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TLP Announcements

December 2008
A REVIEW OF SIGNIFICANT CHANGES
IN 2008 AND
ANTICIPATED CHANGES IN 2009
As 2009 approaches, Employers are confronted
with multiple realities including a
recessionary economy as well as evolving and
new legislation. A number of existing
employment statutes have been amended, new
employment legislation has been enacted and
additional action by the incoming Democratic
administration is anticipated. A brief review
of that legislation follows:
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The Family and Medical Leave Act:
The Department of Labor issued Final
Regulations, effective January 16, 2009, making
significant changes to the administration of
the FMLA and providing guidance on the new
Military Leave provisions. The Final
Regulations include new DOL-approved forms for
utilization during the FMLA certification
process. Given the Final Regulations, each
employer should review and, to the extent
necessary, revise existing FMLA policies and
practices.
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The Americans with Disabilities Act:
Effective January 1, 2009, Amendments to the
ADA will liberalize the rules for determining
whether an individual is disabled and, as a
result, the number of employees who have
covered disabilities will increase. For
example, the Amendments provide that mitigating
measures (such as medication and medical
devices) may no longer be considered when
determining whether an individual has a
disability. The Amendments also clarify that an
impairment that is episodic or in remission is
a disability if it would substantially limit a
major life activity when active. The Amendments
also make it easier for an individual to
establish the claim of being “regarded as”
disabled, but provides that such individuals
are not entitled to reasonable accommodations.
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The Genetic Information Nondiscrimination
Act: On May 21, 2008, President George
W. Bush signed into law the Genetic Information
Nondiscrimination Act (GINA), which prohibits
employers from taking into account an
employee’s genetic information, as well as the
genetic information of an employee’s family
members, when making hiring, firing, job
placement or promotion decisions. While signed
into law on May 21, 2008, the employment
non-discrimination provisions of GINA are
effective November 21, 2009. GINA further
prohibits health insurers and group health
plans from denying health coverage or charging
higher premiums based solely on genetic
predisposition.
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Illegal Alien and Immigration Status
Verification: Missouri public and
private employers must be in compliance with
this new law which institutes a number of
requirements and subjects employers to
financial and other penalties for employing
unlawful immigrants. It also requires that all
public and some private employers participate
in the federal E-Verify authorization program.
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Red Flag Rules: The Federal Trade
Commission has extended the deadline to May 1,
2009 for compliance with its “Red Flags Rule,”
requiring creditors, including companies and
entities that regularly extend, renew, or
continue credit and those that defer payment
for goods or services, and financial
institutions, to prevent the misappropriation
of consumer information by implementing written
identity theft policies. Developing an identity
theft policy can be time consuming and The
Lowenbaum Partnership recommends that covered
entities act as quickly as possible to adopt
and implement policies in advance of the May 1,
2009 deadline.
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Missouri Minimum Wage for 2009:
Missouri’s minimum wage will increase on
January 1, 2009 to $7.05 per hour. Since
January 1, 2006 and the passage of Proposition
B, there has been a significant increase in
litigation pursuant to Missouri’s wage and hour
laws. Employers should ensure their
compensation practices are in compliance with
Missouri law.
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Illinois Minimum Wage for 2009:
Illinois’ minimum wage is currently $7.75 an
hour and it will increase to $8.00 an hour
effective July 1, 2009.
In 2009, The Lowenbaum Partnership also
anticipates the passage and enactment of
proposed legislation that will dramatically
alter the country’s labor laws. That
legislation includes the following:
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The Employee Free Choice Act:
This legislation was co-sponsored by
President-elect Obama and would: (1) permit
certification of unions without a secret-ballot
election; (2) require the completion of
negotiations within 120 days of “certification”
and, if no contract is finalized within that
timeframe, allow for binding “interest
arbitration;” (3) empower arbitrators to set
contract terms for up to two years; (4) impose
penalties and fines up to $20,000 for
violations of the law that are currently
remedied by a notice posting.
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The Patriot Act: This legislation
would provide a tax credit equal to 1% of
taxable income to employers that pay “decent”
wages; prepare workers for retirement; provide
a prescribed level of health insurance; invest
in America jobs; and have in effect and operate
in accordance with a policy requiring
“neutrality” in union organizing drives.
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The Respect Act: This legislation
would change the current definition of a
“supervisor” under the National Labor Relations
Act; increase the percentage of an employer’s
workforce that could be organized by unions;
and, simultaneously, further burden management
of a Company.
If you have questions regarding any of the
above please do not hesitate to contact any of
the lawyers at the Lowenbaum Partnership, L.L.C.
This E-Alert is intended as in informal
summary of certain recent legislation, cases,
rulings and other developments. This E-Alert
does not constitute legal advice or a legal
opinion and is not an adequate substitute for
advice of counsel. This E-Alert is not intended
to nor does it create an attorney-client
relationship. The choice of a lawyer is an
important decision and should not be based
solely upon advertisements. If this E-Alert is
deemed to be an advertisement please disregard
this solicitation if you have already engaged a
lawyer in connection with the legal matter
referred to in this solicitation. You may wish
to consult your lawyer or another lawyer
instead of us. The exact nature of your legal
situation will depend on many facts not known
to us at this time. You should understand that
the advice and information in this solicitation
is general and that your own situation may
vary. This statement is required by rule of the
Supreme Court of Missouri.
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