In the Media

Lucetta V. Franco to Present on Americans with Disabilities Amendments Act of 2008

On February 17, 2009, starting at 8:30 a.m., Lucetta V. Franco will be a co-presenter for “Changes & Strategies for the ADA Amendments Act of 2008” sponsored by the Employment Law Section of the Oakland County Bar Association. For additional information, please contact the OCBA at (248) 334-3400. Register online to attend the event.

Congress overturns U.S. Supreme Court decision in Ledbetter

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 into law. This Act outlaws “discrimination in compensation” which is broadly defined to include wages and employee benefits. The Ledbetter Act, by legislation, overturns the U.S. Supreme Court’s May 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. That decision required workers to file charges on a pay discrimination claim within the first six months of receiving their first discriminatory paycheck.

Ms. Ledbetter was a longtime supervisor at a Goodyear tire plant in Alabama. When she discovered that she was paid significantly less than male supervisors, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) for gender-based pay discrimination under Title VII. Ms. Ledbetter won in the trial court. However, on appeal, the U.S. Supreme Court dismissed Ms. Ledbetter’s claims. It held that, although there was unlawful discrimination, Ms. Ledbetter failed to timely file her Charge of Discrimination because she did not file within 180 days of the first time her paycheck was less than her male counterparts. The Supreme Court took this position even though Ms. Ledbetter was not aware of the discrimination during this time period and, accordingly, it would have been impossible for her to meet this standard.

The Ledbetter Act fixes this widely criticized decision which, in effect, prevented many injured employees from exercising their civil rights. The new Act adopts a “pay-check accrual” test that had been used by many EEOC offices prior to the Supreme Court decision. This provides a new statute of limitations which makes clear that each new paycheck is a violation of law if it results “in whole or in part” from a discriminatory pay decision in the past. Employers will be liable for damages for discriminatory pay practices for the two years preceding the filing of the EEOC Charge of Discrimination.

The new Act actualizes the promise of providing a level playing field by requiring that employers establish compensation systems that are color and gender blind and gives employees the means to challenge employers that do not play by these rules. This new legislation will result in the increase the filing of wage discrimination claims because it opens the door that had been slammed shut by the U.S. Supreme Court decision. Notably, in Michigan, employees have 300 days to file with the EEOC. Smart employers will examine their compensation practices to assure that they are non-discriminatory and reward equal work with equal pay.

Family Medical Leave Act Amendments

On January 16, 2009, new regulations from the Department of Labor regarding the Family Medical Leave Act (FMLA) went into effect. The FMLA was enacted in 1993 to require employers with 50 or more employees to allow eligible employees to take unpaid leave for up to 12 weeks for specific qualified reasons and to have their jobs protected upon their return. The primary areas of amendment to the FMLA concern (1) leave rights for family members of armed forces personnel and (2) clarification of existing regulations.

Leave rights for family members of armed forces personnel are in two categories: qualifying exigency leave and military caregiver leave. The new FMLA regulations are consistent with obligations imposed upon employers regarding military family leave enacted in 2008 under the National Defense Authorization Act.

Qualifying exigency leave is available only for family members of military members serving in the National Guard or Reserves. It does not apply to family members of military personnel fighting in the Regular Armed Forces. This leave requires an employer to provide an eligible employee up to a total of 12 weeks of unpaid leave during the normal 12-month period used by the employer to determine FMLA eligibility for qualifying exigencies, not necessarily medical, that arise from their spouse, son, daughter or parent being on active duty, being notified of a call or order to active duty, or in support of a contingency operation.

Military caregiver leave is available to employees who are the spouse, son, daughter, parent or next of kin of a covered service member to care for the service member. These employees are entitled to a total of 26 weeks (as opposed to 12 weeks) of leave during a 12-month period. A “service member” is a member of the Armed Forces, including a member of the National Guard or Reserves who is undergoing qualified medical treatment.

With respect to clarifying existing regulations, some of the new FMLA regulations include the following:

• Employees must follow their employer’s call-in policies when they are planning to miss work absent unusual circumstances.
• Employers are required to provide notice of FMLA rights to employees. Failure to do so is considered interference with the employee’s rights and may subject the employer to liability.
• Employers now have five business days (rather than two) to notify employees of their FMLA eligibility.
• To have a “chronic condition” that qualifies for FMLA leave, employees for the first time will have to certify that they visited a doctor at least twice a year for the condition.
• Direct supervisors are prohibited from getting an employee’s medical information when an FMLA certification is needed in order to protect the employee’s privacy.
• Employers may require "fitness-for-duty" tests for employees returning from intermittent FMLA leave if doing the job raises a significant risk of harm to themselves or others.
• When employers place injured or ill workers on light duty, the time on light duty does not count against the employee’s FMLA leave entitlement.
• The regulations provide additional clarification regarding the type and frequency of treatments that employers must receive under the “chronic” and “continuing treatment” definitions of a serious health condition.
• The regulations also contain more detailed guidance on the substitution of paid leave for FMLA leave and substantial new notice requirements for employers.

Americans with Disabilities Act Amendments of 2008

On January 1, 2009, the Americans with Disabilities Act (“ADA”) Amendments of 2009 became effective. These amendments implement several important changes to the ADA and the intent is to ensure that the original protections of the ADA are provided to employees in light of several Supreme Court decisions that were viewed as eroding those protections. All employers who have been covered by the ADA (those with 15 or more employees in 20 or more weeks in the current or previous calendar year), are covered by the Amendments.

After much debate, the amendments maintain the current requirement that an impairment be one that “substantially limits one or more major life activities” in order to be considered a disability. The amendments also keep the burden of proof upon the employee to establish that he/she is a qualified employee with a disability.

Expanding the protections provided to employees, the new legislation does the following:

• Prohibits employers and courts from considering the impact of mitigation or medically corrective measures (except eyeglasses and contact lenses) when determining whether a disability exits. Employees will be evaluated without regard to hearing aids, medication, or other measures that may be used to manage their impairments.
• Expands the list of major life activities in which an employee may be limited. The non-exclusive list of major life activities includes caring for oneself, performing manual tasks, seeking, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Other listed activities are the operation of major bodily functions, including those of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
• Redefines to a lesser standard the “substantial limitation” requirement.
• Broadens the “regarded as” disabled definition, making it easier for employees to assert perceived disability claims.

With respect to amendments that are regarded as pro-employer, the new legislation does the following:

• Clarifies that “regarded as” disabled claims cannot be asserted for minor or transitory impairments;
• Requires that an employer need only provide accommodation where an employee actually has a disability -- not where he or she is merely "regarded as" disabled;
• Bars reverse discrimination claims by non-disabled employees.

These changes to the ADA will significantly expand the number of individuals who qualify as disabled under the Act and who are eligible for protection.