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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On October 29, 2009, President Obama signed a Defense Department and Authorization Bill that expanded certain provisions of the FMLA. These changes are in addition to those that were made earlier this year when the FMLA was expanded to include leave relating to military service. The highlights of the most recent amendments are as follows:

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

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

Employers with foreign national employees working under H-1B and L-1 nonimmigrant visas should be prepared to receive an unannounced visit in the coming months from the U.S. Citizenship and Immigration Services' (USCIS) Office of Fraud Detection and National Security and Records Verification (FDNS). Over the summer, USCIS had announced it would begin using contract inspectors to perform thousands of "random," on-site inspections of H-1B and L-1 employers to identify fraudulently filed H-1B and L-1 petitions. The fraud detection program is funded through the mandatory $500 "anti-fraud" fee paid by employers to USCIS when sponsoring an H-1B or L-1 employee. The purpose behind the visit is to verify that the petitioning employer is a legitimate, operating business and that the H-1B or L-1 employee is an actual employee working at the job location in the position indicated on the underlying visa petition.

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

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

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

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

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

Congress Expands Family Military Leave.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On October 26, 2009, the EEOC updated its "EEO is the Law" posters. The new posters update the 2002 "EEO is the Law" poster and the 2008 Office of Federal Contract Compliance Programs (OFCCP) "EEO is the Law" poster to reflect changes made by the Americans With Disabilities Act Amendments of 2008 and the Genetic Information Nondiscrimination Act of 2008 (GINA). The new posters also included a changed Vietnam Era, Special Disabled Veterans Section and a new section regarding Retaliation.

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

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

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

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

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

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

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

Two recent decisions highlight the risks employers face when hiring unionized employees as part of an acquisition or business transfer. In general, when a new employer continues a prior employer's operations and hires a majority of its employees from the prior employer's unionized workforce, the new employer is a labor law successor and, as such, must recognize and bargain with the union over any future changes in the terms and conditions of employment. Whether the new employer can unilaterally establish the initial terms and conditions of employment, however, or must continue the prior employer's terms and conditions until it bargains with the union and reaches a new agreement or an impasse, is more difficult to determine, especially in light of two recent cases that appear to provide diametrically opposed views.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

26 questions and answers about H1N1 and workplace law.

Outlining proper steps.

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

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

In response to recent academic studies suggesting that employers underreport accidents and discourage employees from reporting injuries sustained on the job, the Occupational Safety and Health Administration (OSHA) announced on October 1, 2009, a new national emphasis program (NEP) on recordkeeping.

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

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

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

As published in yesterday's Federal Register, the Department of Homeland Security (DHS) has officially rescinded its Social Security "no-match" regulation, which had been stalled in federal litigation and was never fully implemented. The "no-match" rule laid out mandatory procedures for employers to follow if they received Social Security Administration (SSA) no-match letters or DHS notices regarding discrepancies with an employee's name or Social Security Number. The proposed rule would have required employers and their employees to resolve the discrepancies in a very short timeframe. By following these procedures, employers could avoid the risk that a no-match letter could be used as part of any allegation that the employer had "constructive knowledge" that the employee was not authorized to work in the U.S. DHS had acknowledged that the no-match letters were often received by employers months and even years after the submission of W-2 earnings reports. DHS had also acknowledged that the discrepancies were often a result of the high percentage of inaccurate data within the SSA database. For these and other reasons, DHS issued a proposed rule rescinding the no-match regulation on August 19, 2009. The final rule published in yesterday's Federal Register adopts the proposed rule without changes and becomes effective in 30 days.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The U.S. Department of State (DOS) has announced the opening of the registration period for the DV-2011 Diversity Visa (DV) Lottery Program. The DV Lottery Program enables foreign nationals to apply for permanent residence in the United States without employment or family sponsorship. The DV Lottery Program selects 50,000 people annually who can then pursue an immigrant visa at a U.S. embassy or consulate in their home country or adjust their status in the U.S. through the U.S. Department of Homeland Security (if a foreign national is residing legally in a nonimmigrant status in the U.S. at the time of the application).

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

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

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

On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) issued lengthy, proposed regulations concerning the recent amendments to the Americans with Disabilities Act (ADAAA), which substantially expanded the definition of disability and the corresponding reach of the Americans with Disabilities Act. The EEOC estimates that an additional one million workers may now meet the revised definition of disability. Interested parties have on or until November 23, 2009, to submit comments to the proposed regulations. This advisory will highlight just a few of the changes in the proposed regulations.

On September 9, 2009, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) issued its final regulations revising the personal protective equipment (PPE) sections of its general industry, shipyard employment, longshoring and marine terminals standards concerning requirements for eye-and face-protective devices, and head and foot protection. The revised standards go into effect on October 9, 2009.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Lily Ledbetter Fair Pay Act recently caused two courts to reverse themselves and allow employees to proceed with discrimination claims that the courts previously dismissed as untimely. The Ledbetter Act permits employees to file claims based on an earlier compensation decision if the decision adversely affects the employee within the applicable period for filing a charge with the EEOC. In these cases, the courts concluded an employer's failure to answer a request for a pay increase, and another employer's conversion of its defined benefit pension plan to a cash balance pension plan, each constituted allegedly discriminatory compensation decision that adversely impacted the employees' "wages, benefits or other compensation" each time the employee was paid, thereby rending the employee's respective EEOC charges timely.

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

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

On September 8, 2009, a Federal Acquisition Regulation (FAR) final rule (the "federal contractor rule") went into effect that requires certain federal contractors and their subcontractors to agree, through language inserted into their qualifying federal contracts, to use the E-Verify program to electronically verify the employment eligibility of certain employees. U.S. Citizenship and Immigration Services (USCIS) has recently published a new Supplemental Guide to its E-Verify User Manual for federal contractors. The guide offers important guidance and clarification on some questions that have remained unanswered since the federal contractor rule was first published. Employers are encouraged to carefully review the supplemental guide and user manual, which can be downloaded from the USCIS website at www.uscis.gov.

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

HIPAA Breach Notification Rules.

IRS Publishes Updated Notices for Retirement Plan Rollover Distributions.

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

On September 4, 2009, the Occupational Health and Safety Administration (OSHA) announced that it would focus its 2009 Site-Specific Targeting (SST) Program on nearly 4,000 high-hazard worksites on the agency's list for comprehensive safety inspections. For the past 11 years, OSHA has used the SST Program to target non-construction employers with high numbers of serious injuries and illnesses. OSHA revises its SST Program annually based upon injury and illness data gathered from its annual Data Initiative Survey of approximately 80,000 employers. The employers surveyed have 40 or more employees and historically high rates of occupational injury and illness.

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

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

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

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

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

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

On September 8, 2009 the government will begin requiring federal contractors to use E-Verify to verify the legal work status of newly-hired employees and current employees working directly on the covered federal contract. The U.S. Chamber of Commerce is seeking an emergency order from the U.S. Court of Appeals for the Fourth Circuit to delay implementation but it appears unlikely to be granted.

As previously reported in Compliance Matters, implementation of a controversial Obama administration rule requiring many federal contractors and subcontractors to use the federal government's E-Verify employment verification system was tied up in a court challenge in a Washington D.C. federal court. About two weeks ago, the Court denied the various legal challenges and cleared the way for it's implementation effective today.

With numerous appeals filed, monitoring the evolving developments regarding the implementation of Executive Order 13465 requiring certain employers qualified as federal contractors to enroll in the Department of Homeland Security's employment verification system has been a full-time occupation.

E-Verify Requirement Back on Schedule for Federal Contractors/Subcontractors, Effective September 8, 2009.

The Department of Homeland Security has announced an effective date of September 8, 2009, for the rule that will mandate E-Verify use by certain federal contractors and subcontractors. E-Verify is a free Internet-based system operated by Homeland Security and the Social Security Administration that allows participating employers to use new hires' personal identification information to verify employment eligibility.

The U.S. Citizenship and Immigration Services has reminded federal contractors and subcontractors that effective September 8, 2009, they must use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify Clause.

Courts recently have interpreted anti-discrimination laws to provide statutory protection for workers who are not members of a particular protected category, but who have a relationship with “protected” persons. By doing so, courts have extended greatly the scope of federal anti-discrimination laws.

The regulation requiring certain federal contractors to use E-Verify goes into effect on September 8, 2009. Implementation of the regulation has been delayed four times and many questions remain unanswered. A simple Q&A might be helpful to sort out exactly what this regulation means to employers.

U.S. Citizenship and Immigration Services (USCIS) has issued a new version of the form I-9, bearing a revision date of August 7, 2009. The new form will remain valid until August 31, 2012. The current version of the I-9 form can be downloaded from our website or from USCIS.gov.

Absent a court injunction, on September 8 federal government agencies will start adding the "E-Verify Clause" to most significant acquisition contracts, requiring vendors to begin to use E-Verify within 30 days and to insert a similar clause into the vendor's contracts with its own vendors, and so forth. Given the increasing extent of the federal arm into the economy, most large institutions and many small companies will be affected. Plans should be in place and ready to implement.

So far, six states have legalized same-sex marriages: Massachusetts; Connecticut; Iowa; Vermont; Maine; and New Hampshire. The Massachusetts, Connecticut and Iowa laws are already in effect. The other states have enacted laws that will take effect within the next six months: the Vermont law will take effect on September 1, 2009; the Maine law will take effect 90 days after the close of the legislative session, or approximately September 12, 2009; and the New Hampshire law will take effect on January 1, 2010.

The Sarbanes-Oxley Act of 2002,1 (“Sarbanes-Oxley” or “SOX”) protects employees of publicly traded companies from retaliation for providing information related to possible acts of fraud against shareholders. In Van Asdale v. International Game Technology, No. 07-16597 (9th Cir. 2009), the U.S. Court of Appeals for the Ninth Circuit, addressing for the first time the substantive elements of a SOX whistleblower claim, ruled that employees do not have to prove that actual shareholder fraud has occurred to maintain such a suit. Rather, plaintiffs need only establish that they had an actual and objectively reasonable belief that shareholder fraud occurred. In addition, the Ninth Circuit held that concerns about the potential disclosure of attorney-client privileged information would not bar in-house attorneys from asserting SOX whistleblower claims. While the ruling is ultimately a conservative one that closely tracks the existing case law and regulations, it is an important decision for the Ninth Circuit.

On August 24, 2009, the Department of Health and Human Services ("HHS") issued its interim final rule with regard to breach notification requirements for unsecured protected health information. Under the Health Information Technology for Economic and Clinical Health (HITECH) Act, which is part of the American Recovery and Reinvestment Act of 2009, HHS was required to issue interim final regulations regarding notification provisions in the event of a breach of unsecured protected health information. Generally, the HITECH Act requires HIPAA covered entities (i.e. health plans, health care providers who transmit certain transactions electronically and health care clearinghouses) to provide notification to affected individuals upon the discovery of a breach of unsecured protected health information. A notice is also required to be sent to a major media outlet if more than 500 individuals within a state or jurisdiction are impacted by the breach. Additionally, covered entities are required to notify HHS in the event of a breach of unsecured protected health information impacting 500 or more individuals.

Although President Obama has recently indicated that comprehensive immigration reform is likely to be on the back burner until 2010, it's clear the administration plans to continue focusing on employers' immigration compliance. In recent months, we've seen the Department of Homeland Security (DHS) and the Department of Labor (DOL) increase their investigations of employers hiring foreign national workers. On July 1, 2009, in response to DHS' announced shift in enforcement strategy, U.S. Immigrations and Customs Enforcement (ICE) issued 652 Notices of Inspection (NOIs) to conduct Form I-9 audits of businesses across the country; just 503 notices were issued to employers in all of 2008. Around the same time, U.S. Citizenship and Immigration Services (USCIS) announced it was using contract inspectors to perform thousands of "random," on-site inspections of H-1B and L-1 employers to identify fraudulently filed H-1B and L-1 petitions. The fraud detection program is funded through the mandatory $500 "anti-fraud" fee paid by employers to USCIS when sponsoring an H-1B or L-1 employee. In addition, the U.S. Department of Labor announced that it hired 250 new investigators to investigate employers' wage and hour obligations.

Although sometimes lost in the buzz over health care reform and union card-check legislation, over the past several months, Congress has also been considering a slew of aggressive proposals designed to expand various aspects of the Family and Medical Leave Act (FMLA). While these changes could affect employers in all industries, retailers should be especially concerned due to the possible lowering of requirements for coverage of part-time employees.

Retailers have been spared the high-profile immigration woes that some industries (such as manufacturing, food processing, and hospitality) have faced in the past few years. But the new administration recently announced that it is going to turn the heat up on employers from all industries, so now more than ever it is important to ensure that your business is protected. Here are five quick things about immigration laws that are important for you to know.

On August 24, 2009, the Department of Health and Human Services (HHS) issued interim final rules regarding the new security-breach-notification requirement of the Health Insurance Portability and Accountability Act (HIPAA). Covered entities and their business associates (service providers to covered entities) only have 30 days after publication (or until September 23, 2009) to comply with these new rules.

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

The Department of Homeland Security (DHS) took another step in its worksite enforcement efforts on August 19, 2009 when it announced its intention to rescind the embattled Social Security No-Match Rule, and to focus on increased compliance through its E-Verify, IMAGE and other employment verification programs.

As more states enact laws allowing patients to ingest marijuana as a means of coping with various diseases and symptoms, the question quickly arises for human resources professionals about how this affects the employment relationship. If employees are legally allowed to smoke at home to manage night seizures, are they still going to be affected by marijuana the next day at work? Do you have to accommodate this?

With the disclosure of personal information now rampant on social networking sites like Facebook and Twitter, it sometimes seems like privacy is a relic of the past. Don't be fooled: privacy is a hot legal topic with serious implications for employers.

On August 11, 2009, the FTC filed proposed consent decrees in United States v. Quality Terminal Servs., LLC D. Colo., No. 09-cv-01853 and United States v. Rail Terminal Servs., LLC. W.D.Wash., No. 09-CV0111, that will require the companies to pay a combined $77,000 in penalties for violating the Fair Credit Reporting Act (FCRA) and the Federal Trade Commission (FTC) Act, by using employee background checks without providing applicants and current employees with the required "pre-adverse action" and "adverse action" notices. The consent decrees underscore the importance of following the proper procedures when taking action against applicants and employees based on background checks.

The rule of the United States Department of Transportation (“DOT”) requiring direct observation of employees providing urine specimens during return-to-duty and follow-up drug tests takes effect today, August 31, 2009.

U.S. Citizenship and Immigration Services (USCIS) has released the updated version of the Form I-9, Employment Eligibility Verification, which is now available on the USCIS website at http://www.uscis.gov/files/form/i-9.pdf. The revised form is dated August 7, 2009, and will expire on August 31, 2012. Employers may use Form I-9 with the revision date of either August 7, 2009, or February 2, 2009, for all new hires or re-verifications. There are no substantive changes between these two versions. Employers do not need to complete new forms for existing employees for whom an I-9 has been properly completed.

Paving the way for full implementation on September 8, 2009, a federal District Court in Maryland has dismissed a lawsuit challenging the implementation of the E-Verify rule for federal contractors. Chamber of Commerce of the USA v. Napolitano, No. AW-08-3444 (D. Md. Aug. 25, 2009). The Rule would require federal contractors to use the federal E-Verify program to verify the legal status of all new hires and certain existing employees assigned to work on federal contracts. A federal contractor will not be required to begin using E-Verify on September 8, 2009, unless it wins a new contract(s) on or after the effective date which contains the E-Verify provision or unless any of its current federal contracts are modified/amended on or after September 8 to include such a provision.

A recent announcement by the Office of Federal Contract Compliance Programs (OFCCP) that Gerber Products Company will pay $900,000 to settle findings of hiring discrimination against 1,912 rejected minority and female applicants may be a reflection of the increased aggressiveness that has been promised by the agency. Secretary of Labor Hilda Solis stated that the settlement "should put all federal contractors on notice that the Labor Department is serious about eliminating systemic discrimination."

As previously reported, September 8, 2009, marks the first date that federal contractors and subcontractors will be required to begin using the federal government's E-Verify system to electronically verify the work eligibility of newly-hired employees and existing employees assigned to work on qualifying government contracts. The rule is an amendment to the Federal Acquisition Regulation (FAR), which governs the federal government's acquisition process. The one item that remained outstanding was a pending lawsuit filed by the U.S. Chamber of Commerce and other business groups challenging the regulation.

Given the current economic state and widespread availability of technology, your organization may be exposed to the threat of "corporate raiding": competitors luring employees – and your company's valuable trade secrets and proprietary business information – away. There are plenty of examples to choose from. In May 2009, Lockheed Martin Corp. won a $30 million jury verdict against L-3 Communications Corp. over the use of Lockheed's proprietary data and trade secrets. Also in 2009, a Kansas electronics design and manufacturing company was awarded nearly $17.5 million in actual and punitive damages in a lawsuit alleging misappropriation of trade secrets. And a $5.8 million settlement was recently reached in a corporate raiding case in Delaware between two office supply companies, one of which allegedly hired away a slew of employees and took confidential information from the other. Regardless of the cost, corporate raiding has seemingly become a mainstream business practice. How can you prevent the illegal pilfering of your employees and valuable business information?

Legislation was introduced in both the U.S. Senate and House of Representatives this summer to prohibit job discrimination on the basis of an employee’s actual or perceived sexual orientation and gender identity.

Employee gossip about workplace supervisors is as ancient as chatter around the water cooler. But the dynamics of workplace gossip have gone through massive changes since online social networking sites like MySpace and Facebook found their way into the workplace. In the case of Pietrylo v. Hillstone Restaurant Group, a federal jury in the United States District court for the District of New Jersey, Case No. 06-5754, sent a stern message to employers regarding social networking and its effect on the workplace.

The influenza A (H1N1) virus, or “swine flu,” has emerged as a highly-contagious illness with the capacity to incapacitate its victims for 3-7 days or more. Since its outbreak, many scientific models project that H1N1 is likely to reemerge this fall as a more easily transmitted and/or more serious virus, and recent statistics predict as many as half of all Americans will be affected.

Three federal agencies recently issued a joint press release announcing the release of a new guidance to help businesses plan for and respond to the upcoming flu season. The press release issued by the Department of Commerce Secretary Gary Locke, Department of Health and Human Services Secretary Kathleen Sebelius, and Homeland Security Secretary Janet Napolitano urges employers to "set the right tone in the workplace" including implementing common sense measures to reduce the risk of spreading the flu and encouraging workers who are sick to stay home. The press release notes that the guidance will help employers prepare for the upcoming influenza season, which will help ensure business continuity necessary to keep the economy functioning. The Centers for Disease Control (CDC) issued the guidance and a communication toolkit to assist employers in preparing for influenza.

This is a reminder that the federal contractor E-Verify rule that amends the Federal Acquisition Regulations (FAR) to require certain federal contractors and subcontractors to enroll in and use the E-Verify system is scheduled to take effect on September 8, 2009.

Sarbanes-Oxley Act of 2002 (“SOX”) is a federal law. Congress passed it on July 30, 2002, in response to a number of major corporate and accounting scandals. SOX, among other things, created whistleblower protection for any employee who reports that a publicly-traded company subject to SEC regulations has engaged in any of a number of fraudulent activities. Although introduced with great fanfare, the Ninth Circuit Court of Appeals just recently issued its first opinion analyzing the substantive requirements necessary to establish a claim under the Act’s whistleblower-protection provisions. In Van Arsdale v. International Game Technology, decided on August 13, 2009, the Court held whistleblowers must show only that they called attention to what they believed was fraud to sue their employers for wrongful termination under SOX.

Employers who sponsor workplace wellness programs should be on alert for new regulations that may change their programs extensively. The employment provisions (“Title II”) of the Genetic Information Nondiscrimination Act (“GINA”), which prohibit employers from discharging, refusing to hire or otherwise discriminating on the basis of genetic information, become effective on November 21, 2009. Although final GINA regulations were expected months ago, the Equal Employment Opportunity Commission has now approved a proposed final rule to implement Title II. The proposed regulations are being reviewed by the White House Office of Management and Budget and will be released by the EEOC only weeks before the law’s November 21st effective date.

The Health Information Technology for Economic and Clinical Health Act (HITECH Act), one small legislative portion of the massive economic stimulus bill enacted on February 17, 2009, mandates that employers and health care providers provide notice of any "breach" of "unsecured" protected health information (PHI) to affected individuals; the U.S. Department of Health and Human Services (HHS); and, in certain circumstances, "prominent media outlets." The quoted terms and many others in the HITECH Act are either undefined or raise a multitude of unanswered questions. On August 24, 2009, HHS published in the Federal Register interim final regulations and accompanying commentary that clarifies many of the Act's ambiguities.

The economy has clearly impacted the H-1B cap. Cap-subject H-1B petitions have trickled in to U.S. Citizenship and Immigration Services (USCIS) since the 2010 fiscal year filing period opened in early April. There has been virtually no movement in H-1B numbers since the initial April 1-7 filing period, with new filings apparently being offset by employer revocations and USCIS petition denials. The most recent report from USCIS indicated that approximately 45,000 petitions had been received toward the 65,000 H-1B cap and 20,000 have been received toward the advanced degree cap exempt cases. USCIS posts periodic updates to its website and Ogletree Deakins will continue to monitor and report on H-1B cap figures.

U.S. Citizenship and Immigration Services (USCIS) has recently been issuing interview notices to I-485 adjustment of status (AOS) applicants, even though the relevant priority date may not be current and therefore the AOS application cannot presently be approved. Why would USCIS schedule an interview under these circumstances?

Federal and state immigration enforcement activities continue to rise. Over the past few weeks, we have seen the Department of Homeland Security (DHS) initiate 652 I-9 audits, affirm the regulation requiring certain federal contractors to use E-Verify, and conduct H-1B employer site visits. At the state level, South Carolina’s Department of Labor, Licensing and Regulation has conducted 50-55 audits of businesses for compliance with the state’s law requiring, among other things, employers of 100 or more persons to verify the employment eligibility of new hires by using E-Verify or viewing approved state-issued drivers licenses.

United States citizens and lawful permanent residents (“green card” holders) can now take advantage of streamlined entry processes at 20 U.S. airports under the Global Entry initiative. Global Entry applicants must first enroll at any of the 20 locations by completing an interview and biometric data collection. Upon approval, Global Entry participants can use kiosks at any of the 20 airports to complete U.S. Customs and Border Protection (CBP) inspection upon returning to the United States from international travel. Global Entry users are typically processed in under five minutes. Under a reciprocal arrangement that links the U.S. program with the Privium program in Amsterdam, citizens of the Netherlands can also apply to participate in Global Entry.

United States Citizenship and Immigration Services (USCIS) has begun a widespread initiative to visit H-1B petitioner/employer worksites. Using funds collected from the $500 H-1B fraud fee, USCIS hired outside contractors to conduct these site visits. Reports indicate that USCIS will be making thousands of such visits in 28 cities over the coming weeks.

Federal law will soon require employers to provide notice to their health plan participants, the Department of Health and Human Services (HHS), and potentially even the media, following breaches of participant unsecured protected health information (PHI), under interim final HHS regulations set to be published in the August 24, 2009, Federal Register.

Earlier this year, Ford & Harrison began our series NLRB Update, analyzing 10 critical decisions issued by the Bush-appointed National Labor Relations Board ("NLRB" or "Board") that likely will be overturned in the next few years if reconsidered by an Obama-appointed Board now chaired by Wilma Liebman. Member Liebman's new position as Board Chair is particularly important, as she issued dissents in most of the critical pro-employer decisions issued under the Bush-era labor Board, challenging the reasoning and conclusions reached by the Board majority. Careful analysis of Liebman's dissenting opinions in these major decisions provides a legal roadmap – charting the likely course the Liebman Board will take if it is able to reconsider these issues.

For current and prospective federal contractors, the American Recovery and Reinvestment Act of 2009, also known as the "Stimulus Package," offers significant economic opportunity amid the current recession. Yet, acceptance of stimulus funds will require significant compliance with employment laws related to federal contracting, especially in light of the government's renewed focus on enforcement and oversight. Thus, this Report is designed to provide employers with a one-of-a-kind comprehensive compliance guide of the various employment laws.

Beware of NLRB Nominee Becker, Chamber of Commerce says; Union must give hospital 10 days’ notice of workers’ refusal to work voluntary overtime; D.C. Circuit nixes employer-friendly NLRB ruling on non-work solicitations; “Full capacity” language in contract comes back to bite steel company.

On August 3, 2009 the Department of Labor issued a proposed regulation to implement Executive Order 13496, signed by President Obama on January 30, 2009. EO 13496 requires non-exempt Federal contractors and sub-contractors to post notices informing their employees of their rights under the Federal Labor laws, and more specifically, the National Labor Relations Act (NLRA). The proposed regulation does not apply to public sector employers or employers covered by the Railway Labor Act. The full text of the proposed regulation is available at: http://edocket.access.gpo.gov/2009/E9-17577.htm.

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

The current economic climate has caused many employers to institute reductions in force. In doing so, employers often provide their former employees with severance pay in an effort to soften the impact of unemployment. Normally, both the employer and the employee recipient incur taxes imposed by the Federal Insurance Contributions Act ("FICA")1 on these payments. However, it is possible for both employers and employees to reduce FICA taxes by structuring some or all of these severance payments as supplemental unemployment benefit payments ("SUB-Pay").

On the same day, ICE leadership sent mixed messages about enforcing I-9 rules. ICE's leader publicly promised more I-9 audits than the recently announced 650, with administrative fines and criminal prosecutions to follow. But ICE withdrew a "safe harbor" regulation for employers who receive a "no match" letter. Meanwhile, serious enforcement continues and the risk of noncompliance is high.

Even before Congress began laboring over the potentially biggest health care legislation in years, employers had – or should have had – plenty of health and welfare plan issues on their agendas for the second half of 2009.

The August 19, 2009 Federal Register will contain a proposed regulation formally rescinding the DHS August 2007 no-match safe harbor rule. This move was heralded in prior statements by Homeland Security Secretary Janet Napolitano.

Wage and hour class and collective actions targeting hospitals and other healthcare employers have proliferated in recent months. Plaintiff-side firms have launched national assaults against healthcare employers, including websites with lists of healthcare employers who are being sued or are "under investigation," and mass emails to employees of healthcare employers who are targeted. Attached is a brief excerpt from a Littler Report that canvasses recent developments, explores the nature and risks of class and collective actions, the types of claims being made and suggests practical solutions to defend against and avoid such claims in the future.

In this attorney-authored article, Salvador Simao of Littler's Newark office explains how a restaurant employer should calculate the tip credit for an employee who performs a variety of tasks that are both tipped and non-tipped. In addition, Simao explains how to calculate overtime for an employee who has dual roles in his or her position.

The trend toward increasing obligations for maintaining the privacy and security of certain information continues. As the January 1, 2010, deadline for compliance with Massachusetts data security regulations looms, other legislative and regulatory developments continue to drive businesses to take more aggressive and comprehensive steps toward safeguarding the personal information they maintain. Some key developments should be considered.

It is increasingly common for employers, especially those based in California, to offer health benefits to domestic partners of their employees. In certain instances when access as an active employee to health benefits is lost (e.g., due to termination of employment for a reason other than "gross misconduct"), such former employees have a right under federal or state law to elect to continue health coverage for a period of time. However, whether an employee's domestic partner has a right to elect continued health coverage may depend on whether the employer plan providing the health coverage is subject to federal or state continuation coverage law. Domestic partners are not legally recognized for purposes of federal law due to the federal Defense of Marriage Act ("DOMA"), which provides that "‘marriage' means only a legal union between one man and one woman as husband and wife." However, recent guidance from the San Francisco Regional Office of the U.S. Department of Labor (the "DOL") indicates that an employee's domestic partner may be eligible for continued health coverage under COBRA in certain circumstances and that, as a result, the DOMA would not preclude such coverage.

The FLSA is enforced through two primary means: the United States Department of Labor (DOL) and civil litigation. The DOL is established with a broad purpose: "The purpose of the Department of Labor shall be to foster, promote, and develop the welfare of the wage earners of the United States, to improve their working conditions, and to advance their opportunities for profitable employment."1 The DOL has within it a separate Wage and Hour pision dedicated to enforcement of the statutes at issue in this article.2 The FLSA grants the DOL the authority to file suit against employers that fail to comply with its requirements.3

On August 3, 2009, the U.S. Department of Labor (DOL) issued a proposed rule to implement President Barack Obama’s recent Executive Order 13496 requiring federal contractors to inform employees of their rights under federal labor laws, including the National Labor Relations Act (NLRA). Executive Order 13496 requires covered contractors to include certain language in their contracts and to conspicuously post notices of employee rights under federal labor laws. The proposed rule describes the content of the required notice, which contractors and subcontractors must post, and the penalties that can be imposed for noncompliance.

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 take effect on January 15, 2009.

The Health Information Technology for Economic and Clinical Health (HITECH) Act was signed into law on February 17 as part of the American Recovery and Reinvestment Act of 2009 (H.R. 1), also known as the economic stimulus bill. The legislation was designed to advance the use of health information technology, such as electronic health records.

The U.S. Citizenship and Immigration Services is deploying contract inspectors to perform thousands of on-site inspections of petitioning employers who have sponsored H-1B specialty occupation visa employees. The inspection program is funded through the mandatory $500 “Anti-Fraud Fee,” one of the government fees employers pay when sponsoring an H-1B employee. These inspections represent a new facet in Department of Homeland Security enforcement efforts, following closely the issuance by Immigration and Customs Enforcement of 650 I-9 audit notices during a single week in June 2009. Initially, reviews are slated to be conducted in 28 cities with employers selected randomly.

This is a reminder that covered employers are required to file their EEO-1 and VETS 100 Reports on or before September 30, 2009.

Compliance with equal employment opportunity and affirmative action requirements for federal contractors and subcontractors is more important now than ever, with a new director, reorganized department and increased enforcement efforts by the Office of Federal Contract Compliance Programs (OFCCP). This Alert highlights some of the recent developments affecting federal contractors and subcontractors.

On March 3, 2009, Representatives Carolyn B. Maloney (D-NY), George Miller (D-CA), and John Lewis (D-GA) introduced the “Working Families Flexibility Act” (H.R. 1274). The Act would protect from retaliation and discrimination, employees who request flexible work schedules. The legislation was created in an effort to help employees balance the demands of both work and family.

On May 18, 2009, Democrats in Congress introduced the Healthy Families Act of 2009. The Healthy Families Act would require any employer who employs at least fifteen people to provide employees a minimum of seven days paid sick leave to be used to care for the employee or a relative of the employee.

In January 2009, H.R. 824 - the FMLA Enhancement Act of 2009 - was introduced to amend and enhance the Family and Medical Leave Act of 1993 (“FMLA”). This bill would expand the FMLA’s current application to employers by lowering the threshold for coverage. Instead of fifty or more employees being the threshold, employers who employ twenty-five employees or more would become subject to the FMLA under this proposed amendment. Not only would more employers be subject to the FMLA, but eligible employees would be entitled to a new form of leave that would be in addition to the current leave provided by the FMLA.

Immigration enforcement is here to stay. Although the Obama Administration has raised concern about the manner and consequences of worksite enforcement raids, it is clear that the Administration will use civil and criminal enforcement measures to go after employers believed to be knowingly employing illegal workers.

In new regulations concerning temporary and permanent religious worker visa categories issued in November 2008, USCIS included a requirement that the employer notify USCIS within 14 days if its employment of a temporary R-1 religious worker ends or goes below the 20 hour per week minimum. USCIS has now posted a web site notice where the notice should be sent (preferably email to CSCR-1EarlyTerminatonNotif@dhs.gov) and what it needs to say. Employers of foreign nationals in other classifications should realize that similar rules and arrangements are probably in the works for them.

The U.S. Department of Labor has announced that Patricia Shiu is the Obama Administration’s choice to be the next Director of the Office of Federal Contract Compliance Programs. For the past several years, Ms. Shiu has been the Vice President of Programs at the Legal Aid Society of San Francisco’s Employment Law Center. Since joining the Center in 1983, Ms. Shiu, an attorney, has focused primarily on employment discrimination cases, particularly those involving race, gender, disability and sexual orientation discrimination.

For many of us, the perils of a lunch break include braving the weekend's leftovers, testing the over-used and under-cleaned breakroom microwave, or searching the community refrigerator for your poorly-labeled brown-bag lunch. But as recent lawsuits filed against several Pennsylvania hospitals demonstrate, meal breaks can prove far more stomach-churning than three-day old leftovers.

Blackberries, cell phones and pagers – are they a source of freedom and flexibility or are they just too darned restrictive? The question is not just a philosophical one. From a practical standpoint, many employers are learning that the wrong answer could be costly.

Patricia A. Shiu has been appointed Deputy Assistant Secretary of the U.S. Department of Labor to head the Office of Federal Contract Compliance Programs. She is currently Vice President for Programs at the Legal Aid Society-Employment Law Center in San Francisco, where she has worked for 25 years. Shiu has zealously advocated for women’s rights in the workplace and helped draft legislation that led to the enactment of California’s Family Rights Act, which provides for leave rights similar to those in the federal Family and Medical Leave Act, and the more-recent California Paid Family Leave Act.

Foreign companies with U.S. operations should be aware of the compliance requirements imposed by employee benefit laws (including federal tax laws and the Employee Retirement Income Security Act of 1974, or ERISA) in order to avoid the risks and liabilities that can arise either from litigation brought by employees, or as a result of government enforcement that could lead to excise taxes and penalties.

Your human resources director has brought you a tough one: one of your sales employees has complained that her Sales Manager harassed her sexually, and had made disparaging racial remarks about a customer. You're stunned because the manager has been a good performer, generating good numbers and seems like a real straight arrow guy. What do you do?

The Federal Trade Commission (FTC) recently announced that it is postponing implementation of the Red Flags Rule until November 1, 2009, in order to provide businesses with more education about compliance with the Rule. This will include additional resources and guidance to clarify whether businesses are covered by the Rule and, if so, what they must do to comply.

As companies headquartered in the United States and elsewhere in the developed world seek less expensive alternatives to producing manufactured goods in their homelands, the international community has gained a greater awareness of the labor law practices in lesser developed nations. From time to time, companies have been accused of engaging in practices relating to pay and/or work conditions that would not be allowed in the United States.

Continuing the pro-labor actions of the current Administration, the U.S. Department of Labor on August 3, 2009, proposed regulations to implement an Executive Order issued by President Barack Obama, within two weeks after taking office, requiring government contractors to advise employees of their rights under the National Labor Relations Act to join and form labor unions. Executive Order 13496, one of three employment-related Executive Orders issued on January 30, 2009, reversed Bush Administration policies which required government contractors to notify employees of their rights not to join unions or contribute agency fees for union expenditures unrelated to representation pursuant to Communication Workers of America v. Beck, 487 U.S. 735 (1988).

Considering the widespread availability of computers and email to employees, it's hardly surprising that union organizers and pro-union employees now look to an employer's email system as a prime means of organizing. Here, in the context of an important new legal decision, we discuss options for lawful and effective management and control of your e-systems, including in particular your email systems.

Good news for employers this year! Well . . . at least as compared to last year's Supreme Court term. The majority of the employment cases decided by the Court this term can be considered a victory for employers, and even one of the decisions siding with employees is not all bad. So, after losing all but four of the eleven employment decisions decided last year, employers can finally breathe a welcome sigh of relief. As discussed below, employers can claim victory in six cases, while only accepting defeat in one case and considering another case to be a mixed result.

To be sure, the government has stepped up immigration enforcement in the past several months. According to government reports, Federal prosecution of immigration related crimes increased considerably during the first few months of the Obama Administration. These reports show over 9,000 new immigration prosecutions in April 2009, which represents a 33% increase from one year ago.

On July 28, 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 July 24, 2009, it has received only 44,900 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.

On July 28, the White House announced that President Obama had selected epidemiologist David Michaels, Ph.D, MPH, to head OSHA as Assistant Secretary of Labor. Mr. Michaels must be confirmed by the Senate. He has prior government experience, serving as the Department of Energy Assistant Secretary for Environment, Safety and Health during the Clinton Administration. One of his achievements at DOE was to aid the passage of the Energy Employees Occupational Illness Compensation Program Act of 2000, designed to compensate nuclear weapons workers who developed illnesses as a result of exposure to radiation and chemicals in the workplace.

As our country struggles with difficult economic times, many employers have chosen to lay off at least some portion of their workforce. The unemployment rate in the U.S. is nearing 10% in recent months. As a result, the EEOC has seen a rise in both age discrimination charges and requests by employers for laid-off employees to sign waivers of discrimination claims in exchange for severance agreements. The EEOC has recently published a document titled "Understanding Waivers of Discrimination Claims in Employee Severance Agreements." While the publication is directed more toward employees than employers, it offers employers some helpful insight on the positions the EEOC takes towards waivers of discrimination claims included in severance agreements.

As the union-friendly Employee Free Choice Act (EFCA) (S. 560 and H.R. 1409) makes its way through Congress, one of the most controversial provisions of the legislation has been withdrawn. That's the good news for employers.

Many sponsors of 403(b) plans (also known as tax-sheltered annuities) will be required to file a full-blown Form 5500 for the first time in 2010, with respect to the 2009 plan year. There is concern, however, that numerous questions left unanswered by the Internal Revenue Service's recent Final Regulations in terms of a plan's treatment of its contracts and other investments must be answered in order for these filings to be possible.

The United States Department of Transportation (“DOT”) has reinstated a rule requiring direct observation of employees providing urine specimens during return-to-duty and follow-up drug tests. The rule was published in the Federal Register on July 30, 2009, and will become effective on August 31, 2009.

President Barack Obama has announced he intends to nominate Professor David Michaels to be the Assistant Secretary of OSHA. Professor Michaels is the interim chair of the Department of Environmental and Occupational Health at the George Washington University School of Public Health in Washington, D.C. If confirmed, Professor Michaels will join Acting Assistant Secretary of OSHA Jordan Barab in the political leadership of the safety and health agency.

The Department of Homeland Security is sending investigators, often private investigators hired by the government, to visit employers of sponsored foreign nationals to confirm that the employer is in business and that the work arrangements are as represented in immigration filings. Employers need to notify their receptionists to route such callers and visitors to appropriate counsel and managers.

For expedited reviews of COBRA premium assistance denials, former federal and state workers can now use a new website and hotline launched by the Centers for Medicare and Medicaid Services ("CMS"). The American Recovery and Reinvestment Act of 2009 ("ARRA") provided for, among other things, an expedited review of the denial of benefits when an individual's former group health plan denies eligibility for COBRA premium assistance. Under the ARRA, the CMS processes all requests for review that are filed by federal government employees, employees of state and local governments, and individuals covered by state continuation coverage laws that apply to employers with fewer than 20 employees (also known as "mini-COBRA" programs). Last week, CMS launched a website, http://www.ContinuationCoverage.net, and a toll free hotline, 1-866-400-6689, that unemployed workers in these categories can use to request an expedited review of their former employer's denial of eligibility for COBRA premium assistance.

The swine flu pandemic means employers need to take steps to protect workers. In this article, Ford Harrison provides advice for employers on swine flu infection control procedures. We also discuss the impact of the Americans with Disabilities Act (ADA) on employers' pandemic preparation efforts.

Whoa Nellie!; When Your Employees Come Marching Home: Reemployment Obligations Under USERRA; The Golden State: Changes to ADA, FMLA, Are Old Hat For California Employers, But Watch Out For Meals and Mileage;

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 July 20, 2009, OSHA announced its new Site-Specific Targeting (SST) Plan for General Industry worksites with 40 or more employees. The SST Plan is OSHA’s primary tool for targeting employers with high numbers of serious injuries and illnesses for on-site inspections. This Plan does not apply to Construction worksites or to states with their own state OSHA agency. The 2009 SST Plan is based on employers’ OSHA 300 Logs and the OSHA 300A Annual Summary information for calendar year 2007.

Two weeks ago, the federal appeals court responsible for reviewing nationwide decisions of the National Labor Relations Board (NLRB) rendered an important decision impacting union and non-union employers alike.

Last September, President George Bush signed the ADA Amendments Act (ADAAA) of 2008, which requires courts to interpret the ADA broadly when determining whether an individual has been discriminated against because of a disability. On June 17, 2009, the Equal Employment Opportunity Commission (EEOC) voted in favor of revising its rules to conform to the ADAAA. These amendments, as well as the proposed rules, will make it easier for individuals seeking protection under the ADA to establish that they have a disability. The changes to the rules, approved by the EEOC in a 2-1 vote, must now be reviewed by other federal agencies, including the Department of Transportation, the Justice Department and the Office of Management and Budget.

After overwhelming opposition from businesses, other employers and a tremendous investment of resources by the U.S. Chamber of Commerce, supporters of the so-called "Card Check" bill have conceded defeat with respect to the most controversial provision of the Employee Free Choice Act (EFCA) and abandoned the idea of trying to convert the National Labor Relations Act's (NLRA) current secret ballot system to one where a simple majority of eligible employees' signing union cards would establish a union. It became apparent in late spring that certain moderate Democratic Senators would not vote in favor of the card-check provision, making it impossible for the EFCA's supporters to acquire the filibuster-proof 60 votes necessary to pass the bill in its current form.

As is becoming more apparent everyday, employers are facing a new government culture. Agencies like the U.S. Equal Employment Opportunity Commission (EEOC) now have more resources at their disposal, and these agencies are becoming more proactive in addressing employment-related issues. On July 15, 2009, the EEOC issued a technical assistance document entitled, "Understanding Waivers of Discrimination Claims in Employee Severance Agreements." Remarkably, this document is not intended to provide guidance to employers on how to comply with various employment-related laws, but rather it is intended to provide guidance to employees who may receive such an agreement.

As part of the Obama administration's commitment to accountability in spending under the American Recovery and Reinvestment Act (ARRA), the federal Office of Federal Contract Compliance Programs (OFCCP) will be tracking its ARRA-related and non-ARRA-related enforcement activities separately and aggressively auditing recipients of ARRA funds.

Cleveland partner Patricia Poole authored an article, "Upholding OSHA's Multi-Employer Citation Policy," which was published as the exclusive guest column in the July 24, 2009, edition of Employment Law360.

Miami Valley Hospital (Miami Valley) and an air ambulance service which furnished pilots and mechanics for the hospital’s air ambulance operation were held jointly liable by the U.S. Department of Labor’s Administrative Review Board (Board) for violating the whistleblower protection provisions of the Aviation Investment and Reform Act for the 21st Century (AIR 21) when they fired an air ambulance pilot as a result of his safety-related complaints to a supervisor and the Federal Aviation Administration (FAA). Evans v. Miami Valley Hospital, DOL ARB, No. 07-118 (June 30, 2009). The Board ordered the pilot reinstated with back pay and awarded him $100,000 for the emotional distress resulting from his termination.

The federal minimum wage increased to $7.25 per hour on July 24, 2009. Many states also have minimum wage laws. Generally, in cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum. The accompanying chart surveys hourly minimum wages in effect for all 50 states and the District of Columbia as of July 24.

Starting next month, OSHA will begin its new National Emphasis Program (NEP) on injury and illness recordkeeping with recordkeeping inspections being conducted at employers’ establishments with low incidence rates in historically high rate industries, as well as inspections of a sample of construction firms. The NEP was developed after last year’s Congressional hearings on the perceived problem of injury and illness underreporting, and is consistent with Secretary of Labor Hilda Solis’ more enforcement-oriented approach to occupational safety and health. The inspections will be conducted over the next twelve months, and it is anticipated that the NEP will be expanded after the initial data is analyzed. Although the NEP is limited to states under federal OSHA’s jurisdiction, state plan OSHA programs are encouraged to conduct their own recordkeeping enforcement initiatives.

There have been two recent announcements that will be of interest to corporate counsel and Human Resources professionals.

The Office of Management and Budget (OMB) approval for the new I-9 Employment Eligibility Verification form lists an expiration date of 06/30/2009 in the upper right-hand corner. U.S. Citizenship and Immigration Services (USCIS) issued an update on June 26 requesting that OMB extend the document approval and stating that the form may continue to be used by employers until such approval is secured.

At the same time the Department of Homeland Security (DHS) announced that the agency would follow-through on the federal contractor/E-Verify regulation, Secretary Janet Napolitano stated that DHS would be rescinding the Social Security “No-Match” regulation (see the DHS’ press release). Pro-business and pro-labor groups alike applauded the action. However, the end of the “No-Match” regulation resolves nothing for employers and seemingly returns us to a lack of clarity for employers on what steps to take when a No-Match letter is received.

On July 8, the Department of Homeland Security (DHS) issued a press release announcing the agency’s support for the delayed regulation that would require certain federal contractors to use E-Verify to check employee work authorization. After four delays in implementation, DHS Secretary Janet Napolitano confirmed the regulation will indeed become effective on September 8. Simultaneously, Secretary Napolitano announced DHS’ intention to rescind the Social Security No-Match rule, which has been on-hold for nearly two years due to litigation contesting the validity of the rule (see the article in this issue regarding the No-Match rule).

In light of the recent I-9 audit blitz conducted by U.S. Immigration and Customs Enforcement (ICE) on July 1, a review of what to expect during an I-9 audit might be instructive.

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

Religious discrimination claims have steadily increased over the past 15 years.

Earlier this year, Ford & Harrison began our series NLRB Update, analyzing 10 critical decisions issued by the Bush-appointed National Labor Relations Board ("NLRB" or "Board") that likely will be overturned in the next few years if reconsidered by an Obama-appointed Board now chaired by Wilma Liebman. Member Liebman's new position as Board Chair is particularly important, as she issued dissents in most of the critical pro-employer decisions issued under the Bush-era labor Board, challenging the reasoning and conclusions reached by the Board majority. Careful analysis of Liebman's dissenting opinions in these major decisions provides a legal roadmap – charting the likely course the Liebman Board will take if it is able to reconsider these issues.

A proposed class action filed in a Florida federal district court on June 25 underlines the importance of following appropriate procedures and having consistent documentation and employee communications when designating an investment fund as the qualified default investment alternative (QDIA) for 401(k) or other retirement plans.

On July 24th, the federal minimum wage will increase from $6.55 an hour to $7.25 an hour, an increase of 10.7%. The impact on employers will be greatest in 29 states that currently have minimum wage requirements below the new federal minimum. Seven states already have laws mandating $7.25 minimum hourly pay, while 14 states and Washington, D.C., exceed the new minimum. Employers are required to pay whichever is the highest: Federal or state.

The America’s Affordable Health Choices Act of 2009 (H.R. 3200) (the “Bill”) was introduced jointly by the House of Representatives’ Energy & Commerce, Education & Labor, and Ways & Means Committees on July 14, 2009. The Bill was subsequently “marked up” by Chairman Rangel of the Ways & Means Committee on July 15, 2009. The Bill’s stated purpose is “to provide affordable, quality health care for all Americans and reduce the growth in health care spending.” While our Healthcare Team has highlighted the Bill’s significant proposed changes that would directly affect healthcare providers in the July 23, 2009, issue of the Health Law Update, this Alert is meant to summarize only the potential revisions to the Internal Revenue Code (the “Code”) which were proposed in order to help fund the many healthcare reform measures.

On July 16, 2009, the U.S. Department of the Treasury (Treasury) presented to Congress two separate pieces of proposed legislation related to executive compensation: a shareholder "say-on-pay" proposal and a proposal designed to ensure that compensation committees of corporate boards of directors are independent. These two proposals are part of the Investor Protection Act of 2009 and if adopted would be implemented through rulemaking by the Securities and Exchange Commission (SEC). We will monitor this as it proceeds through Congress and present the following summary of Treasury's proposals

With the inauguration of a new President, Americans wondered what the Obama administration would do regarding the very badly broken immigration system in the United States. Would large work force raids continue? Would the estimated twelve million undocumented workers continue to be apprehended one by one and put into detention facilities, as they had in increasing numbers during the Bush administration? Or would this new administration push first for comprehensive immigration reform that includes a methodology for making undocumented workers legal? In early summer, 2009, the answer came when both the administration and Congress moved aggressively to focus on increased immigration enforcement in the workplace, with Immigration and Customs Enforcement (ICE) announcing that it would be auditing an unprecedented number of businesses. This renewed focus on compliance is occurring in advance of immigration reform, which means that employers in certain vulnerable sectors will be at risk of losing significant portions of their workforce. Additionally, ALL employers have now been forced to realize the critical need for taking immigration compliance seriously.

While healthcare reform, the economy, and the confirmation hearings for Supreme Court Nominee Sonia Sotomayor have dominated the news, labor unions, with a cadre of supporters in the U.S. Senate, have been quietly working on a compromise to steer labor's number one legislative agenda through the Senate.

On Friday, July 24, the last stage of the "phased-in" minimum wage will go into effect, bringing the federal minimum wage to $7.25 an hour.

As part of the Obama administration's commitment to accountability in spending under the American Recovery and Reinvestment Act (ARRA), the federal Office of Federal Contract Compliance Programs (OFCCP) will be tracking its ARRA-related and non-ARRA-related enforcement activities separately and aggressively auditing recipients of ARRA funds.

This is a reminder that, effective this Friday, July 24, 2009, the federal minimum wage rate for covered non-exempt employees will increase from $6.55 per hour to $7.25 per hour. This is the third and final increase required by the 2007 Fair Minimum Wage Act, which amended the federal Fair Labor Standards Act (FLSA).

The Senate plans to drop the “card check” provision from the Employee Free Choice Act (“EFCA”), a bill that seeks to alter the landscape of American labor law by making it easier for unions to organize workers, according to late reports from Washington, D.C. Despite a seemingly “filibuster proof” Democratic Senate majority – 60 of the 100 Senate seats – a handful of Democratic senators announced recently that they would not support EFCA as initially proposed because the “card check” provision effectively eliminated workers’ rights to vote by secret ballot on unionization. At least one of the dissenting Democrats, Senator Arlen Specter, while still a Republican, also indicated dissatisfaction with the mandatory arbitration provisions of the proposed legislation.

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 and Executive Compensation: Decisions and Next Steps

The question of how the new Obama administration will handle worksite enforcement has finally been answered, and the answer is very aggressive. On July 1st U.S. Immigration and Customs Enforcement (ICE) announced the start of a new I-9 audit initiative by issuing Notices of Inspection (NOI) to 652 businesses. The companies have been instructed that they have three (3) days to present the I-9 forms for active and terminated employees to ICE so it can determine whether the companies are complying with the Immigration Reform and Control Act of 1986 (IRCA).

Congress and federal regulatory agencies have been busy enacting legislation and proffering guidance which implements many new requirements for group health and welfare benefit plans. Many of the changes will require thoughtful action on the part of administrators and sponsors of group health and welfare benefit plans.

President Barack Obama's designation of Wilma Liebman as Chairman of the National Labor Relations Board ("the Board" or NLRB), as well as the likely confirmation of nominees Craig Becker, Mark Pearce and Brian Hayes as a "package," will result in the Board being at full strength with five members for the first time in years.

USCIS has posted on its web site the scripts apparently used by non-governmental, contracted customer service center workers in answering inquiries by the public to USCIS' 800 number (800-375-5283). Another victory for transparency in government.

Ranting on the Internet about one's employer has become commonplace. When complaints are posted on a publicly accessible Internet page, employers have the same right as anyone in the general public to access the posting, and, except in limited circumstances, can take adverse action based on the posting's content.

Earlier this year, we began our series NLRB Update, analyzing 10 critical decisions issued by the Bush-appointed National Labor Relations Board ("NLRB" or "Board") that likely will be overturned in the next few years if reconsidered by an Obama-appointed Board now chaired by Wilma Liebman. In most of the critical Bush-era Labor Board decisions that favored employers, then Board member Liebman dissented, challenging the reasoning and conclusions reached by the Board majority. Careful analysis of Liebman's dissenting opinions in these major decisions provides a legal roadmap – charting the likely course the Liebman Board will take if it is able to reconsider these issues. Consequently, we can expect significant changes in certain labor policy areas going forward.

Department of Homeland Security (DHS) Secretary Janet Napolitano recently announced the Obama administration's plans as they relate to two regulations affecting employment eligibility verification. The administration fully reviewed the E-Verify federal contractor rule, originally signed as an executive order by former President Bush in 2008, and has now decided to move forward with its full implementation. The E-Verify program is currently due to sunset at the end of the fiscal year on September 30, 2009, although it is expected to be extended under the final version of the DHS appropriations bill. The rule itself is actually an amendment to the Federal Acquisition Regulation (FAR), which governs the federal government's acquisition process. Beginning September 8, 2009, the rule requires certain federal contractors and their subcontractors to begin using the E-Verify program to electronically verify the work eligibility of both newly hired employees and existing employees assigned to work on government contracts. More information on the E-Verify program and the federal contractor rule can be found in our previous advisory on this topic. The amendment to the FAR is currently the subject of federal litigation, and it's not clear at this time how the DHS' announcement could affect those proceedings.

With many employers engaging in workforce reductions and paying out record amounts of severance benefi ts, it is essential that employers examine the severance pay arrangements in place and determine if they are covered by ERISA, and, if not, whether they should be covered.

Supreme Court Update: Three Recent Decisions Affect Employers.

Reducing Immigration-Related Liabilities.

With ever-expanding workloads and the pressure to make decisions quickly, senior managers and human resources personnel may fi nd it diffi cult to conduct independent reviews of personnel decisions recommended or initiated by fi rst-line managers. Although tempting, giving in to the urge to “rubber-stamp” such recommendations can be costly. Using what some courts refer to as the “cat’s paw” theory, the fi rst-line supervisor’s biases can be attributed to the employer, even though the fi nal decision maker had no idea the employee at issue was a member of a protected class. Two recent decisions provide helpful guidance for employers seeking to minimize their risks in such situations.

During the past year, newsletter editor Aaron Gelb participated in a 3-week jury trial involving a number of claims under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).

After months of deliberation on two controversial worksite immigration enforcement regulations, the Department of Homeland Security has announced it will implement the Federal Contractor E-Verify regulation, but will withdraw the Social Security No-Match regulation.

Department of Homeland Security (DHS) Secretary Janet Napolitano today strengthened employment eligibility verification by announcing the Administration's support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The declaration came as Secretary Napolitano announced the Department's intention to rescind the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system.

The United States Supreme Court decided several significant employment law cases during the 2008 Term. The Court’s opinions addressed the validity of service fees charged by unions to nonmembers, the scope of Title VII’s anti-retaliation protections, spousal rights under ERISA benefit plans, waivers of Age Discrimination in Employment Act (ADEA) claims in collective bargaining agreements, retroactivity of the Pregnancy Discrimination Act (PDA), and an employee’s burden to prove age discrimination under the ADEA even when evidence exists that age was a motivating factor in the employer’s decision. There currently is one case on the docket for next Term, summarized below. (The Court may add more cases to the docket as the new Term approaches in October 2009).

The Immigration and Customs Enforcement (ICE) has announced that it will begin to investigate workplaces in all 50 states to identify employers who are hiring undocumented workers. Specifically on July 1, 2009, ICE launched a comprehensive audit initiative and issued Notices of Inspection (NOIs) to 652 businesses nationwide. ICE did not issue that many NOIs in all of 2008 ICE reported that the 652 businesses that were presented with a NOI on July 1 for a Form I-9 audit were apparently selected as a result of leads and information obtained through other investigative means. The names and locations of the businesses have not yet been released.

On July 8, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that the Department intends to implement a Bush-era rule mandating the use of E-Verify by federal contractors and subcontractors. Additionally, Secretary Napolitano announced that DHS is rescinding its controversial "No-Match" regulation.

Jackson Lewis has learned that the Office of Federal Contract Compliance Programs (OFCCP) will schedule compliance reviews of companies that have received funds tied to the American Recovery and Reinvestment Act of 2009 (“ARRA” or “stimulus package”). OFCCP announced that it intends to conduct at least 450 compliance audits on these companies by September 30, 2010.

Some complainants in Equal Employment Opportunity Commission’s closed cases that involved wage issues may receive new right-to-sue notices from the agency. The Commission seems to be reviewing these cases in response to the signing of the Lilly Ledbetter Fair Pay Act early this year. This is an important development for employers because Congress has provided that individuals may file a civil action within 90 days after the notice of right to sue is given by the EEOC. 29 C.F.R. § 1601.28(e)(1). Thus, a new right-to-sue notice statutorily confers on claimants an additional 90 days to commence suit in cases that would have been barred by the original statute of limitations.

DHS has announced that it will move ahead with requiring use of E-Verify for federal contractors effective September 8, 2009, but will retract the Bush Administration’s “safe harbor” regulation relating to Social Security “No-Match” letters. Some states continue to require E-Verify by state government contractors. DHS has shifted its focus from massive raids with deportations to targeted audits, fines and prosecutions of employers concerning I-9 compliance. DHS just announced audits of 652 employers. The Form I-9 version dated “2/2/09” and DHS “Handbook for Employers” have been in effect since April 3, 2009 and continue in effect despite the form’s stated expiration of 6/30/2009.

Under recently-enacted legislation, educational institutions may find themselves defending discrimination claims arising from tenure or other types of employment decisions made long ago.

A school's right to control student membership in extracurricular activities was upheld recently as a North Carolina judge dismissed a breach-of-contract lawsuit brought by a collegiate golfer expelled from the school's team. The story received national media attention because it involved a prestigious school (Duke University), the son of a famous politician (Andrew Giuliani, son of former NYC Mayor and Presidential candidate Rudy Giuliani), and a set of facts and allegations more befitting a soap opera than a college campus. Here's a summary:

U.S. recessions since the oil crisis in the early 1970s each had their own special causes and victims, but they also had something in common: They were over relatively quickly. The current downturn, however, is deeper and already longer than any since World War II. This spells trouble for one especially vulnerable group -- managers in their 40s and early 50s. They tend to be more expensive than their younger counterparts; they may lack some of the high-tech savvy needed to succeed in a more efficient workplace; and they face a downsized job market that will stay that way much longer than usual.

On July 7, 2009, U.S. Citizenship and Immigration Services (USCIS) released updated information on H-1B non-immigrant visa petitions for Fiscal Year 2010 (beginning October 1, 2009), stating that as of July 3, 2009, it has received only 45,000 of the 65,000 H-1B non-immigrant visa petitions needed to meet the H-1B regular cap, but almost all of the visa petitions needed to meet the U.S. master’s degree cap of 20,000.

On Wednesday, July 8, 2009, Baker Hostetler's Healthcare Team presented the webinar, "Healthcare: Preparing for the Impact of the Employee Free Choice Act." With the passage of the Employee Free Choice Act (EFCA) a real possibility, what will the impact be on the Healthcare industry? What action can be taken to prepare before the Bill passes?

On October 9, 2009, an important new law affecting employer-sponsored group health plans will become effective. The new law is known as “Michelle’s Law” (Pub. L. No. 110-381) and expands employers’ coverage and notice obligations for eligible college students. You should begin preparing now to meet these obligations.

If your company receives stimulus funds from the U.S. government, you may become a federal contractor, subject to the affirmative action and other compliance requirements of the U.S. Office of Federal Contract Compliance Programs.

On July 8, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that the Administration intends to abandon the "no match" rule and instead promote use of E-Verify. Secretary Napolitano stated that the Obama administration will endorse and support the federal contractor E-Verify regulation and continue efforts to improve the E-Verify system. This announcement is consistent with the Administration's recent emphasis upon worksite enforcement and employment eligibility verification. It is also not surprising that the Administration is willing to give up on the "no match" regulation that organized labor has so vigorously attacked.

Last week, we began our series NLRB Watch – which will analyze 10 critical decisions issued by the Bush-appointed National Labor Relations Board ("NLRB" or "Board") that likely will be overturned in the next few years if reconsidered by an Obama-appointed Board now chaired by Wilma Liebman. In most of the critical Bush-era decisions that favored employers, then Board member Liebman dissented, challenging the reasoning and conclusions reached by the Board majority. Careful analysis of Liebman's dissenting opinions in these major decisions provides a legal roadmap – charting the likely course the Liebman Board will take if it is able to reconsider these issues.

U.S. Immigration and Customs Enforcement (ICE) announced yesterday that 652 businesses nationwide have been targeted for in-person inspection of I-9 employment verification forms. Upon initial notification of the inspection, targeted employers are given a very short time frame, as little as three days, to prepare for a meeting with federal officials in which the company's Form I-9 records will be reviewed. Some employers have already begun receiving these audit notices.

U.S. Immigration and Customs Enforcement (ICE) announced on July 1, 2009, that 652 businesses nationwide will be receiving Notices of Inspection. The notices alert business owners that ICE will be inspecting the hiring records of these employers to determine whether or not they are complying with employment eligibility verification laws and regulations. In conjunction with strategies announced by the Obama administration to stem illegal immigration and focus on the employers who hire illegal workers, this new initiative illustrates ICE's increased focus on ensuring a legal workforce by holding employers accountable for their hiring practices.

Six hundred fifty-two employers throughout the country are receiving I-9 Notice of Inspections (NOIs) from the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) unit, the Government has announced. ICE is the federal agency responsible for investigating employers for immigration worksite violations. The NOIs require employers to provide copies to ICE of all of their employee Form I-9s and supporting documents by a specified date. In most instances, however, employers are given only three business days to present their records to the local ICE office.

Both houses of Congress have introduced bills that would amend drastically the Worker Adjustment and Retraining Notification Act, the federal law that requires employers to provide at least 60 calendar days’ advance written notice of “plant closings” and “mass layoffs.” The proposed “Federal Oversight, Reform, and Enforcement of the WARN Act” (“Forewarn Act”) not only would increase the number of employers subject to WARN and increase the number of entities and individuals who must receive WARN notices, but also would require employers to provide 90 days of WARN notices, instead of 60, prohibit waivers of WARN rights unless supervised by the U.S. Department of Labor or the attorney general of a state, and create an administrative enforcement scheme in addition to the existing judicial enforcement scheme, giving the DOL the authority to investigate and prosecute alleged WARN violations.

Citing concern that neither “Catholic health care, the labor movement, or the Church has been well served by the status-quo with all of its conflict and contention,” the United States Conference of Catholic Bishops (USCCB) has issued a set of nonbinding guidelines to Catholic health care employers in the United States.

The Pension Protection Act of 2006 creates new funding classifications for multi-employer pension plans, with the most seriously underfunded plans being classified as “critical” (or colloquially, “red zone”). The trustees of a red-zone plan must send participating employers a notice about the plan’s critical status including the employer’s obligation to start paying a surcharge on top of its regular contributions to the pension fund.

As Constangy reported in June 2008, the Veteran's Employment and Training Service adopted the VETS-100A Report for certain federal contractors and subcontractors. Contractors with government contracts entered into or modified on or after December 1, 2003, worth $100,000 or more are required to file the VETS-100A by September 30, 2009. The VETS-100 Report must still be filed by contractors with contracts entered into before December 1, 2003, valued at $25,000 or more. If contractors have contracts that fall within both categories, then they must file both the VETS-100 and the VETS-100A.

As if employers didn't have enough to worry about already, here comes the next big thing to fear: * others can tap and listen in on your cell phone calls; * they can know your exact location at any time your phone is on; and * they can access the speakerphone on your cell phone and listen to you when you are not even on the phone.

It's likely that President Obama's recent nomination of Judge Sonia Sotomayor will be approved by the Democratic-controlled U.S. Senate, unless some unknown skeleton appears from her closet.

As a reminder, pursuant to the 2007 amendments to the Fair Labor Standards Act, the federal minimum wage is set to increase from $6.55 per hour to $7.25 per hour effective Friday, July 24, 2009.

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.

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.

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.

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?

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.

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.

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.

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. USCIS will continue to accept new H-1B visa petitions and monitor the number of petitions received, since not all petitions can be approved.

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, 20