employment authorization on the I-9 form.

In recent years, the H-1B cap has been reached in record time. Last year, the cap was reached on April 1, 2008, the first day that U.S. Citizenship and Immigration Services (“USCIS”) accepted applications for each fiscal year. Indeed, of the petitions received on that date, USCIS randomly selected those that would be processed. We have no reason to believe that this year will be any different.

On January 26, the U.S. Supreme Court once again expanded the ability of employees to sue for retaliation. With seven Justices in agreement, plus the remaining two concurring in the judgment, the Court held that an employee who answers a question about a fellow employee’s improper conduct during an internal sexual harassment investigation is engaging in “protected activity” under Title VII of the Civil Rights Act. As a result of this ruling, it is likely that employers will face more retaliation claims.

Employers are reminded that they will be required to use a new version of Form I-9, which becomes effective February 2, 2009, to verify the identity and work authorization of their newly hired employees.

During Fiscal Year (FY) 2008, the Office of Federal Contract Compliance Programs (OFCCP) recovered a record $67,510,982 in back pay and salary and benefits on behalf of 24,508 individuals who, in OFCCP’s view, were subjected to unlawful employment discrimination.

Today the Supreme Court issued its decision in Locke v. Karass determining the ability of unions representing public sector employees to collect litigation costs as part of a compulsory "agency fee" authorized under state law, even if the litigation does not directly involve the local bargaining unit. Addressing a split among the Circuit Courts of Appeal on this issue, the Court refined a test previously set forth in Lehnert v. Ferris Faculty Ass'n, used for determining the propriety of including items in compulsory "agency fees" paid by nonunion members of a bargaining unit.

On April 1, 2009, U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications for employment starting on and after October 1, 2009.

Taking the new legislative, regulatory and enforcement outlook into account in decision-making ranges in difficulty from merely routine to nearly impossible.

Economic conditions have led many employers to consider reductions in workforce (RIF). For some businesses, RIFs are a necessary step to weathering the economic storm. Employers considering a RIF should keep in mind several legal considerations when evaluating this difficult decision.

Employers’ obligations under the Fair Labor Standards Act (FLSA) do not extend to paying to replace a tipped employee’s uniforms damaged outside of work.

Travelers from Visa Waiver Program (VWP) countries should be aware that they are now required to obtain approval through the Electronic System for Travel Authorization (ESTA) before traveling to the United States. This requirement became effective on January 12, 2009 and applies to all eligible citizens or nationals traveling under the VWP.

Beginning February 2, 2009, employers must use a new Form I-9 for all new hires and to reverify any employee with expiring employment authorization. Employers using the previous June 5, 2007 edition or earlier editions of the Form I-9 after February 2, 2009 may be subject to fines. Between now and February 2, you should continue to use the June 5, 2007 edition of the Form I-9.

The Department of Labor (DOL) recently published its final revisions to the regulations under the federal Family and Medical Leave Act (FMLA). These final regulations, which are effective on January 16, 2009, include provisions addressing military family leave entitlements created in early 2008 by the National Defense Authorization Act (NDAA). The final regulations also update and clarify employer and employee rights and responsibilities under the FMLA. The following highlights a number of key changes and clarifications provided by the final regulations.

This column frequently reminds employers to regularly review personnel practices to stay up-to-date, even longstanding ones. Because this is the beginning of a new year, it is fitting to discuss the beginning of the employer-employee relationship: job applications.

The inauguration of President-elect Barack Obama is just a few days away. Congress will assemble with solid Democratic majorities in each house. The new administration doubtless will breathe new life into bills that have languished in Congress during the past eight years.

The U.S. Citizenship and Immigration Service’s (USCIS) interim final rule published in the Federal Register on December 17, 2008, is the agency’s latest effort tostreamline and improve the integrity of the Employment Eligibility Verification (Form I-9) process so that individuals who are not authorized to work are prevented from obtaining employment in the United States. USCIS also has issued a revised Form I-9, Employment Eligibility Verification, which will become effective on February 2, 2009. The publication of the interim final rule and release of a revised Form I-9 comes approximately one year after USCIS last updated the Form I-9 in November 2007.

When laid-off workers have a difficult time finding a new job, they are more inclined to sue their former employers. Such suits may be more prevalent in the current economic downturn than in more prosperous times. Meanwhile, according to a recent Society for Human Resource Management (SHRM) poll of public and private company human resources executives, about 60% of employers are likely to institute layoffs in the next year, and 48% have done so in the past year.

Congress has hit the ground running in 2009 and is working hard to push forward an aggressive agenda. During its first week back in session, the U.S. House of Representatives rushed through two pieces of pay equity legislation: the Lilly Ledbetter Fair Pay Act of 2009 (H.R. 11) and the Paycheck Fairness Act (H.R. 12). The House passed similar measures during its previous session, but the proposed legislation lacked sufficient support in the Senate. Now, with better odds of clearing the Senate—and no threat of a Presidential veto—the bills are poised to become law in 2009. Both reform measures would make it easier for plaintiffs to prevail in pay discrimination claims against employers.

In what may signal the end of the Bush Administration’s tough approach against U.S. employers on immigration matters, the Department of Homeland Security agreed to delay implementation of its federal contractor E-Verify regulation to February 20, 2009. The E-Verify rule that was scheduled to take effect January 15th ultimately would have required an estimated 168,000 federal contractors to register with and use DHS’ E-Verify system to verify the identity and employment authorization of their new hires and certain current employees.

The U.S. House of Representatives has passed legislation that could significantly impact employers, if the legislation becomes law. The Lilly Ledbetter Fair Pay Act is aimed at overturning the U.S. Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which limited the time frame for bringing pay discrimination claims. The Fair Paycheck Act would enhance remedies for sex-based discrimination and make it easier for plaintiffs to establish an Equal Pay Act (EPA) violation. The two bills have been combined (H.R. 11) and sent to the Senate for consideration. To view the text of the legislation, click here, type H.R. 11 in the search box and select search by bill number.

In response to a legal challenge by business groups, the federal government has announced that it will postpone the effective date of its new rule requiring federal contractors and subcontractors to use E-Verify.

U.S. Citizenship and Immigration Services (USCIS) has published an interim final rule that narrows the list of documents employers may accept to verify employment authorization on the I-9 form. The revised Form I-9 becomes effective on February 2, 2009. At that time, employers will be required to use only the new form to verify the employment eligibility of new hires and reverify existing employees where necessary.

The government has agreed to delay temporarily the implementation of the requirement that federal contractors and subcontractors with qualifying federal contracts use the U.S. Citizenship and Immigration Services (USCIS) E-Verify system to check the immigration status of their employees. The requirement was scheduled to take effect January 15, but the government has delayed its implementation until February 20, 2009.

The Labor Condition Application (LCA) is a necessary component of a properly filed H-1B petition. As part of the application, employers attest that they will pay the H-1B worker the higher of the prevailing wage for that position in the geographic area of employment or the actual wage paid to other employees in the same position.

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) begins on Tuesday, March 31, 2009. Thus, employers are encouraged to begin identifying current and future employees who will need H-1B visa status to be legally employed. Persons currently employed as F-1 students or J-1 trainees and persons outside of the United States commonly require new, cap-subject H-1Bs. March 31 is the initial filing date for petitions seeking H-1B status with an effective date of October 1, 2009.

The Department of Homeland Security (DHS) announced the implementation of the regulation requiring certain federal contractors to use E-Verify will be postponed from January 15 to February 20. E-Verify is the Internet-based system operated by DHS in cooperation with the Social Security Administration that allows participating employers to electronically verify the employment authorization of newly-hired employees. The final regulation requires certain federal contractors to use E-Verify for new hires and to reverify existing employees working on covered contracts.

As the economic crisis in our country continues, schools are trying to make predictions and hard decisions regarding staffing. Many schools are trying to determine whether and where they should cut staffing and programs based on projections for enrollment next year. Although most private schools issue contracts for 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 parent's financial situation changes after signing the re-enrollment contract.

On January 9, 2009, the federal government agreed to suspend the implementation of the E-Verify Federal Contractor Rule until February 20, 2009. The E-Verify Federal Contractor Rule was due to take effect on January 15, 2009, but the government agreed to delay implementation after the U.S. Chamber of Commerce, along with other business groups, filed a lawsuit on December 23, 2008 challenging the legality of this law. A notice announcing the suspension is scheduled to be published in the Federal Register this week.

On Friday, January 9, the Department of Justice agreed to delay implementation of a final rule that would have required certain federal contractors and their subcontractors to begin using the E-Verify program to electronically verify the work eligibility of their newly hired employees and existing employees assigned to the contract. The rule, originally set to go into effect on January 15, 2009, will be suspended until February 20, 2009.

The Department of Homeland Security has announced that the effective date of the new rule that will mandate E-Verify use by certain federal contractors and subcontractors has been delayed from January 15, 2009 to February 20, 2009.

As of January 18, 2009, all lawful permanent residents of the United States will be subject to the biometric requirements of the US-VISIT program.

Effective June 1, 2009, the Western Hemisphere Travel Initiative (“WHTI”) will require travelers to present a passport or other approved secure document denoting citizenship and identity for all air, land and sea travel into the United States, Canada, Mexico, the Caribbean and Bermuda.

On January 15, 2009, new rules will require most federal government contractors to use E-Verify, an electronic employment eligibility verifi cation system operated by the U.S. Department of Homeland Security. E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verifi cation Program) allows employers to electronically confi rm the biographical data of employees pursuant to a Memorandum of Understanding (“MOU”) entered into between the employer, the U.S. Department of Homeland Security (“DHS”) and the Social Security Administration (“SSA”).

Many business visitors from non-U.S. countries travel to the United States pursuant to the Visa Waiver Program (“VWP”) to attend meetings and conferences or for vacation purposes. Travelers from VWP countries* are permitted to travel to the U.S. for up to 90 days without fi rst obtaining a visitor’s visa.

Employers—please note that all petitions for new H-1B visas should be fi led with DHS on April 1, 2009 to ensure that they have a chance of being adjudicated. Please identify any employees or prospective employees requiring H-1B status for the upcoming fi scal year as soon as possible.

ESTA Authorization Required for Visa Waiver Travel Beginning January 12; USCIS Reveals New Form I-9 Effective February 2; New Travel Documents for U.S. Entry Required Beginning June 1;

The healthcare field is particularly vulnerable to unionization because the work performed by healthcare employees cannot be sent offshore, unlike more traditional constituencies, such as manufacturing jobs. The political winds of change are blowing and major changes regarding how employees select union representation are coming and employers need to be planning for these changes now.

On January 9, 2009, Angelo I. Amador, Director of Immigration Policy for the U.S. Chamber of Commerce, announced an accord reached with the federal government to delay the effective date of the E-Verify federal contractor regulation until February 20, 2009 – adding 36 days to the original deadline of January 15, 2009.1 Employers everywhere are breathing a collective sigh of temporary relief, and some are wondering whether this deadline extension will put the E-Verify Executive Order on President-Elect Obama's rescission list, as the effective date has now been moved to after his Inauguration.

A new year is upon us and, as always, there are new responsibilities for those responsible for employee benefits. Here are some updates, due dates, and mandates in this important area.

All air carriers should be prepared for the new, expansive Family and Medical Leave Act (FMLA) regulations, which were issued by the Department of Labor (DOL) in November 2008, to take effect on January 16, 2009.

Several organizations, including the U.S. Chamber of Commerce, the Society for Human Resource Management and Associated Builders and Contractors, Inc., have joined suit against Department of Homeland Security (DHS) Secretary Michael Chertoff and the U.S. federal government in an attempt to halt a new DHS final rule that goes into effect on January 15, 2009. The rule requires federal contractors and their subcontractors to enroll in and use the E-Verify program to verify the work eligibility of their new employees as well as those employees already working on government contracts.

On December 23, 2008, President Bush signed into law a technical correction to the effective date of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (the "Act"). Enacted on October 3, 2008, the Act established a requirement of full parity for mental health and substance use disorder benefits. For a full discussion of this legislation, see Littler's October 2008 ASAP, Equal Mental Health and Substance Use Benefits Realized.

Not complying with current law can be expensive in today's legal climate. One of your New Year's resolutions should be to review your employee handbook and employment-related policies to make sure they are up to date. When doing so, remember to draft your handbooks so that your employees actually read them and follow your policies. In this article we'll offer advice on how to write handbooks employees will actually read, and also identify 10 important policies that every employer should have in place to minimize the risks of employment-related litigation.

With a tightening economy, those employers fortunate enough to be hiring can't afford to make bad hiring decisions. Among other problems, bad hires can result in high turnover, low production, workplace disruption, abuse of benefits and creation of legal risks.

On December 18, 2008, the U.S. Citizenship and Immigration Services (USCIS) announced sweeping changes to the Form I-9 used in the employment verification process. As a result, employers must begin using the new Form I-9 for all new hires and re-verifications occurring on or after February 2, 2009.

Citing the U.S. Supreme Court's decision in Metropolitan Life Insurance Co. v. Glenn, the Second Circuit recently issued one of the first major opinions to "reassess [the] standard of review governing cases … that challenge an Employee Retirement Income Security Act ('ERISA') plan administrator's decision to deny disability benefits, where the administrator has a conflict of interest because it both has the discretionary authority to determine the validity of the employee's claim and pays the benefits under the policy."

Under a new rule passed by the Bush administration, larger federal contractors and sub-contractors will now be required to use the federal government's E-Verify system to determine whether the employees working on the contracts are authorized to work in the United States. The rule will also require the contractor to use the E-Verify system on all new hires, including employees who are not directly working on the covered contract.

The Department of Homeland Security (DHS) has published a final rule significantly expanding the group of foreign nationals required to have their biometrics information collected under the US-VISIT program when traveling to and from the United States. Established in 2003, US-VISIT records biographic and biometric information to conduct security checks and verify the identities of international visitors to the United States.

The hourly minimum wage in the eleven states below will increase effective January 1, 2009. The federal minimum wage, currently $6.55 per hour, is scheduled to increase on July 24, 2009, to $7.25 per hour. In cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher wage rate.

On December 19, 2008, Immigration and Customs Enforcement (ICE) announced that IFCO Systems North America (IFCO), the nation's largest pallet management services company, had agreed to a record $20.7 million settlement of claims alleging the knowing employment of illegal aliens. This settlement agreement resolves only the corporate liability and does not encompass pending criminal cases against IFCO managers and employees. To date, nine managers and employees have pled guilty to various criminal charges, and four managers are awaiting trial in New York.

Avoiding Religious Discrimination Claims During the Approaching Holiday Season; Quon v. Arch Wireless Operating Co., Inc.: New Protections For Employee Privacy; Practical Tips For Being An Effective Deposition Witness.

Currently pending in Congress is another arrow in organized labor's quiver, the Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers Act (RESPECT Act) (H.R. 1644; S. 969). The target of this arrow is the National Labor Relations Act's (NLRA) definition of "supervisor." If enacted, the RESPECT Act would redefine the term and effectively turn numerous supervisors into rank and file employees subject to union organizing. Organized labor is pushing hard for passage, as this, along with passage of the Employee Free Choice Act, would swell the ranks of unionized employees.

Many clients have asked for more information regarding Representative Hilda Solis, whom President-Elect Obama nominated for Secretary of Labor on December 19, 2008. Ms. Solis is serving her fourth term in Congress, representing California's 32nd Congressional District, and was re-elected to a fifth term in November 2008. Prior to her election to the House of Representatives, Ms. Solis was a member of the California state senate from 1994 through 2001. She was a member of the California state assembly from 1992 to 1994.

In the largest immigration work-site enforcement settlement yet, IFCO Systems North America (“IFCO”) will pay the government $20.7 million dollars in civil forfeitures and penalties over four years in consideration of the government’s not further pursuing corporate criminal charges against certain IFCO employees for hiring illegal aliens.

The U.S. Court of Appeals for the Eleventh Circuit (Alabama, Florida, Georgia) recently affirmed a $35 million award for store managers for Family Dollar Stores, agreeing with a lower court that the managers were non-exempt and therefore were entitled to overtime and liquidated damages under the Fair Labor Standards Act.

In Starbucks v. Superior Court, the Court of Appeal for the Fourth District of California considered whether the plaintiffs were entitled to ask a jury to award millions of dollars against Starbucks for allegedly requiring job applicants to disclose prior convictions for misdemeanor marijuana-related offenses. At the trial court level, the judge had granted the named-plaintiffs' motion to certify a class action for the benefit of approximately 135,000 class members (unsuccessful job applicants). The trial court judge had also rejected Starbucks bid for "summary judgment," i.e., to have the named-plaintiffs' lawsuit thrown out of court without a trial.

Effective February 2, 2009, USCIS has amended the I-9 rules concerning the boxes a worker must check about status and concerning what documents an employer can and must accept from workers to verify their identity and employment authorization at the time of hire. The new I-9 will split the box to assert citizenship or nationality into two boxes. Expired documents are no longer acceptable for any purpose. In addition, USCIS has added some documents to and removed other documents from the list.

On December 17, 2008, the USCIS interim final rule to streamline the Employment Eligibility Verification (Form I-9) process was published in the Federal Register. Employers must begin using this new version of the form on February 2, 2009. The form will be available on the USCIS website (http://www.uscis.gov) before that date.

As the season for workplace holiday parties comes into full swing, we offer the following information from the U.S. Department of Labor.

As a general matter, employers and others are required to report, on Form W-2 or Form 1099-Misc (whichever is applicable), various amounts attributable to nonqualified deferred compensation arrangements under section 409A of the Internal Revenue Code. For example, compensation that is deferred during a year is reportable, and deferred compensation that is received – or that is otherwise taxable under section 409A – is reportable. In addition, in the case of employees, taxable amounts generally constitute wages subject to withholding.

In these tough economic times, many employers have been compelled to let some employees go. Other employers need to cut costs but are looking for lawful alternatives to layoffs.

The passage of Proposition 8, overturning the California Supreme Court’s decision authorizing marriage between same-sex couples, has brought visibility and controversy to California. The debate over the measure has dominated political and private discussions with an intensity that suggests civil rights laws will continue to be hotly debated – including those related to employment and the workplace.

Last week, Congress passed the Worker, Retiree and Employer Recovery Act of 2008 (the "Act"), which, when signed by the President (it has not been signed as of the time of this writing), will help reduce part of the financial burden facing seniors who have seen their retirement savings shrink dramatically over the past several months. The Act includes a provision that would allow individuals who have reached age 70-1/2 to avoid "locking in" investment losses by withdrawing funds that they are required by law to withdraw.

The U.S. Citizenship and Immigration Services (USCIS) announced on December 15, 2008, that it submitted an interim final rule to the Federal Register revising form I-9 used in the employment verification process.

Immediately after the victory of labor-backed Senator Barack Obama, both the AFL-CIO and Change To Win federations praised the win as the beginning of a new era in workers’ rights. AFL-CIO President John Sweeney called the Obama victory in the presidential race and the Democratic majorities in the House and Senate a working families’ mandate for “broad-based economic change.”

On December 12, 2008, the NLRB announced that the United Food and Commercial Workers Union won an election at Smithfield Foods’ pork processing plant in Tar Heel, North Carolina. The UFCW has been seeking to represent the Tar Heel workers for more than 15 years.

Unions won 67 percent of NLRB elections held in the first half of 2008. That’s up from 59 percent during the corresponding period in 2007.

The New York Court of Appeals, New York’s highest court, recently ruled that Local 32BJ of the Service Employees International Union was properly enjoined from announcing its presence outside the Empire State Building with a “banging racket” of drumming on metal pots and tin cans.

To alleviate chronic shortages of physicians, nurses and language experts in the U.S. military, the secretary of defense has authorized a pilot program to temporarily recruit foreign nationals living legally in the U.S. to enlist in the military. For the first time in recent history, foreigners without permanent resident status will be able to enlist in the U.S. military if their skills are vital to the national interest. This limited pilot program will recruit up to 1,000 people and will continue for a period of up to 12 months. In exchange, the enlisted foreign national will be eligible for expedited U.S. citizenship.

On June 11, 2008, Baker Hostetler issued an Executive Alert advising of a proposed rule requiring federal contractors to begin using the E-Verify employment eligibility verification system to confirm the employment eligibility of certain parts of their workforce. Recently, a final rule was published that will mandate E-Verify use by certain federal contractors and subcontractors beginning January 15, 2009.

On December 11, 2008, the IRS issued a notice (Notice 2009-3) extending the January 1, 2009 deadline by which 403(b) plans are required to have written plan documents that comply with applicable regulations.

In response to numerous stakeholder requests, the Occupational Safety and Health Administration announced that it is extending the time for submitting written comments on its controversial cranes and derricks in construction proposed rule until January 22, 2009. The comment period was initially set to expire on December 8.

A revised Site-Specific Targeting Program (SST) issued by the Occupational Safety and Health Administration will direct OSHA’s inspection resources at employers in high-hazard industries.

The National Labor Relations Board (“Board”) reiterated its stance on drug and alcohol testing requirements by finding a California newspaper publisher violated its duty to bargain under the National Labor Relations Act (“NLRA”) by unilaterally changing its drug and alcohol testing policies without notifying the Union representing some of it workers and providing it with an opportunity to negotiate.

U.S. Citizenship and Immigration Services (USCIS) submitted to the Federal Register an interim final rule to revise Form I-9, Employment Eligibility Verification. The rule narrows the list of acceptable identity and employment authorization documents, requires employers to accept only unexpired documents, and makes several technical changes. The rule and the revised Form I-9 will be published in the Federal Register soon and will take effect 45 days after publication.

New regulations implementing the Family and Medical Leave Act (FMLA) will become effective on January 16, 2009. Because these new regulations materially change the way the FMLA has been applied, all employers must review and update their FMLA policies and practices to comply with the new rules.

The U.S. District Court for the Northern District of California has denied the Department of Homeland Security’s request to expedite consideration of its Supplemental Final Rule on Social Security no-match letters, effectively blocking implementation of the safe harbor rule until next year.

Just how bad will the economy get? For employers facing tough decisions about layoffs, the question is far from rhetorical. If the current economic turmoil is contained sooner than expected, premature layoffs could be a disaster. If not enough employees are laid off and the recession continues, the company's bottom line could suffer. And in any scenario involving layoffs, morale among those employees remaining at the company is sure to plummet.

As President-elect Barack Obama selects members of his Cabinet and prepares for his transition into the Presidency, he and a sweeping Democratic majority in both the House and the Senate will be pursuing a number of significant pieces of federal workplace legislation. Many of these employment law measures successfully passed the House of Representatives in 2007 and again in 2008, only to be blocked in the Senate. Moreover, appointments by President-elect Obama to the Supreme Court, the federal judicial bench, and administrative agencies such as the Equal Employment Opportunity Commission are likely to impact dramatically the cost of resolution of employment disputes.

On December 5, 2008, the Internal Revenue Service (IRS) issued new guidance under Internal Revenue Code (Code) Section 409A. The new guidance consists of: (1) proposed regulations dealing with the calculation of amounts includible in income under, and the additional taxes imposed by, Section 409A(a) when nonqualified deferred compensation fails to comply with Section 409A, and (2) a Notice providing relief for, and methods of correcting, certain operational failures to comply with Section 409A.

On November 17, 2008, the U.S. Department of Labor (DOL) published final regulations implementing the 2008 amendments to the Family and Medical Leave Act (FMLA). Employers should act quickly to update their FMLA policies before these regulations take effect on January 16, 2009. Below is a summary of the most significant changes to the FMLA that will take effect early next year.

A Massachusetts temporary-services company specializing in technical and manufacturing staff has learned a $1.8M lesson about the perils of erroneously classifying employees as exempt under the federal Fair Labor Standards Act.

DHS Worksite Raids: Throwing Down the Gauntlet; Federal Acquisition Regulation Amended to Require Federal Contractors to Use E-Verify; Federal Immigration Law Guru Joins Jackson Lewis LLP;

Wall Street’s latest crisis has wreaked havoc on financial markets. The United States government has responded with emergency legislation seeking to stabilize faltering credit markets by providing for the “bailout” of failing financial institutions. This unprecedented intervention, as well as the potential infusion of taxpayer money in other sectors of the economy, has given the federal government a significant, but as yet not fully defined, degree of oversight of the internal operations of these organizations. Indeed, the government’s fiduciary role in using taxpayer funds in this way is evolving, but early signs confirm that 2009 will be marked by increased corporate governance, especially in regards to how these bailout funds are put to use by recipient organizations. These developments have already been marked by scrutiny of executive compensation practices and related issues.

A 2007 Spherion Workplace Snapshot survey revealed that approximately 40% of U.S. workers have dated a co-employee, and that another 40% would consider doing so. Inevitably, most workplace relationships end. Some end badly, and many of those result in litigation involving claims of coercion or retaliation, despite the fact that most of these relationships are completely consensual at the outset.

It has long been industry practice for employers, including many in the hospitality industry, to require workers to wear clothing of a particular kind or appearance. What many do not realize is that this practice can have significant ramifications under the federal Fair Labor Standards Act. If your clothing policy violates the FLSA, "everybody does it" will not be a defense. A new U.S. Labor Department guidance letter has added at least a little clarity in this area.

Picture yourself leaving work at the end of the day. As you enter the company's parking lot you see several strangers around your car. They appear to be photographing your license plate, and taking notes. Later that week two more strangers come to your house at night. They call you by name and ask if you'd like to hear more about their union. When you ask how they got your name, they say by running your license plate number through the State's department of motor vehicles. That chilling scenario is what happened to between 1,758 and 2,005 Cintas employees in 2004.

The final regulations for the Family and Medical Leave Act are out and will take effect January 16, 2009. What follows is a summary of the highlights of the changes.

The Friday, October 10, 2008, edition of The State newspaper (Columbia, South Carolina) carried an article about the possible Wells Fargo-Wachovia merger. The article stated the merger could cause “major job cuts.” In an economic downturn such as the current one, employees are going to suffer job losses. Any employment attorney will tell you that will result in more employment-related lawsuits being filed by former employees against their former employers. Any bankruptcy attorney will tell you that will result in increased bankruptcy filings. But what happens when these two areas of the law intersect? What are the consequences if a third area of the law is introduced into the mix, such as the federal tax laws? In such a three-way collision, the legal consequences can be difficult to ascertain.

There is understandable confusion among employers about the various laws affecting workplace confidentiality. This article will attempt to clarify the obligations of employers when dealing with employee medical information. In addition, a helpful reference chart comparing the confidentiality requirements of the various federal laws can be accessed...

Beginning with 2010 plan years, employer health plans and group health insurers will no longer be able to impose separate financial requirements or treatment limitations on mental health or substance use disorder benefits, under new mental health parity provisions contained in the economic bailout legislation signed into law by President George W. Bush on October 3.

In a historic and hard-fought election, Senator Barack Obama was elected the 44th President of the United States earlier this month. President-elect Obama will be the first African-American president in the country's history.

President George W. Bush has signed into law a measure (S. 3406) that significantly amends the Americans with Disabilities Act (ADA). Ironically, the original ADA was signed in 1991 by his father, former President George H.W. Bush. The ADA Amendments Act of 2008, which was negotiated by business groups and the disability and civil rights communities (together with its principal congressional sponsors), passed the Senate by unanimous consent on September 11, and it was approved by voice vote in the House on September 17.

Starting January 15, 2009, certain federal contractors and subcontractors will be required to begin using the E-Verify system administered by the U.S. Citizenship and Immigration Services (USCIS) to verify the eligibility of their employees to legally work in the United States. The final rule implementing the requirement was published on November 15 in the Federal Register.

The Visa Waiver Program (VWP) was expanded on November 17, 2008 to add nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia and South Korea. According to the Department of Homeland Security press release, nationals of those countries can now travel to the United States for business or tourism for a period of 90 days without the need for a visitor visa provided they hold an e-Passport and have completed their registration for the Electronic System for Travel Authorization (ESTA) program.

Certain business travelers from Europe, Singapore, Australia, New Zealand and Japan need to take note of a new registration requirement to enter the United States starting January 12.

U.S. Consulates in Canada and Mexico have a long history of processing Third Country National (TCN) visa applications for H-1B, L-1, O-1 and other employment-related visa categories. This has provided certain foreign nationals from distant countries such as India, Japan and Australia the ability to process a new visa without requiring a long trip back to their home country.

The Department of Homeland Security (DHS) published its final rule making employers accountable for resolving mismatched social security numbers of employees. The regulation, “Safe Harbor Procedures for Employers who Receive a No-Match Letter,” describes the legal obligations of an employer when the employer receives a no-match letter from the Social Security Administration (SSA) or notice from the Immigration and Customs Enforcement (ICE), the internal investigative arm of DHS. It establishes “safe-harbor” procedures that the employer can follow in response to such a letter or notice to avoid being imputed with constructive knowledge that an employee targeted in a no-match letter is a person not authorized to work in the United States.

The Fair Labor Standards Act requires that overtime compensation be paid at a rate of not less than one-and-a-half times the regular rate of pay of all hours worked in excess of 40 during a particular workweek. Recently, the Department of Labor’s Wage and Hour Division responded to a request for an opinion on whether compensation for “on-call” time in a specific week may be averaged over a two week pay period for purposes of computing the regular rate of pay on which employees’ overtime wages were based during the entire pay period. In response, the DOL informed the employer that an employee’s regular rate of pay must be computed on a workweek basis, and that payment for on-call time must be attributed to the specific workweek that included the on-call assignment. Wage and Hour Opinion Letter, FLSA 2008-6, 9/22/08 (released 11/14/08).

Gallons of ink have been spilled by lawyers and journalists concerning the Employee Free Choice Act (EFCA). But this law is likely to have a particular effect on retailers, and retailers – more so than other employers – should start planning for the worst now.

I suspect that we too often focus all our preventive efforts on the well-known discrimination causes of action (race, disability, age, and so on). But retailers are subject to a number of other state-law employment-related causes of action, and we are seeing these causes of action used more frequently by creative lawyers. Retailers should know something about these causes of action so they can take steps to forestall them.

The federal Americans with Disabilities Act protects individuals with disabilities from discrimination. The Fair Employment and Housing Act is the California anti-discrimination law that provides similar protections. Both the ADA and FEHA require employers to make reasonable accommodations when qualified employees can perform the essential functions, but not necessarily all other requirements, of a job.

With the Holiday Season in full swing, many employers ask us about the wisdom of holding company parties where alcohol will be served. They generally want to know about the risk involved if an employee drinks too much at the party and misbehaves, or worse injures or kills someone on the way home. In the interest of answering these questions generally, and with apologies to David Letterman, we are re-running here an article which has appeared in our newsletters several times over the years.

The Labor Department's Office of Federal Contract Compliance Programs (OFCCP) issued a directive on October 2, 2008, effective immediately, regarding inspection procedures for OFCCP compliance officers (COs). The directive applies to reviews of Forms I-9 during an on-site compliance review.

The Department of Labor recently published a new "Equal Employment Opportunity is THE LAW" poster. This poster must be displayed in all workplaces covered by Title VII or Executive Order 11246. The new poster contains only minor changes intended to clarify employee rights and to provide more specific definitions.

You may have noticed that the length of what you're reading these days is getting shorter and shorter. People's attention spans are shrinking, as is the content of much of what is being published. Some of today's popular websites include "Five Word Reviews" and "Four Word Film Reviews," and one of 2008's best selling books was "Not Quite What I Was Planning," a collection of memoirs of six words or less (for example, Joyce Carol Oats: "Revenge is living well, without you," and Stephen Colbert: "Well, I thought it was funny").

Jackson Lewis LLP is pleased to announce that our free webinar on the revised Family and Medical Leave Act is available for viewing 24 hours a day, 7 days week. This complimentary resource can help you better understand and prepare for the new FMLA Regulations that will take effect on January 16, 2009.

Change is the new status-quo, and success at work will require agility, talent and the ability to learn from -- rather than fear -- failure, according to Gregory Shea, adjunct professor of management at Wharton, and business writer Robert Gunther. The two recently co-authored a book titled, Your Job Survival Guide, a Manual for Thriving in Change. In an interview with Knowledge@Wharton, the authors compared the economy and job market to a whitewater river in which every kayaker is certain to spend a significant part of the journey under water.

On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (ADAAA), overturning a series of decisions by the U.S. Supreme Court under the Americans With Disabilities Act (ADA) and expanding the scope of medical conditions protected by the law. The ADAAA states that the purpose of the amendments is to “carry out the ADA’s objectives . . . by reinstating a broad scope of protection to be available under the ADA.”

On November 14, 2008, the U.S. Department of Labor issued the long-awaited new Family and Medical Leave Act (“FMLA”) regulations. The new regulations provide direction concerning “qualifying exigency” and “servicemember” leaves which were added to the FMLA as a result of amendments in January 2008, and also provide significant clarification in a number of other areas. The new regulations are effective January 16, 2009. Some of the highlights are set forth below.

The Employee Free Choice Act (EFCA) is proposed national legislation that would overturn nearly 60 years of labor law by amending the National Labor Relations Act (Act) in several unprecedented ways. The U.S. House of Representatives passed the EFCA last March by a significant margin (241-185). While 51 Senators supported the bill, it stalled in the Senate because of a threatened filibuster. Most commentators expect that it will ultimately pass the new Senate and be signed by President Obama in some form.

As the results of the 2008 presidential election fade into memory and the meaning of the election for employers emerges, our goal at Littler is to inform you as to what is happening in Washington, educate you as to what it means for your company, and prepare you to handle change. In this paper, we start the process by taking an initial look at what may be on the horizon for employers and set the stage for our monitoring of what is to come. This Littler Report covers topics such as the Employee Free Choice Act (EFCA), the legislative agenda on civil rights including removing damage caps under Title VII, changes to statutes of limitations and recognition of gay rights, emergence of family/life balance initiatives on the federal level, increased agency funding for OSHA and changes to executive compensation and employee benefit structures.

The end of the year is a traditional time for employers to give gifts to their employees. While it is customary to think of gifts as having no tax consequences for the recipient, the Internal Revenue Code (Code) does not treat all gifts the same. Unfortunately, gifts that employers give to their employees are generally treated as supplemental wages, and thus subject to both payroll and income taxes. This means that the value of the gift must be included in the employee's W-2 at year end and included in a payroll period for purposes of income tax withholding and payroll taxes.

More than 15 years after the Family and Medical Leave Act (FMLA) was signed into law, the U.S. Department of Labor (DOL) chose to evaluate and revise regulations that it had promulgated in 1995 during President Clinton's Administration. For much of that period, employers and their Washington, D.C. representatives pressed the case that substantial burdens had been added to the process of leave administration under the FMLA by the DOL rules. Almost from the day that Republican President George W. Bush came into office in 2001, employer hopes grew that some of the more challenging aspects of the DOL regulations would be revised in a manner that would relieve those obligations and constraints. More than seven years later, the Bush Administration proposed revised FMLA rules that promised to provide a variety of changes, while leaving relatively untouched several problematic aspects of the agency's regulations (such as the sometimes difficult challenges posed by the use of intermittent leave by employees without prior notice). The revisions that now have been issued are final, to be effective, as noted above, on January 16, 2009.

The Department of Labor (DOL) published its final version of the changes to the regulations interpreting the Family and Medical Leave Act (FMLA) on November 17, 2008, and it has clarified many of the ambiguities created by the statutory amendments passed on January 28, 2008. The regulations are effective on January 16, 2009. Most notably, the new regulations define the term "military exigency" and provide guidance to employers on how to process requests for this type of leave. The DOL has also answered the hotly debated issue about whether employees who seek leave to care for a seriously injured or ill servicemember are limited to only one 26-week leave period during their entire employment or one per 12-month period. The final regulations provide that, depending on the circumstances, an employee may take more than one 26-week leave period during his or her employment. This ASAP will explain some of the highlights of the final regulations related to military leave under the FMLA.

Organized labor's membership in the private sector has plummeted below 8 % – an all time low. To address this problem, unions have turned to an aggressive legislative agenda designed to tilt the scales in their favor. Among the items on their priority list are the Employee Free Choice Act (EFCA) and the Re-Employment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT Act).

The Department of Labor has published a rule revising the regulations that implement the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA) to incorporate amendments to the VEVRAA made by the Veterans' Benefit and Health Care Improvement Act of 2000 (VBHCIA).

The recently concluded Presidential and Congressional elections have organized labor salivating over the likely passage of the so-called and grossly misnamed Employee Free Choice Act (“EFCA”). EFCA, which actually would eliminate “employee free choice” concerning unionization, is at the very top of organized labor’s very aggressive legislative agenda and enjoys the strong support of President-elect Barack Obama. You cannot underestimate how dramatically the enactment of this misguided and ham-handed legislation could change your workplace and jeopardize your business and the livelihoods of your employees. The proposed law is nothing short of a power grab by unions. At this point, EFCA is still only proposed legislation, and no one knows exactly what form it will take upon final passage. One thing is certain, however: with strong Democrat majorities in both the House and Senate, and a President who is eager to sign the legislation, EFCA is certain to become law in some form, and employers need to begin preparing for it now.

At our recent employment and labor law seminars in Mississippi, Louisiana and Texas, we discussed the long awaited final regulations from the Department of Labor ("DOL"), which address the recent amendments to the Family & Medical Leave Act ("FMLA"). On Friday, November 14th, the Department of Labor finally released these long awaited regulations which make substantive changes to the FMLA, address the new military leave provisions and set forth new DOL notice and certification forms. Set forth below is a link to the final regulations for easy reference and highlights of the final regulations.

The Fair and Accurate Credit Transaction Act of 2003 added several provisions to the Fair Credit Reporting Act of 1970, two of which require compliance starting this month.

On Monday, November 17, the U.S. Department of Labor will issue its final regulations on the Family and Medical Leave Act. The new regulations, reportedly 750 pages long, will address the new military provisions enacted in January 2008 and fine-tune the old FMLA regulations, issued in 1995. According to Victoria A. Lipnic, Assistant Secretary of Labor, and other news sources, the following are some highlights of the new regulations.