Transcript IPMA-HR Major City County Meeting

IPMA-HR Eastern Region
Conference
Washington Update
Tina Ott Chiappetta
Senior Director of Government Affairs
Fair Pay
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President Obama’s first law:
Lilly Ledbetter Fair Pay Act,
Overturns the Supreme Court’s opinion in Lilly
Ledbetter v. Goodyear Tire & Rubber Co. Inc. (2007)
Ledbetter worked for Goodyear for 19 years
 Raises based on performance reviews; Ledbetter had
several poor reviews
 At retirement Ledbetter earned $44,724 – lowest
paid male counterpart - $51,432
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Fair Pay
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Supreme Court ruled that no discriminatory act
had occurred within the 180 days prior to
Ledbetter filing the EEOC charge
The performance reviews and pay
determinations might have been discriminatory
but occurred prior to the 180 days and were
time barred
Fair Pay
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Law signed in January – retroactive to May 2007
Eliminates statutes of limitation in cases where
compensation is concerned- could include
terminations, demotions, denied promotions
and possibly pension/retirement plans
Creates new right of action for “aggrieved
persons” to file claim without filing an EEOC
charge
Fair Pay
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Applies to complaints brought under the ADA
and the ADEA as well as Title VII – broader
than gender discrimination
HR should review pay practices, examine
positions and parity, and develop record keeping
practices that allow for longer
storage
Mandatory Collective Bargaining for
Public Safety
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The Public Safety Employer-Employee
Cooperation Act reintroduced as H.R. 413 by
Representative Kildee (D-MI) & S. 1611 by
Senator Gregg (R-NH)
House bill has 133 co-sponsors
Senate bill has 9 co-sponsors
Bipartisan support
Expected to pass during this session of congress
Mandatory Collective Bargaining
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Requires states and localities to engage in
collective bargaining with police, fire and
emergency medical technicians
States that do not have collective bargaining
laws will have two years to enact one or fall
under the FLRA
The FLRA will develop regulations for those
states without laws
Mandatory Collective Bargaining
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A state will be exempt from the law if it
substantially provides the following:
1. The right of public safety officers to form and join
a union which may exclude
management/supervisory employees
 2. Requires employer to recognize the union (freely
chosen by majority of employees), to bargain, to
commit agreements to writing
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Mandatory Collective Bargaining
3. Provides the right to bargain over hours, wages
and terms and conditions of employment
 4. Makes available an interest impasse resolution
mechanism such as fact-finding, mediation,
arbitration etc.
 5. Requires enforcement through administrative
agencies and State courts
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Mandatory Collective Bargaining
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IPMA-HR has been a leader in the effort to oppose the
bills, including testifying before a House subcommittee
and meeting with House and Senate staff
Concerns include the federalization of collective
bargaining, increased costs, loss of local control over
expenditures for public safety , similar request for
unionization by other employee groups
FMLA
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One of the most important changes last year was
the expansion of the FMLA for military families
Two parts – one allows caregivers 26 weeks of
leave per 12 month
period to care for
injured/ill servicemember
FMLA
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Second part allows eligible employees up to 12
weeks of leave for “any qualifying exigency”
related to a son/daughter, spouse or parent’s call
to active duty
Became effective January 16, 2009
FMLA
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The Department of Labor also revised the
current regulations making many changes to the
notice and certification provisions
Department said it lacked the authority to
address the definition of a serious health
condition or the use of intermittent leave
Sample policies available on the IPMA-HR
Center website
Some of the changes to the
regulations include:
• Employers can provide perfect attendance
awards without running afoul of the FMLA
•Holidays occurring within a full week of
FMLA leave do not have to be considered
•HR can contact employee’s health provider
directly to clarify or authenticate a medical
certification (may not seek additional
information)
Intermittent leave issues
•Must be medically necessary and
certification must indicate that it is
medically necessary
•Increments same as used for other
types of leave as long as not more than
one hour. No need to account for time in
15 or 6 minute increments
•Employee must make a reasonable
effort to schedule leave so as not to
unduly disrupt employer’s operations
FMLA Expansion
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Bill introduced to repeal the regulations –
FMLA Restoration Act, H.R. 2161, introduced
April 29
FMLA expansion for all military families in
House appropriations bill
The Balancing Act of 2009 (H.R. 3047) has 34
cosponsors introduced June 2009, includes
many FMLA expansion bills, the Healthy
Families Act & Violence Against Women Act
ADA Amendments Act
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Effective January 1, 2009
More reasonable than the originally proposed
ADA Restoration Act
Expands the definition of a disability by
specifically rejecting several Supreme Court
opinions
ADA Amendments Act
Amendments lowers the bar an employee
must clear to establish ADA protection
 Overturns Toyota v. Williams where
Supreme Court said a disability must
prevent or severely restrict a major life
activity
 “Substantially limits” should be interpreted
broadly
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ADA Amendments Act
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ADAAA includes a non-exhaustive list of major life
activities and lists major bodily functions that would be
covered
Need only show one major life activity impacted – e.g.
the ability to think
Disabilities are considered in their untreated states –
e.g. if an individual successfully controls her diabetes
with insulin she may still be disabled under the law
ADA Amendments Act
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Expands the “regarded as” prong by allowing
claims whether or not the disability substantially
limits a major life activity
Employers do not have to accommodate under
the “regarded as” prong
EEOC expected to issue regulations
Genetic Nondiscrimination
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Genetic Information Nondiscrimination Act
(GINA) becomes effective November 2009
Prohibits employers from using genetic
information in making decisions related to any
terms, conditions, or privileges of employment
Bans the collection of genetic information
except in very limited circumstances
Genetic Nondiscrimination
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EEOC issued proposed regulations March 2
IPMA-HR submitted comments that IMLA and
the League of MN Cities joined
Urged clarity, examples and a definition of
“voluntary” wellness programs that does not
interfere with public sector programs
Offered solution to problem of post-offer
medical exams – doctors do not share
information with employers
Genetic Nondiscrimination
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Law prohibits retaliation and regulations
may also prohibit harassment
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Damages same as under Title VII
Cell Phone Policy
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Currently employer-provided cell phones are
considered a taxable benefit if used for personal calls.
Employees must track calls and pay for individual calls
as well as a pro rata share of the monthly fee
IRS changed its position and in a statement on June 16,
2009 asked Congress to change the law so that cell
phones are no longer taxable benefits
Healthy Families Act
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H.R. 2460, S. 1152 require employers with 15+
employees to provide a minimum of one hour of paid
sick leave for every 30 hours worked to a maximum of
56 hours per year
Issues include part-time employee benefits
Imposition of federal notification requirements
For example: no doctor’s note unless absence of 3 days
or more – commencement of leave cannot be delayed
Mandatory OSHA
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The “Protecting America’s Workers Act of
2009” (H.R. 2067) was considered before the
House Education and Labor Committee.
Would require OSHA coverage for all state and
local employees – currently about half the states
have opted to be covered by the federal
standards
IPMA-HR and other public sector organizations
are working to oppose this unfunded mandate.
Employment Nondiscrimination Act
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ENDA reintroduced in House & Senate (H.R. 3017, S.
1584)
Last session, ENDA passed the House by a vote of
235-184 not voted on in the Senate
Prohibits employers from discriminating against
individuals based on sexual orientation – provision
relating to gender identity was dropped
This bill has the support of some major business
groups
Increases its prospects for passage
Healthcare Reform
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Target date for healthcare reform: prior to
Thanksgiving recess
IPMA-HR has started a healthcare taskforce to
advise the association on various proposals
Basic elements: employer pay-or-play mandate,
an individual mandate, federal subsidies for
lower-income individuals and a public plan
option
Supreme Court
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Supreme Court ruled January 26, 2009 that Title VII’s
anti-retaliation provisions are triggered by an
employer’s internal investigation
Court unanimously overturned 6th Circuit and
remanded for further proceedings
Crawford v. Metro Government of Nashville and Davidson City,
TN, Docket No. 06-1595
Supreme Court
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On April 1, Court ruled 5-4 that mandatory arbitration
clause in a collective bargaining agreement requiring
arbitration of age discrimination claims is valid
An employee alleging age discrimination must arbitrate
claim – cannot take case directly to court
Impact: Arbitrators are largely seen as more employerfriendly and employees likely to have more difficult time
pursuing age discrimination claims
14 Penn Plaza LLC v. Pyett, Docket No. 07-581
Supreme Court
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Court ruled 5-4 in favor of the firefighters
in case: Ricci et al. v. DeStefano, Docket
No. 07-1428
Court found that the City of New Haven,
Connecticut violated Title VII’s disparate
treatment provisions
IPMA-HR filed a brief in support of New
Haven
Supreme Court
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Impact of the decision: employers they
cannot reject test scores that have
disparate impact unless evidence that test
was discriminatory
Employers have greater exposure to
liability
Additional Information
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Contact Tina Chiappetta, Senior Director
of Government Affairs & Communications
[email protected]
703/549-7100