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With the New Year underway and new government leadership on the doorstep, this is a perfect time for employers to reflect on the past and look toward the future with new resolve. A handful of important changes to the law in 2008, as well as impending changes that may take effect in coming months, provide employers with the opportunity to make changes to ensure a successful year in 2009 and beyond. To help you move into 2009 with the tools you need to accomplish your goals, we would like to suggest five New Year's Resolutions for Employers:

1. Revise Policies, Procedures and Handbooks to Reflect Amendments to the Americans with Disabilities Act (ADA)

The ADA Amendments Act (ADAAA), which introduced a number of changes to the ADA that make it easier for an employee to qualify as "disabled," went into effect January 1, 2009.

Under the new law, courts and the Equal Employment Opportunity Commission (EEOC) will broaden their definitions of key terms under the Act, making it easier for more individuals to claim that they have been discriminated against based on a disability. Some of the key provisions of the ADAAA which employers should be aware of include the following:

• An individual need not actually, at the time of the discrimination, be suffering from a disability to have a cause of action under the ADA, so long as he or she has a record of disability or is regarded as impaired.
• An episodic or in-remission impairment is a disability if it would "substantially limit a major life activity when active."
• When considering whether or not major life activities are substantially limited by impairment, courts are now instructed to not consider certain measures which may ameliorate the impairment, such as medication, prosthesis, or technology.
• Major life activities include, but are not limited to: caring for oneself, seeing, hearing, eating, lifting, speaking, breathing, learning, reading, thinking, communicating, and working. Major life activities also include the "operation of a major bodily function" such as functions of the various body systems.

As a result of the ADAAA, employers should become familiar with the new standards, reconsider reasonable accommodation decisions, revise ADA policies to reflect the new law, and educate managers on the changes. Because these changes have yet to be addressed by the courts or the EEOC, you should stay tuned for updates and interpretations announced over the coming months.

2. Update Family and Medical Leave Act Policy

The Department of Labor's Wage and Hour Division has published a Final Rule under the FMLA which takes effect January 16, 2009. The Final Rule updates the FMLA and adds new entitlements such as Military Family Leave and leave for certain qualifying exigencies related to military activities. The Final Rule also alters eligibility requirements for individuals with a break in service from the employer, redefines "serious health condition," and expands which employer representatives may contact a health care provider, among a handful of other changes. It is important to note that the Final Rule does not reduce the law's coverage for workers who need FMLA leave, but rather is intended to provide clarity for workers and employers about their respective rights and responsibilities under the Act.

In anticipation of these impending changes and revisions to the FMLA, you should begin reviewing the Final Rule as soon as possible and make policy changes as necessary. The Final Rule can be found on the Department of Labor's website. Given the large number of potentially complex changes to the FMLA, you should consider contacting a member of Bingham McHale's Labor and Employment group to ensure that policy updates and revisions are comprehensive and sufficient to reflect the new law.

3. Establish "No-Match Letter" Procedures

Every year and upon hiring a new employee, employers are required to provide wage and employment information to the Social Security Administration (SSA) and other regulatory agencies. Upon receiving this information, the SSA conducts a search to ascertain whether the information provided by the employer matches the information in the SSA database. When there is a discrepancy between an employee's name and social security number and the information on record with the SSA, the SSA sends the employer a "no-match" letter notifying the employer of the discrepancy. While many "no-match" letters are issued as a result of administrative errors such as copying the wrong number or misspelling a name, "no-match" letters can also indicate that an employer is employing individuals who do not have a valid social security number.

On October 23, 2008, DHS issued its supplemental final "no-match" letter rule which seeks to ultimately clarify employers' obligations and responsibilities, under the INA and otherwise, upon receiving a "no-match" letter from the SSA. Even though the rule cannot take effect until a California Court lifts the injunction currently blocking implementation of the rule, it is important for employers to familiarize themselves with the various rules and safe harbor provisions found in the "no-match" letter rule.

In general, the safe harbor rules require the employer, upon receiving a "no-match" letter to:

• Check its own records to ascertain whether the mis-match is a result of a typographical mistake or other administrative error.
• If the employer's records are accurate, the employer is to "promptly" contact the employee to attempt to clarify the mistake.
• If either the internal search or the employee himself or herself results in new information, the employer is to contact the relevant agencies and provide the updated information to resolve the discrepancy.
• If the discrepancy is unable to be resolved within a particular timeframe using any of the approved methods, the employer must choose between terminating the employee or face the risk that DHS may find that the employer had constructive knowledge that the employee is unauthorized to work in violation of immigration regulations.

Because the safe harbor regulations found in the final rule are novel and detailed, and because anti-discrimination laws may be implicated, employers should consult the regulations and seek legal advice prior to taking any steps on a "no-match" letter.

4. Educate Employees to Avoid Unionization

The Employee Free Choice Act (EFCA) is on the Democratic agenda and may be at the top of President-Elect Obama's list of legislation to move through upon arriving at the White House early this year. Already passed in the House of Representatives, the EFCA would eliminate the secret ballot procedure in elections for union representation. Instead of the secret ballot method, under the EFCA, the National Labor Relations Board (NLRB) will certify a union as the exclusive bargaining representative of employees if a majority of employees sign an authorization card, thus making it significantly easier for a union to take hold. The EFCA also implements mandatory mediation and then arbitration of the initial collective bargaining agreement if mutual agreement is not reached by the parties within 90 days of beginning the bargaining process. Finally, the EFCA strengthens enforcement provisions and implements enhanced fines when an employer interferes with organizing activities.

In short, the passing of the EFCA will bring with it significant changes and potentially increase labor organization involvement in a number of workplaces. However, employers are not helpless to combat the EFCA. For one, those opposed to the EFCA may choose to engage in activities that may persuade the senate to oppose the Act. Also, currently non-unionized employers can and should take action to educate employees on the impact that a union could have on the workplace.

More specifically, employers should create and publicize an anti-union policy. Even though such a policy cannot totally prevent unionization or penalize employees from engaging in union activities, such a policy could help to deter employees from agreeing to unionization by educating them on the high quality of work life, employment environment, and benefits that they currently enjoy without a union. If employees are satisfied with their supervisors, feel that their concerns and issues are addressed by management, and realize that they already enjoy a high level of comfort and benefits within their employment, they will be less likely to seek or desire new, outside representation in the form of a union.

A labor and employment law attorney can help you to devise an anti-union policy and plan to help you prepare for the EFCA.

5. Strengthen Anti-Workplace Bullying Policies and Procedures

As you know, numerous federal and state laws make various employment-related behaviors including discrimination and harassment on the basis of protected characteristics like race, sex, gender, and age illegal. However, no state has enacted any law dealing with "workplace bullying" or generally negative behaviors that do not rise to the level of discrimination or harassment.

However, in 2008, the Indiana Supreme Court, in Raess v. Doescher, ruled that workplace bullying, though not a form of prohibited discrimination or harassment under Title VII, could rise to the level for an employee to have a valid cause to sue an employer or other employee. In that case, the employee sued a doctor at an Indianapolis hospital for assault and intentional infliction of emotional distress after the doctor aggressively approached the employee, screaming and cursing, with clenched fists, in the hallway of the hospital. The Court concluded that this behavior, though clearly not "discriminatory," could cause the employee serious emotional distress and thus be a valid basis for an award of damages. Thus, the decision in Raess has opened the door to a state court cause of action for employees who have been verbally and emotionally abused in some way while on the job.

While the decision in the Raess case did not specifically affect the employer of the perpetrator, the negative effects that workplace bullying can have on employees and business in general should encourage you to take an active role in preventing workplace bullying at your worksite before it begins. Several steps may help to curb workplace bullying including: prohibition of such conduct, company policies that emphasize cooperation and respect, and clear, publicized internal complaint procedures for such conduct. By creating an environment of non-tolerance for bullies, you can avoid the negative energy caused within the workplace by such conduct while also helping to avoid the reputational damage caused by potential lawsuits for workplace bullying.

Conclusion

From all of us in the Labor and Employment Department at Bingham McHale: Happy New Year! We hope that this newsletter and our suggested resolutions find you and yours doing well.

As always, please contact us if you have any questions regarding this newsletter or if we can do anything to help you to accomplish all of your goals for a successful 2009.