FW: Legal Briefs for HR #4 - 2009 (Con't)

-May 5, 2009-

6. Fair WARNing An amendment to the Worker Adjustment and Retraining Notification (WARN) Act was filed on April 23 in Congress.  If passed, H.R. 2077  would expand notice requirements to include mass layoffs that occur at more than one site of an employer (instead of focusing on the ?single site? analysis) and increase penalties from ?back pay? to ?two times the amount of back pay.?  You can always find full text and current status of federal bills at http://thomas.loc.gov.

7. More Fun with FMLA Two pending bills and a useful court case:
1. H.R. 2132 (filed April 28) ? Would expand scope of FMLA by allowing an eligible employee to use FMLA to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling or grandparent who has a serious health condition.
2. H.R. 2161 (filed April 29) ? Would nullify certain regulations and revise others; the intent is to undo many of the recent changes to FMLA regulations that favor employers (e.g., waiving FMLA rights as part of a settlement agreement, allowing an er to have direct contact with ee?s health care provider, denying or reducing attendance bonuses where ee took FMLA leave).  The bill is not posted on http://thomas.loc.gov yet but you can read about it on the website of the bill?s author, Rep. Carol Shea-Porter (NH) at www.house.gov. Click on ?Representatives? to navigate to her site.
3. While You Were Gone How many times have you reassigned existing staff or hired a temp to cover for an employee on leave, only to discover that the absent employee wasn?t so hot at doing his or her job?  If that leave was FMLA, you may have been reluctant to effect a discharge and risk an interference claim, but the 7th Circuit shows that it can be done.  In upholding summary judgment for the employer on a claim of FMLA retaliation, the Court said ?the fact that the leave permitted the employer to discover the problems cannot logically be a bar to the employer?s ability to fire the deficient employee? and the fact that he was fired on his first day back from leave did not establish that the leave was the cause of being fired.  Kevin Cracco v. Vitran Express, Inc. (7th Cir. 3-09).

More Contractor Conundrum Add Ohio to the list of states that have self-surveyed in order to measure the scope and impact of employers who misclassify their employees as independent contractors.  The result?  In a 2-18-09 report, the AG?s office estimates annual losses to state coffers of $100 million in unemployment comp payments, more than$510 million in workers? comp premiums and almost $180 million in state taxes.  Add to that tally more than $100 million lost by cities/towns  in local income tax revenues and $7.8 million lost by school districts. Those kinds of numbers are getting the attention of state legislators and agency administrators who are struggling with slashed budgets.  With no state income tax and a voluntary workers? comp system, Texas employers may be tempted to think compliance efforts won?t darken their doors, but the drumbeat has spread from state-level action to a bill filed last year in Congress (See LB4HR #10-2008) that would affect virtually all U.S. employers.  H.R. 6111 & S. 3648 are expected to be refiled in Congress shortly.

8. FAR Out Requirement The Federal Acquisition Regulation (FAR) is putting federal government contractors in an uncomfortable role, via language in the final rule for the Trafficking Victims Protection Act (TVPA).  The TVPA is meant to stem the tide of human trafficking, whether it be for slavery, sexual exploitation or similar reasons.  The final rule says neither contractors nor their employees are to engage in human trafficking or use forced labor, during the term of the government contract and an employee?s off-the-clock lapse in judgment, shall we say, may result in revocation of said contract.  During the comment period, it was argued that surely the FAR did not mean to encompass employee conduct that occurs after hours and/or off the clock, but FAR nipped that view in the bud by stating that the statute would be inadequately implemented if that interpretation were true ?since employee violations are more likely to occur after working hours.?  To top it off, there is no exclusion for commercial sex acts that are obtained lawfully (think NV brothels) and the final rule requires employers to self-report any violations.  For materials on this touchy subject, go to www.state.gov/g/tip/c26189.htm.

9. For the Birds ? If you like being ?tweeted? and want breaking news on employment law changes, follow me on Twitter.  I?m at @amross. 

Until next time,

Audrey E. Mross
Labor & Employment Attorney
Munck Carter LLP
600 Banner Place
12770 Coit Road
Dallas, TX  75251
 
972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)
amross@munckcarter.com
www.munckcarter.com

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