IPMA-HR Eastern IPMA-HR Eastern Region ConferenceRegion Conference

Tina Ott Chiappetta

Senior Director of Government Affairs

Washington Washington UpdateUpdate

Fair Pay Fair Pay

President Obama’s first law: President Obama’s first law: Lilly Ledbetter Fair Pay Act, Lilly Ledbetter Fair Pay Act, Overturns the Supreme Court’s opinion Overturns the Supreme Court’s opinion

in in Lilly Ledbetter v. Goodyear Tire & Lilly Ledbetter v. Goodyear Tire & Rubber Co. Inc. Rubber Co. Inc. (2007)(2007) Ledbetter worked for Goodyear for 19 Ledbetter worked for Goodyear for 19

yearsyears Raises based on performance reviews; Raises based on performance reviews;

Ledbetter had several poor reviewsLedbetter had several poor reviews At retirement Ledbetter earned $44,724 – At retirement Ledbetter earned $44,724 –

lowest paid male counterpart - $51,432lowest paid male counterpart - $51,432

Fair Pay Fair Pay

Supreme Court ruled that no Supreme Court ruled that no discriminatory act had occurred discriminatory act had occurred within the 180 days prior to within the 180 days prior to Ledbetter filing the EEOC charge Ledbetter filing the EEOC charge

The performance reviews and pay The performance reviews and pay determinations might have been determinations might have been discriminatory but occurred prior to discriminatory but occurred prior to the 180 days and were time barred the 180 days and were time barred

Fair Pay Fair Pay

Law signed in January – retroactive to Law signed in January – retroactive to May 2007 May 2007

Eliminates statutes of limitation in cases Eliminates statutes of limitation in cases where compensation is concerned- could where compensation is concerned- could include terminations, demotions, denied include terminations, demotions, denied promotions and possibly promotions and possibly pension/retirement planspension/retirement plans

Creates new right of action for Creates new right of action for “aggrieved persons” to file claim without “aggrieved persons” to file claim without filing an EEOC chargefiling an EEOC charge

Fair Pay Fair Pay

Applies to complaints brought under Applies to complaints brought under the ADA and the ADEA as well as the ADA and the ADEA as well as Title VII – broader than gender Title VII – broader than gender discriminationdiscrimination

HR should review pay practices, HR should review pay practices, examine positions and parity, and examine positions and parity, and develop record keeping practices develop record keeping practices that allow for longer that allow for longer storage storage

Mandatory Collective Mandatory Collective Bargaining for Public Bargaining for Public

SafetySafety The Public Safety Employer-Employee The Public Safety Employer-Employee

Cooperation Act reintroduced as H.R. Cooperation Act reintroduced as H.R. 413 by Representative Kildee (D-MI) & 413 by Representative Kildee (D-MI) & S. 1611 by Senator Gregg (R-NH) S. 1611 by Senator Gregg (R-NH)

House bill has 133 co-sponsors House bill has 133 co-sponsors Senate bill has 9 co-sponsorsSenate bill has 9 co-sponsors Bipartisan support Bipartisan support Expected to pass during this session of Expected to pass during this session of

congresscongress

Mandatory Collective Mandatory Collective Bargaining Bargaining

Requires states and localities to Requires states and localities to engage in collective bargaining with engage in collective bargaining with police, fire and emergency medical police, fire and emergency medical technicians technicians

States that do not have collective States that do not have collective bargaining laws will have two years bargaining laws will have two years to enact one or fall under the FLRA to enact one or fall under the FLRA

The FLRA will develop regulations The FLRA will develop regulations for those states without laws for those states without laws

Mandatory Collective Mandatory Collective Bargaining Bargaining

A state will be exempt from the law if it A state will be exempt from the law if it substantially provides the following: substantially provides the following: 1. The right of public safety officers to 1. The right of public safety officers to

form and join a union which may exclude form and join a union which may exclude management/supervisory employees management/supervisory employees

2. Requires employer to recognize the 2. Requires employer to recognize the union (freely chosen by majority of union (freely chosen by majority of employees), to bargain, to commit employees), to bargain, to commit agreements to writing agreements to writing

Mandatory Collective Mandatory Collective Bargaining Bargaining

3. Provides the right to bargain over 3. Provides the right to bargain over hours, wages and terms and conditions hours, wages and terms and conditions of employment of employment

4. Makes available an interest impasse 4. Makes available an interest impasse resolution mechanism such as fact-resolution mechanism such as fact-finding, mediation, arbitration etc. finding, mediation, arbitration etc.

5. Requires enforcement through 5. Requires enforcement through administrative agencies and State administrative agencies and State courtscourts

Mandatory Collective Mandatory Collective Bargaining Bargaining

IPMA-HR has been a leader in the effort IPMA-HR has been a leader in the effort to oppose the bills, including testifying to oppose the bills, including testifying before a House subcommittee and before a House subcommittee and meeting with House and Senate staffmeeting with House and Senate staff

Concerns include the federalization of Concerns include the federalization of collective bargaining, increased costs, collective bargaining, increased costs, loss of local control over expenditures for loss of local control over expenditures for public safety , similar request for public safety , similar request for unionization by other employee groupsunionization by other employee groups

FMLA FMLA

One of the most important changes One of the most important changes last year was the expansion of the last year was the expansion of the FMLA for military families FMLA for military families

Two parts – one allows caregivers 26 Two parts – one allows caregivers 26 weeks of leave per 12 month weeks of leave per 12 month

period to care for period to care for

injured/ill servicemember injured/ill servicemember

FMLAFMLA

Second part allows eligible Second part allows eligible employees up to 12 weeks of leave employees up to 12 weeks of leave for “any qualifying exigency” related for “any qualifying exigency” related to a son/daughter, spouse or to a son/daughter, spouse or parent’s call to active duty parent’s call to active duty

Became effective January 16, 2009 Became effective January 16, 2009

FMLA FMLA

The Department of Labor also revised The Department of Labor also revised the current regulations making many the current regulations making many changes to the notice and changes to the notice and certification provisionscertification provisions

Department said it lacked the Department said it lacked the authority to address the definition of authority to address the definition of a serious health condition or the use a serious health condition or the use of intermittent leaveof intermittent leave

Sample policies available on the Sample policies available on the IPMA-HR Center websiteIPMA-HR Center website

Some of the changes to the Some of the changes to the regulations include: 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 issuesIntermittent 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 FMLA Expansion

Bill introduced to repeal the Bill introduced to repeal the regulations – FMLA Restoration Act, regulations – FMLA Restoration Act, H.R. 2161, introduced April 29 H.R. 2161, introduced April 29

FMLA expansion for all military FMLA expansion for all military families in House appropriations bill families in House appropriations bill

The Balancing Act of 2009 (H.R. The Balancing Act of 2009 (H.R. 3047) has 34 cosponsors introduced 3047) has 34 cosponsors introduced June 2009, includes many FMLA June 2009, includes many FMLA expansion bills, the Healthy Families expansion bills, the Healthy Families Act & Violence Against Women ActAct & Violence Against Women Act

ADA Amendments Act ADA Amendments Act

Effective January 1, 2009 Effective January 1, 2009 More reasonable than the originally More reasonable than the originally

proposed ADA Restoration Actproposed ADA Restoration Act Expands the definition of a disability Expands the definition of a disability

by specifically rejecting several by specifically rejecting several Supreme Court opinions Supreme Court opinions

ADA Amendments ActADA Amendments Act

Amendments lowers the bar an Amendments lowers the bar an employee must clear to establish employee must clear to establish ADA protection ADA protection

Overturns Overturns Toyota v. WilliamsToyota v. Williams where Supreme Court said a where Supreme Court said a disability must prevent or severely disability must prevent or severely restrict a major life activity restrict a major life activity

““Substantially limits” should be Substantially limits” should be interpreted broadly interpreted broadly

ADA Amendments Act ADA Amendments Act

ADAAA includes a non-exhaustive list of ADAAA includes a non-exhaustive list of major life activities and lists major bodily major life activities and lists major bodily functions that would be covered functions that would be covered

Need only show one major life activity Need only show one major life activity impacted – e.g. the ability to think impacted – e.g. the ability to think

Disabilities are considered in their Disabilities are considered in their untreated states – e.g. if an individual untreated states – e.g. if an individual successfully controls her diabetes with successfully controls her diabetes with insulin she may still be disabled under the insulin she may still be disabled under the law law

ADA Amendments Act ADA Amendments Act

Expands the “regarded as” prong by Expands the “regarded as” prong by allowing claims whether or not the allowing claims whether or not the disability substantially limits a major disability substantially limits a major life activity life activity

Employers do not have to Employers do not have to accommodate under the “regarded accommodate under the “regarded as” prong as” prong

EEOC expected to issue regulations EEOC expected to issue regulations

Genetic Genetic Nondiscrimination Nondiscrimination

Genetic Information Nondiscrimination Genetic Information Nondiscrimination Act (GINA) becomes effective Act (GINA) becomes effective November 2009 November 2009

Prohibits employers from using genetic Prohibits employers from using genetic information in making decisions information in making decisions related to any terms, conditions, or related to any terms, conditions, or privileges of employment privileges of employment

Bans the collection of genetic Bans the collection of genetic information except in very limited information except in very limited circumstances circumstances

Genetic Genetic Nondiscrimination Nondiscrimination

EEOC issued proposed regulations March EEOC issued proposed regulations March 22

IPMA-HR submitted comments that IMLA IPMA-HR submitted comments that IMLA and the League of MN Cities joinedand the League of MN Cities joined

Urged clarity, examples and a definition Urged clarity, examples and a definition of “voluntary” wellness programs that of “voluntary” wellness programs that does not interfere with public sector does not interfere with public sector programsprograms

Offered solution to problem of post-offer Offered solution to problem of post-offer medical exams – doctors do not share medical exams – doctors do not share information with employers information with employers

Genetic Genetic Nondiscrimination Nondiscrimination

Law prohibits retaliation and Law prohibits retaliation and regulations may also prohibit regulations may also prohibit harassmentharassment

Damages same as under Title Damages same as under Title VII VII

Currently employer-provided cell phones Currently employer-provided cell phones are considered a taxable benefit if used are considered a taxable benefit if used for personal calls. Employees must track for personal calls. Employees must track calls and pay for individual calls as well as calls and pay for individual calls as well as a pro rata share of the monthly fee a pro rata share of the monthly fee

IRS changed its position and in a IRS changed its position and in a statement on June 16, 2009 asked statement on June 16, 2009 asked Congress to change the law so that cell Congress to change the law so that cell phones are no longer taxable benefits phones are no longer taxable benefits

Cell Phone Policy

Healthy Families Act Healthy Families Act H.R. 2460, S. 1152 require employers with H.R. 2460, S. 1152 require employers with

15+ employees to provide a minimum of one 15+ employees to provide a minimum of one hour of paid sick leave for every 30 hours hour of paid sick leave for every 30 hours worked to a maximum of 56 hours per year worked to a maximum of 56 hours per year

Issues include part-time employee benefits Issues include part-time employee benefits Imposition of federal notification Imposition of federal notification

requirements requirements For example: no doctor’s note unless For example: no doctor’s note unless

absence of 3 days or more – commencement absence of 3 days or more – commencement of leave cannot be delayed of leave cannot be delayed

Mandatory OSHA Mandatory OSHA

The “Protecting America’s Workers Act of The “Protecting America’s Workers Act of 2009”  (H.R. 2067) was considered before 2009”  (H.R. 2067) was considered before the House Education and Labor the House Education and Labor Committee. Committee.

Would require OSHA coverage for all Would require OSHA coverage for all state and local employees – currently state and local employees – currently about half the states have opted to be about half the states have opted to be covered by the federal standardscovered by the federal standards

IPMA-HR and other public sector IPMA-HR and other public sector organizations are working to oppose this organizations are working to oppose this unfunded mandate. unfunded mandate.

Employment Employment Nondiscrimination Act Nondiscrimination Act

ENDA reintroduced in House & Senate (H.R. ENDA reintroduced in House & Senate (H.R. 3017, S. 1584)3017, S. 1584)

Last session, ENDA passed the House by a Last session, ENDA passed the House by a vote of 235-184 not voted on in the Senate vote of 235-184 not voted on in the Senate

Prohibits employers from discriminating Prohibits employers from discriminating against individuals based on sexual against individuals based on sexual orientation – provision relating to gender orientation – provision relating to gender identity was droppedidentity was dropped

This bill has the support of some major This bill has the support of some major business groupsbusiness groups

Increases its prospects for passage Increases its prospects for passage

Healthcare Reform Healthcare Reform

Target date for healthcare reform: Target date for healthcare reform: prior to Thanksgiving recessprior to Thanksgiving recess

IPMA-HR has started a healthcare IPMA-HR has started a healthcare taskforce to advise the association on taskforce to advise the association on various proposals various proposals

Basic elements: employer pay-or-play Basic elements: employer pay-or-play mandate, an individual mandate, mandate, an individual mandate, federal subsidies for lower-income federal subsidies for lower-income individuals and a public plan optionindividuals and a public plan option

Supreme CourtSupreme Court

Supreme Court ruled January 26, 2009 Supreme Court ruled January 26, 2009 that Title VII’s anti-retaliation provisions that Title VII’s anti-retaliation provisions are triggered by an employer’s internal are triggered by an employer’s internal investigationinvestigation

Court unanimously overturned 6Court unanimously overturned 6thth Circuit Circuit and remanded for further proceedingsand remanded for further proceedings

Crawford v. Metro Government of Crawford v. Metro Government of Nashville and Davidson City, TN, Nashville and Davidson City, TN, Docket Docket No. 06-1595No. 06-1595

On April 1, Court ruled 5-4 that mandatory On April 1, Court ruled 5-4 that mandatory arbitration clause in a collective bargaining arbitration clause in a collective bargaining agreement requiring arbitration of age agreement requiring arbitration of age discrimination claims is valid discrimination claims is valid

An employee alleging age discrimination must An employee alleging age discrimination must arbitrate claim – cannot take case directly to arbitrate claim – cannot take case directly to courtcourt

Impact: Arbitrators are largely seen as more Impact: Arbitrators are largely seen as more employer-friendly and employees likely to have employer-friendly and employees likely to have more difficult time pursuing age discrimination more difficult time pursuing age discrimination claims claims

14 Penn Plaza LLC v. Pyett14 Penn Plaza LLC v. Pyett, Docket No. 07-581, Docket No. 07-581

Supreme Court

Court ruled 5-4 in favor of the Court ruled 5-4 in favor of the firefighters in case: firefighters in case: Ricci et al. v. Ricci et al. v. DeStefanoDeStefano, Docket No. 07-1428 , Docket No. 07-1428

Court found that the City of New Court found that the City of New Haven, Connecticut violated Title Haven, Connecticut violated Title VII’s disparate treatment provisions VII’s disparate treatment provisions

IPMA-HR filed a brief in support of IPMA-HR filed a brief in support of New Haven New Haven

Supreme Court

Impact of the decision: employers Impact of the decision: employers they cannot reject test scores that they cannot reject test scores that have disparate impact unless have disparate impact unless evidence that test was discriminatoryevidence that test was discriminatory

Employers have greater exposure to Employers have greater exposure to liabilityliability

Supreme Court

Additional InformationAdditional Information

Contact Tina Chiappetta, Senior Contact Tina Chiappetta, Senior Director of Government Affairs & Director of Government Affairs & CommunicationsCommunications

Tchiappetta@ipma-hr.org 703/549-7100703/549-7100