Wisconsin IPMA-HR April 17 2009 Washington Update By

Wisconsin IPMA-HR April 17, 2009 Washington Update By Tina Chiappetta Senior Director of Government Affairs

Dramatic Changes • The White House, Senate and House of Representatives are all controlled by Democrats for the first time since 1994 • Senate Democrats are still shy of the filibuster proof margin of 60 votes • Expect to see employee-friendly legislation and legislation supported by unions

Economy • Unemployment up to 8. 5% – Actual unemployment rate is closer to 15% • BLS reports 13. 2 million are unemployed • IPMA-HR Public Sector Employment Outlook Survey October: 52% of respondents still planning to hire for new positions in 2009, with #1 hiring area being public safety – More than double the # of respondents indicated that they plan lay-offs this year as compared to last year – 67% of respondents indicated they are keeping vacancies unfilled as compared to 31% in 2008

Regulation Freeze • White House Chief of Staff Rahm Emanuel issued a memo Jan. 20 to all federal agencies and departments freezing any new or pending regulations drafted by the Bush administration. The memo states that no proposed or final regulation should be sent to the Federal Register for publication until it has been reviewed and approved by a department or agency head appointed by the new administration.

Regulation Freeze • Department of Labor “Clean-Up” of Fair Labor Standards Act (FLSA) regulations on indefinite hold • IPMA-HR and National League of Cities, International Municipal Lawyers Association filed comments • Use of compensatory time, overtime for dual-function paramedics/firefighters

Fair Pay • President Obama’s first law: Ledbetter Fair Pay Act, overturns the Supreme Court’s opinion in Lilly Ledbetter v. Goodyear Tire & Rubber Co. Inc. (2007) • Eliminates statutes of limitation in cases where compensation is concerned • Creates new right of action for “aggrieved persons” to file claim without filing an EEOC charge

Fair Pay • IPMA-HR opposed the legislation because it is likely to increase litigation without solving any underlying gender discrimination issues • Next step: EEOC will develop regulations implementing the new law

Mandatory Collective Bargaining • The Public Safety Employer-Employee Cooperation Act reintroduced • The bills are expected to pass and be signed into law • Strong support of labor unions – IAFF and FOP

Mandatory Collective Bargaining • Requires states and localities to engage in collective bargaining with police, fire and emergency medical technicians • Gives the Federal Labor Relations Authority (FLRA) the power to create regulations and ensure that states laws are substantially compliant

Mandatory Collective Bargaining • 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 • 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 • 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 • 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

ADA Amendments Act • 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 • ADA defines disability as: (1) physical or mental • impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment Amendments lowers the bar an employee must clear to establish ADA protection – Substantially limited shall be interpreted broadly

ADA Amendments Act • 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 • 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 • Last year the Genetic Information Nondiscrimination Act became law • Prohibits employers from using genetic information in making decisions related to any terms, conditions, or privileges of employment • State laws that provide equal or greater protections are NOT preempted

Genetic Nondiscrimination • Bans the collection of genetic information except in very limited circumstances • EEOC issued proposed regulations March 2, final by May 21, 2009 • Law and regulations become effective November 2009

Genetic Nondiscrimination • Law prohibits retaliation and regulations may also prohibit harassment • Damages same as under Title VII

Mental Health Parity • In October 2008, mental health parity legislation • • • passed as part of an economic rescue package effective January 1, 2010 Requires mental and physical impairments to be treated the same It does not require health plans to cover mental health or addiction but if they do, the coverage provided must be equal to that provided physical impairments The number of doctors’ visits, co-pays and deductibles must be the same for mental and physical impairments

Mental Health Parity • Self-insured public sector plans that have been able to opt out under the existing mental health parity law will be able to continue to opt out • Opt-out is not automatic • Generally effective after October 2009 • Collectively bargained plans have a delayed implementation date

Employee Free Choice Act • Allows for “card check” by amending the NLRA to require the NLRB to certify a bargaining representative without an election • Very controversial, supported by unions but generally opposed by employers as taking away the right to a secret ballot • Direct impact on private sector employers only

Employee Free Choice Act • Passed the House of Representatives last year but failed to garner the 60 votes needed in the Senate to end debate • Currently discussing a “compromise” • Prospects for passage dimming in light of Senator Specter’s objections

E-Verify • Legislation passed extending the current E -verify program to September 2009 • Employer groups successful in getting stay so that federal contractors do not need to use E-verify until May 2009 • IPMA-HR has been working for commonsense changes to employee eligibility verification

Cell Phone Policy • Legislation S. 2668 and H. R 5719 -- the MOBILE • Cell Phone Act of 2009 introduced this year to remove cell phones from “listed property” 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

Cell Phone Policy • Last year similar legislation passed the House of Representatives but the Senate ran out of time before they could vote on it • Prospects for passage this year are good

Employment Nondiscrimination Act • 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

Healthcare Reform • President Obama pledged to address healthcare and we can expect legislation this year • Employer-based healthcare to be debated • IPMA-HR has started a healthcare taskforce to advise the association on various proposals

Healthy Families Act • Bills introduced last year would require • • • employers with 15+ employees to provide a minimum of seven paid sick days per year Issues include part-time employee benefits (between 20 -30 hours per week) Imposition of federal notification requirements For example: no doctor’s note unless absence of 3 days or more – commencement of leave cannot be delayed

Supreme Court • Supreme Court ruled January 26, 2009 that Title • VII’s anti-retaliation provisions are triggered by an employer’s internal investigation Court unanimously overturned 6 th Circuit and remanded for further proceedings • Crawford v. Metro Government of Nashville and Davidson City, TN, Docket No. 06 -1595

Supreme Court • 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 • Recently added a testing case to it’s docket • Will decide when a city can refuse to certify the results of an exam that has an adverse impact on minority candidates • Case arose from firefighter promotional exams in New Haven, CT

Supreme Court • IPMA-HR, NLC and IMLA filed a brief on behalf of the City of New Haven, as did the Obama Administration • Ricci et al. v. De. Stefano, Docket No. 071428 • Opinions in above cases are expected prior to the Court’s adjournment in June 2009.

Additional Information • Contact Tina Chiappetta, Senior Director of Government Affairs & Communications • Tchiappetta@ipma-hr. org • 703/549 -7100