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:  

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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:

1. 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.

2. 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.

3. 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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