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Posted on June 16, 2011August 9, 2018

EEOC Issues Final Regulations for ADA Amendments Act

The Equal Employment Opportunity Commission has issued final regulations implementing the ADA Amendments Act of 2008. The act, which became effective Jan. 1, 2009, made significant changes to the definition of “disability” under the Americans with Disabilities Act.


The EEOC’s final regulations broadly construe the variety of physical and mental conditions that qualify for such coverage. The regulations indicate a shift in the focus in ADA cases to whether employers have complied with their obligations and whether discrimination has occurred, as opposed to whether an individual meets the definition of “disability.”


Impairments that will qualify as covered disabilities in “virtually all cases” include autism; blindness; bipolar disorder; cancer; cerebral palsy; deafness; diabetes; HIV infection; intellectual disability; major depressive disorder; missing limbs; multiple sclerosis; muscular dystrophy; and schizophrenia.


The final regulations also expand the list of “major life activities” and “major bodily functions” that can be impaired as “nonexhaustive.” This means that the EEOC may recognize additional examples of major life activities, including, for example, “interacting with others,” “reaching” and “sitting.” The regulations further broadened the definition of the impairments that “substantially limit” an individual. For example, short-term impairments (less than six months in duration), episodic impairments and/or impairments in remission qualify as substantially limiting.


Impact: Employers need to understand and abide by these major changes set forth in the EEOC’s final regulations. For more information, go to eeoc.gov.


Workforce Management, June 2011, p. 12 — Subscribe Now!


The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Posted on June 9, 2011August 9, 2018

Supreme Court Finds Devil’s in the Details of Summary Plan Descriptions

About 27,000 Cigna Corp. employees thought they were getting a sweet deal in 1998 when they read the terms in a summary plan description of their newly converted retirement plan from a traditional defined benefit pension to a cash balance plan.

But the U.S. Supreme Court recently reversed a lower court’s decision involving the company and its workers, saying even though statements made in the summary of the plan documents may be misleading, participants can’t sue companies based on that information. The terms in the plan document are what determine plan benefits.

The case, Cigna Corp. v. Amara, is significant because the high court in its May ruling said summary plan descriptions can’t be held to the same level of reliability as the plan document. While plan sponsors may find a bit of comfort in that, the high court also said the district court could award damages if employees demonstrated they were harmed by inconsistencies in communication.

Employers need to make sure the summaries match what’s in the plan document, experts agree.

“Employers are going to need to be a lot more careful in making sure summary plan descriptions are more thorough,” says Andrew Volk, partner at Seattle-based law firm Hagens Berman.

In 1998, Cigna told its employees through various forms of communications—which included the summary plan description—that the balance in their new plan would be the combination of their benefit under the old plan plus the new benefit earned in the cash balance plan.

But the complete plan document conflicted with the summary plan description, saying participants with earnings through the old plan would get the greater of whichever balance ended up being larger at the end of their employment: their traditional formula benefit as of Jan. 1, 1998, or what they would accumulate under the new cash balance plan.

In 2001, Cigna workers filed a class-action lawsuit in U.S. District Court for the District of Connecticut in Hartford, saying the Philadelphia-based health insurance company gave misleading information through the summary plan description and other communications to employees about the new retirement plan.

The district court and later the U.S. Court of Appeals for the 2nd Circuit in New York City favored the employees’ argument. Just last month in an 8-0 decision, the Supreme Court reversed the lower court rulings, saying that the summary plan description can’t replace the terms found in the actual plan document. The high court also sent the case back to the district court to decide whether participants were actually harmed by the faulty information.

“We believe that, in order to obtain relief … a plan participant or beneficiary must show that the violation injured him or her,” Justice Stephen Breyer wrote in the opinion for the court.

Adam Greetis, a partner at Seyfarth Shaw in Chicago, said plan documents can be complicated, so it’s important to be clear and consistent with the summary that goes out to participants. Drafts of the summary plan description should be compared line by line to make sure there are no mistakes.

“Review documents for consistency,” Greetis said, speaking during a webinar presented by the Human Resources Management Association of Chicago. “Don’t even get near this error.”

Summary plan descriptions are usually distributed when employees enroll and are the road map workers use to understand benefits. By law, these documents need to be updated every five years if changes are made, or every 10 years if there is no change. The plan document, by law, needs to be provided if an employee asks for it.

The high court decision should encourage employers to make sure provisions in the summary plan descriptions match the plan document, says Kim Buckey, practice lead, summary plan description services, for Woburn, Massachusetts-based consulting firm HighRoads.

“It points out the need for accurate communication and to make sure whoever is communicating your plan understands benefits very well and communicates very well,” she says. “Focus on the benefits and what this means to the employee.”

Buckey adds employers might go so far as using employee focus groups, to make sure workers understand the content in a summary plan description before rolling it out.

“This way you can make sure [summary plan descriptions] are understandable and readable,” she says.

Experts agree it is important to tell the truth about benefits. One of Cigna’s communications said the company would not realize any cost savings, when in fact it did save the plan $10 million annually, according to the high court’s opinion.

“When you are trying to communicate with participants, make sure it is balanced, and not selling,” says Bernard Kearse, principal at Atlanta-based consulting firm ERISA Pros. A good summary plan description “will point out exceptions and tell the plan participant to go to the plan document for more information.”

Workforce Management Online, June 2011 — Register Now!

Posted on June 9, 2011August 9, 2018

Immigration Law Ruling Raises Employer Fears

A U.S. Supreme Court decision upholding an Arizona immigration law could result in employers facing a patchwork of onerous anti-immigration laws unless Congress decides to take action, attorneys say.


Furthermore, the court’s 5-3 decision in late May in Chamber of Commerce of the United States of America et al. v. Michael B. Whiting et al. gives implicit approval to a sometimes unreliable federal immigration verification system, which also can cause problems for employers, observers say.


In its ruling, the high court upheld lower court rulings that found that Arizona’s 2007 Legal Arizona Workers Act is not pre-empted by federal law.


Under the Arizona law, employers that violate the law a second time by knowingly hiring an illegal immigrant can lose their business license.


The Arizona law requires that after hiring an employee, all Arizona employers must verify their employment eligibility using E-Verify, according to the ruling.


Congress established E-Verify, an Internet-based system under which an employer can verify an employee’s work authorization status, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.


In ruling on the Arizona law, the high court said the Immigration Reform and Control Act of 1986 expressly pre-empts “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment unauthorized aliens.”


According to the opinion, the U.S. Chamber of Commerce had argued “that the Arizona law’s provisions allowing the suspension and revocation of business licenses for employing unauthorized aliens were both expressly and impliedly pre-empted by federal immigration law, and that the mandatory use of E-Verify was impliedly pre-empted.”


But the Supreme Court disagreed. The majority said the Washington-based Chamber of Commerce “and the United States as amicus argue the Arizona law is not a ‘licensing’ law because it operates only to suspend and revoke licenses rather than to grant them.” However, the high court ruled, “this is contrary to the definition that Congress itself has codified. … It is also contrary to common sense. There is no basis in law, fact or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses (is) something else altogether.”


Arizona’s procedures “simply implement the sanctions that Congress expressly allowed Arizona to pursue through licensing laws,” the majority ruled, saying the state “went the extra mile in ensuring that its law closely tracks [the Immigration Reform and Control Act’s] provisions in all material definitions.”


Consistent with law
On the E-Verify issue, the high court ruled that Arizona’s requirement that employers use it “is entirely consistent with the federal law. … In fact, the federal government has consistently expanded and encouraged the use of E-Verify,” the high court ruled.


The Chamber of Commerce and Supreme Court Justice Stephen Breyer, in his dissenting opinion, argued that employers “will err on the side of discrimination rather than risk the ‘business death penalty’ by ‘hiring unauthorized workers.’ ”


However, the majority, in the opinion written by Chief Justice John Roberts, responded by saying license termination “is not an available sanction” for simply hiring unauthorized workers, and only “far more egregious violations of the law trigger that consequence. … An employer acting in good faith need have no fear of the sanctions.”


Justice Elena Kagan did not participate.


Reacting to the ruling, the Chamber of Commerce’s National Chamber Litigation Center issued a written statement that said, in part, the decision “does not give states or local governments a blank check to pass any and every immigration law,” which “continues to be predominantly a federal concern.”


David Selden, a partner with the Phoenix-based Cavanagh Law Firm who filed the original lawsuit on behalf of two Arizona business groups, said the decision in the immediate future “is going to result in a lot of states enacting a lot of different immigration laws with penalties against employers.”


In the longer term, it “will increase pressure on Congress to reform federal immigration laws, because having a patchwork of 50 different immigration laws in the different states is burdensome for large and small businesses to have to worry about complying with,” Selden said.


This is a “wake-up call” to Congress, said Elena Park, a member of Cozen O’Connor in West Conshohocken, Pennsylvania.


The decision “also shows the importance” of employers conducting self-audits and “by having comprehensive hiring practices so they’re prepared” if there is workforce enforcement action, Selden said.


E-Verify concerns
Observers say one major concern is the ruling’s implicit endorsement of E-Verify, which is a voluntary federal system, but mandated by Arizona law. Mississippi, Utah and Virginia also have such a mandate, according to the ruling.


John Doran, a shareholder with Greenberg Traurig in Phoenix, said, “The obligations that are required under Arizona law, including a mandatory use of E-Verify, create significant burdens for employers and, frankly, you wonder if all of a sudden, you have a national E-Verify mandate” as a result of the ruling.


Observers say the E-Verify system is flawed and prone to error. “It isn’t quite as effective as people might think it is,” said Craig Peterson, a lawyer with Dorsey & Whitney in Minneapolis.


“They do get it wrong, and when they do get it wrong, there are serious consequences,” said Robert Whitehill, a partner with Fox Rothschild in Pittsburgh, of the E-Verify system.


Furthermore, Whitehill said, “I think it’s entirely possible that [the ruling] will have a discriminatory effect.”


David Grunblatt, a partner with Proskauer Rose in Newark, New Jersey, said employers “will err on the side of compliance, even if it violates the rights of the individual, because their bigger fear” is of the state government.


Workforce Management Online, June 2011 — Register Now!

Posted on June 7, 2011August 9, 2018

EEOC Proposes Records Rule on Genetic Information Nondiscrimination Act

The Equal Employment Opportunity Commission has issued a proposed rule under which employers would be required to maintain all relevant employment and personnel records until any charge filed under the Genetic Information Nondiscrimination Act is resolved.


The 2008 law prohibits employment discrimination based on genetic information.
The EEOC said that employers already have this record-keeping requirement with respect to Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.


The proposed regulation would extend those same requirements to records relevant to any GINA charge. The EEOC said there would be no increased burden due to the proposal because firms’ “systems for retaining employment records under Title VII and ADA records are already in place.”


The proposed regulation was published June 2 in the Federal Register. Comments, which are due by Aug. 1 can be submitted online at regulations.gov.


Separately, the EEOC said it plans to hold a public hearing at its headquarters June 8 at which panelists will discuss the appropriate use of disability leave as a reasonable accommodation, and complying with relevant regulations.


Additional information about the hearing, when available, will be posted at eeoc.gov/eeoc/meetings/index.cfm.  


Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.


 


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Posted on June 6, 2011August 9, 2018

Texas Governor Hails Frivolous Lawsuit Law as Employer-Friendly

Texas Gov. Rick Perry has signed into law a tort reform measure that institutes a “loser-pays” provision in lawsuits deemed to be frivolous.


The measure also allows a trial court to dismiss a lawsuit immediately if the case is not based in law or fact. In addition, it allows plaintiffs seeking less than $100,000 to seek an expedited civil action.


The new law “provides defendants and judges with a variety of tools that will cut down on frivolous claims in Texas,” Perry said in a written statement issued after he signed the measure into law this week.


“This important legislation will help make Texas that much more attractive to employers seeking to expand or relocate from countries all over the world by allowing them to spend less time in court and more time creating jobs,” the governor said.


Enactment of the law was the latest in series of tort reforms the Texas Legislature has approved in the past decade.  


Filed by Mark A. Hofmann of Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.


 


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Posted on May 31, 2011August 9, 2018

Supreme Court Upholds Arizona Immigration Law on Hiring

A U.S. Supreme Court decision upholding an Arizona immigration law could result in employers facing a patchwork of onerous, costly anti-immigration laws unless Congress decides to take action, attorneys say.


In its 5-3 decision May 26 in Chamber of Commerce of the United States of America et al. v. Michael B. Whiting et al., the court upheld lower court rulings that found that Arizona’s 2007 Legal Arizona Workers Act is not pre-empted by federal law.


The high court ruled that the Immigration Reform and Control Act of 1986 expressly pre-empts “any state or local law imposing civil or criminal sanctions [other than through licensing and similar laws] upon those who employ or recruit or refer for a fee for employment unauthorized aliens.”


Under the Arizona law, employers that intentionally violate the law a second time by knowingly hiring an illegal immigrant can lose their business license.


The Arizona law requires that after hiring an employee, all Arizona employers must verify their employment eligibility by using E-Verify, according to the opinion. Congress created E-Verify, an Internet-based system under which an employer can verify an employee’s work authorization status, in 1996.


The U.S. Chamber of Commerce had argued “that the Arizona law’s provisions allowing the suspension and revocation of business licenses for employing unauthorized aliens were both expressly and impliedly pre-empted by federal immigration law, and that the mandatory use of E-Verify was impliedly pre-empted,” according to the opinion.


But the Supreme Court disagreed. The majority opinion says the Washington-based Chamber of Commerce and the United States as amicus argue “because it operates only to suspend and revoke licenses rather than to grant them.” But “this is contrary to the definition that Congress itself has codified. … It is also contrary to common sense. There is no basis in law, fact or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses [is] something else altogether.”


Arizona’s laws “simply implement the sanctions that Congress expressly allowed Arizona to pursue through licensing laws,” the majority ruled, saying that Arizona “went the extra mile in ensuring its law closely tracks [the Immigration Reform and Control Act’s] provisions in all material definitions.”


On the E-Verify issue, the high court ruled that Arizona’s requirement that employers use it “is entirely consistent with the federal law. … In fact, the federal government has consistently expanded and encouraged the use of E-Verify.”


The opinion says the Chamber of Commerce and Justice Stephen Breyer, in his dissenting opinion, argue employers “will err on the side of discrimination rather than risk the ‘business death penalty’ by ‘hiring unauthorized workers.’ ”


The majority opinion says that license termination “is not an available sanction” for simply hiring unauthorized workers, but only for “far more egregious violations of the law.”


Chief Justice John Roberts wrote the majority opinion. Justice Elena Kagan did not participate.


Earlier this year, the Supreme Court declined to hear a case in which a Louisiana employer sought to argue that federal law prohibits paying state-mandated worker’s compensation benefits to an illegal immigrant.


Reacting to the Arizona ruling, the U.S. Chamber of Commerce’s National Chamber Litigation Center issued a written statement that said, in part, the decision “does not give states or local governments a blank check to pass any and every immigration law,” which “continues to be predominantly a federal concern.”  


Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.


 


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Posted on May 25, 2011August 9, 2018

Washington State Lawmakers OK Workers’ Comp Reforms

Washington state legislators approved a workers’ compensation reform bill that its backers say will save the state’s disability system $1.1 billion over the next four years.

The legislation passed the Washington state House on a 69-26 vote and the Senate on a 35-12 vote on May 23, wrapping a three-week effort to revamp the state’s system. Gov. Christine Gregoire, who backed the workers’ compensation reform effort, is expected to sign the bill into law.

“Among several provisions, the agreement reached today [May 23] promotes getting workers back on the job faster, freezes cost of living allowances to ensure parity with others and provides the option of a structured claims settlement,”Gregoire said in a written statement.

The bill also would help Washington avoid a double-digit workers’ compensation rate increase, which backers say will help stimulate the state’s job market.

“Although we hoped for stronger reforms, I think [this bill] will begin to fix our broken workers’ compensation system, avoid double-digit rate increases and create an economic climate that gives employers the certainty they need to create jobs,” House Republican leader Rep. Richard DeBolt, R-Chehalis, said in a written statement.

A spokeswoman for the Washington State Labor & Industries Department, which provides workers’ compensation insurance for more than 168,000 employers and 2.5 million workers, said the agency still was examining the legislation but overall is “excited about the changes” that will give it “the tools to reduce costs for employers.”

The Olympia-based Association of Washington Business also lauded the legislation but said more work remains to be done.

“Washington state’s workers’ compensation system cannot continue indefinitely in its current state, even with the changes reflected in this agreement,” association president Don Brunell said in a written statement. “That is a conversation that will need to continue after the gavel falls this spring.”  

Filed by Jeff Casale of Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

 

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Posted on May 25, 2011August 9, 2018

Firing of Tweeting Newspaper Reporter Upheld By NLRB

An Arizona newspaper had the legal right to fire a reporter over the content of messages he was posting to Twitter, a federal labor board has found.


In September 2010, the Tucson, Arizona-based Arizona Daily Star fired its crime and public safety reporter for repeatedly publishing what the paper deemed to be “unprofessional and inappropriate tweets” via his Twitter account, including references to his position at the paper and links to its website, according to an advisory memo the National Labor Relations Board issued last month.


The board found that the unnamed reporter’s termination did not violate a provision of the National Labor Relations Act that protects communications by employees as long as they relate to—or seek to involve other employees in a discussion of—working conditions or employment terms.


According to the board’s memo, in January or February 2010, the reporter posted a snide remark about the Daily Star’s copy editors concerning headlines that had run in the sports section. The paper’s editors reprimanded the reporter and told him he was prohibited from “airing his grievances or commenting about the Daily Star” in any public setting.


Several months later in 2010, the reporter posted several messages related to his work as a crime reporter, including:
• Aug. 27: “You stay homicidal, Tucson. See Star Net for the bloody deets.”
• Aug. 30: “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”
• Sept. 10: “Suggestion for new Tucson-area theme song: Droening [sic] pool’s ‘let the bodies hit the floor.’ ”
• Sept. 10: “I’d root for daily death if it always happened in close proximity to Gus Balon’s.”
• Sept. 10: “Hope everyone’s having a good Homicide Friday, as one Tucson police officer called it.”


On Sept. 21, 2010, a local television news station posted a tweet containing a misspelled word, which the reporter lampooned in a tweet of his own, calling the station’s staff “stupid TV people.” The following day, the news station’s producer emailed the Daily Star’s staff to complain about the “unprofessional” tweet.


“What I take issue with is calling TV people stupid,” the station’s producer said in an email to the Daily Star’s reader advocate desk. “Clearly [he] is entitled to his opinion, but I feel since this particular account is affiliated with the Star, a tweet like that becomes unprofessional.”


The reporter was suspended and then fired on Sept. 30. In its termination letter, the paper’s publisher and editors said they “have no confidence that you can sustain our expectation of professional courtesy and mutual respect.”


The newspaper is owned by Davenport, Iowa-based Lee Enterprises Inc.


In its advisory memo declining to pursue the fired reporter’s complaint, the NLRB noted that even though the Daily Star did not have an internal policy specifically addressing social media communications, which could have made the reporter’s termination illegal had he complained about working conditions or employment terms, its actions were not illegal because the messages themselves were not protected by the law.  


Filed by Matt Dunning of Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.


 


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Posted on May 10, 2011August 9, 2018

Chubb Unit Settles Discrimination, Retaliation Lawsuit

A Chubb Corp. unit has agreed to pay $110,000 to settle a case in which the Equal Employment Opportunity Commission accused it of discrimination and retaliation against a Hmong employee seeking promotion to underwriter.


In a written statement released May 4, the EEOC said Federal Insurance Co., a unit of Warren, New Jersey-based Chubb, refused to promote Kong Chee Vang in its Milwaukee underwriting office because she is Asian.


The EEOC alleged that Chubb failed to stop its managers from using stereotypes and negative assumptions based on race when Vang sought promotion to underwriter in 2006 and 2007.


The EEOC further alleged that after Federal Insurance rejected promoting her in 2006 and Vang filed a complaint with the EEOC accusing the insurer of discrimination, Chubb retaliated against her by rejecting her for a second promotion in 2007.


The parties reached an agreement on the case, which was brought in 2010, before a scheduled mediation, resulting in a consent decree that a federal judge in Milwaukee approved on May 3.


Vang, whose settlement reflects $60,000 in back wages and $50,000 in compensatory damages for emotional distress, continues to work for Chubb, according to the EEOC.


A Chubb spokesman could not be reached for comment.  


Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.


 


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Posted on April 12, 2011August 9, 2018

Bloggers Hit Huffington Post With Labor Lawsuit

A class-action lawsuit filed April 12 in federal court in New York City alleges that as many as 9,000 unpaid bloggers for the Huffington Post were unjustly denied compensation despite contributing content that helped the liberal-leaning website’s price tag soar to $315 million.


Jonathan Tasini, a labor activist, writer and occasional political candidate is the named plaintiff in the lawsuit, which seeks at least $105 million in damages from HuffingtonPost.com, Huffington Post co-founders Arianna Huffington and Kenneth Lerer, and AOL. In February, AOL bought the Huffington Post for an estimated $315 million.


“Bloggers have essentially been turned into the modern-day slaves on Arianna Huffington’s plantation,” said Tasini, who wrote 216 entries on the site, beginning in December 2005. “Huffington Post is nothing without the bloggers who create the content.”


Tasini was also the lead plaintiff in a lawsuit against the New York Times in which the Supreme Court ruled in 2001 that the paper could not license the work of freelancers to electronic databases without the writers’ permission.


In a written statement, an AOL spokesman said that the lawsuit was “wholly without merit.” He said that Huffington Post’s bloggers use the site “to connect and help their work be seen by as many people as possible. It’s the same reason people go on TV shows: to promote their views and ideas.”


Huffington Post was founded in May of 2005 by Huffington and Lerer, and, according to the complaint, had 26 million unique visitors per month as of this past January.


In addition to the lawsuit, Tasini said he has teamed up with the Newspaper Guild and National Writers Union in an attempt to get bloggers to stop writing for the Huffington Post.


Tasini will release an open letter on April 13 demanding progressive bloggers stop posting on the site. And he said pickets outside Arianna Huffington’s home are planned.


“Anybody blogging for Huffington Post is a scab, producing content for someone who is attacking workers,” he said.


Jesse Strauss, a lawyer for the plaintiffs, said that the key legal question in the case is putting a value on the contributions of the unpaid bloggers. He said the case goes beyond Huffington Post, and that he was looking to have a “standard set about how bloggers should be compensated.”  


Filed by Daniel Massey of Crain’s New York Business, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


 


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