83A? AD3A? ADTripleA? What in the world?

Many of you would argue that your lawyer's favorite soup is alphabet, because that's the only way we know to reference laws. FMLA. ADA. FLSA. USERRA. NDAA. BINGO. (Just kidding.)

By now, you've either read or heard about GINA. It appeared that GINA was going to be the biggest piece of legislation to impact employers this year. Not quite.

On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act, or the ADAAA. As you can see, this acronym doesn't exactly roll off the tongue. My struggle thus far, aside from the substantive aspects of the Act, is figuring out how to reference it in my speeches and presentations. I'm still working on that.

But that is not of concern to you, as you have enough to handle with the substantive impact of the ADAAA. If you haven't heard about it, please don't consider this to be the sole source of your information. Google would probably refuse to give us enough space here to write about the ins-and-outs of the Act, much less how to address its impact on you. That said, here is a quick primer on the ADAAA:

1. It directs that the definition of "disability" should be broadly construed.
2. It no longer allows you to consider mitigating measures, such as medications, hearing aids, prosthetics, etc. that might be effectively addressing the impairment. The exception to this is that contacts and glasses may be considered when an employee's vision is impaired.
3. It provides 2 non-exhaustive lists of "major life activities" to be evaluated in the "substantially limits" context. The list includes activities such as thinking, concentrating, walking, eating and working. Unfortunately, the lists are not given in any context themselves, so it remains to be seen whether someone is substantially limited in, say, working, if they are unable to perform only one specific type of job, instead of working in general.

In the legislative history of the Act, Congress is reported as saying, "The question of whether an individual's impairment is a disability under the ADA should not require an extensive analysis."

Quizzically, the same Congress who passed GINA passed the ADAAA. Why is that puzzling? Well, consider what GINA addresses. It addresses the strides made in the medical field to identify genes and their impact on certain diseases, conditions, and likelihood of developing conditions in our lifetime. The ADAAA, by eliminating from consideration mitigation measures, such as transplants, drug research and bio-mechanical developments, refuses to acknowledge those strides in the medical field.

ADAAA becomes effective January 1, 2009, although the Equal Employment Opportunity Commission is unsure it will have published regulations addressing "substantially limits" before the turn of the year. Thus, you should be making appropriate adjustments to your policies and conducting training with your managers, supervisors, and HR specialists to best position your company to handle the changes that await.

Personal foul - 15-yard penalty - third and long

I am a Vol fan. I love them through thick and thin, and if you follow Tennessee football, you know we're in one of those thin (or maybe it's thick?) times.

I do not like losing, and I do not like to watch my teams lose. This is especially true when it appears that the tide might have been changed but for a few unnecessary actions. Case in point is the title to this blog. Again, if you follow the Vols, you probably guessed that the reference is to Arian Foster's personal foul penalty after ripping off a 9-yard run in the Vols' opening drive. That turned an easily-convertible 2nd-and-1 into a not-a-chance 3rd-and-16.

If you don't follow the Vols, you are perhaps asking, "What was the personal foul?" It was a shove of a Florida player by Foster at the end of his run. What's even worse is that Foster appeared to be retaliating against the Florida player for some antics during and immediately after Foster was tackled.

The Florida player started it.

Foster retaliated.

Only one team was penalized for its player's actions. And it wasn't the team that started the poor conduct.

It reminded me of one of the most dangerous risks for my clients. Often, it's the second "foul" that gets flagged. For many employers, the danger in discrimination charges and litigation rests not with the facts that led to the allegations, but with what happened once the allegations were made. Yes, I've blogged about it before, but it bears repeating: retaliation is the claim that sticks around even if the underlying harassment/discrimination claim is found meritless.

Let me beat the drum once more: train your managers and supervisors on the dangers of retaliation claims, and train your employees on the importance of refraining from retaliating.

“Anger is a condition in which the tongue works faster than the mind.”--Anonymous

'Sko Vols!

The Labor Day holiday means . . .

Football? Absolutely.

Leaves changing colors? Eventually.

Closer to the World Series? If you're into that.

Cooler weather for my runs? Thankfully.

But for most employers, the holiday means that time is running out to gather the data for filing your EEO-1 report. If you are a private employer and fit into one of these categories, then you are required to file your EEO-1 each year by September 30:

1. Covered by Title VII, with at least 100 employees (some exclusions may apply)
2. Covered by Title VII, with fewer than 100 employees but you are affiliated with or owned by a company when taken with your employee population would put you over the 100 employee threshold
3. Have federal contracts of at least $50,000 (including subcontracts and purchase orders) and at least 50 employees
4. Serve as a depository of Government funds in any amount
5. Are a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes.

As a reminder: your employees should be identifying themselves by the race/ethnicity codes modified in 2006 and first used with the EEO-1 last year. Additionally, you should be classifying your job groups by the Officials and Managers subsets that were modified also in 2006 and used in last year's EEO-1.

Happy counting!

Delantero! 앞! Dianteiro!

UPDATE: The LPGA has reconsidered its English-proficiency rule and withdrawn its planned implementation. Read more about it here. We'll watch for the LPGA's "revised plan" for its communications initiative and keep you informed.


Original post:
English-only rules have been pursued in several settings over the last few years. Employers who have attempted to implement those types of rules have generally been required to demonstrate that speaking English is a requirement of an employee's particular job.

Enter the LPGA. As you may have heard, the women's golf organization has implemented a rule that becomes effectively immediately but will not observe its enforcement provisions until 2009. The rule requires that LPGA tour members of at least 2 years be able to speak English "proficiently" and pass an oral evaluation. Failure to do so will result in a suspended membership.

The LPGA has explained that the rule is necessary in order to appeal to sponsors of the tour and to provide an enjoyable experience in pro-am tournaments (where professionals are expected to interact and entertain amateurs). As you might imagine, there is some push-back from the public.

Time will only tell if the rule will stand, be challenged, or resort to a non-issue. Nevertheless, it will be interesting to see how the LPGA manages this rule (assuming it is found to be enforceable) and how players (employees) respond.

Paid (sick) time off?

You've probably heard us talking about the movement to require businesses of any size to provide paid sick days for their employees. That movement appears to be gaining momentum, as twelve states now have active legislation for such leave. On the federal level, The Healthy Families Act has seen life in several sessions of Congress. Presently it is in committee for both Houses of Congress (i.e., it's in the first stages of the legislative process).

You can track your state's legislation and activity on this subject through the National Partnership for Women and Families. Regardless of your stance on paid sick time, the NPWF's website keeps tabs on the latest developments and provides easy monitoring of each state's and, in some cases, city's, status on the legislation.

FMLA amendment poster

Here is a link to the Department of Labor's poster for the Family and Medical Leave Act amendments:

http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf

No match letter? No big deal? No problem? Not sure? No kidding!

The Social Security Administration continues to produce the no-match letters employers dread receiving. You've seen it (if you haven't, knock on wood, dance on one foot, throw salt over your shoulder, or do anything else you believe continues your string of good luck)--the letter where the SSA politely informs you that a Social Security number for one of your employees as reported on Form W-2 does not match the records kept by the Social Security Administration. The letter requests you take steps to verify the information submitted by the employee and take "corrective steps" with SSA. The letter also sternly warns you not to take any adverse action based upon your receipt of the letter.

The U.S. Department of Justice's Office of Special Counsel ("OSC") recently issued guidance intended to help employers understand when the OSC may find reasonable cause that an employer discriminated against an employee during the verification process. Noteworthy is that the employee must be authorized to work in the U.S. before the OSC will consider the allegation of discrimination.

The OSC's guidance references the handling of no-match letters by employers, warning that employers who terminates before attempting to resolve the no-match issue with the employee or who treats employees differently based upon national origin or ethnicity (such as requiring more proof of authorization to work than is required of other employees) may be found to have engaged in discriminatory conduct.

The OSC guidance goes on to say that an employer who follows all of the Department of Homeland Security's safe harbor provisions and terminates due to an inability to resolve the no-match issue will not be found to have engaged in discriminatory conduct. That is, of course, assuming that the employee was treated no differently than other employees in the same or similar situations.

Interestingly, the safe harbor provisions that the OSC requires an employer to follow are still in limbo. You may recall that the original DHS "Safe-Harbor Procedures for Employers Who Receive a "No-Match" Letter" proposed rules were suspended from implementation by an injunction issued by a northern California federal district court in 2007. DHS and SSA issued a proposed modification to the proposed rules on March 26, 2008, meaning that no official "safe harbor" rule as referenced in the OSC guidance is actually in effect.

What's an employer to do? Certainly, investigate any no-match letter received. As you've heard us say before, be consistent in your methods of investigating, the time period allowed an employee to correct the situation, and the result for any employee who is unable to correct the situation. And keep your counsel on speed dial!