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The Employment Law Toolkit is a comprehensive resource highlighting the significant employment and labor issues facing Illinois employers in today’s business environment. It focuses on providing practical and cost-effective suggestions on how to avoid employment and labor-related liability and comply with many state and federal laws facing employers.
Arnstein & Lehr Partner and member of the
Legislative Update: Employment Non-Discrimination Act  ENDA The Employment Non-Discrimination Act (ENDA) would create federal protections against workplace discrimination based on sexual orientation and gender identity. The first version of the bill was introduced in 1994. The latest version, introduced in June 2009, is currently in committee. The House Education and Labor Committee held a full committee hearing on the bill in September, and the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing on ENDA in November. The Act, as proposed, would make it illegal to fire, refuse to hire, refuse to promote, or refuse to compensate an employee based on sexual orientation or gender identity. If passed, it would not apply to the military or to religious organizations and would exempt businesses with fewer than 15 employees. Further, the law doesn’t require employers to provide benefits to the same-sex partners of their workers. And law would not allow a “disparate impact” claim like the one available under Title VII of the Civil Rights Act of 1964 - which means an employer wouldn’t have to justify a neutral practice, even though it might have a statistically disparate impact on individuals because of their sexual orientation or gender identity. In 29 states, employees can still be fired because of their sexual orientation, and discrimination against transgender people is legal in 38 states. Illinois law provides protection for both sexual orientation and gender identity discrimination. Florida state law provides none. According to the Human Rights Campaign, 87 percent of Fortune 500 companies have adopted polices barring discrimination based on sexual orientation. The Obama Administration, in tandem with the President’s support for the bill, recently added language to the federal jobs Web site that explicitly bans gender identity-based employment discrimination under the federal Equal Employment Opportunity (EEO) policy. This is the first time that employment discrimination on the basis of gender identity has been explicitly banned by the federal government. A New Law Prevents Defense Contractors from Arbitrating Employment Disputes with Employees and Subcontractors On December 19, 2009, President Obama signed into law the Fiscal Year 2010 Department of Defense Appropriations Act. In this $63 billion spending measure is a provision, known as the “Franken Amendment” because it was originally introduced by Senator Al Franken of Minnesota, that prohibits federal defense contractors and subcontractors with contracts in excess of $1 million from enforcing existing employment arbitration agreements or entering into new ones with their employees or independent contractors. Under Section 8816 of the Act, in order to receive funds appropriated under the Defense Appropriations Act on contracts in excess of $1,000,000, a defense contractor or sub-contractor must agree not to enter into or take any action to enforce any agreement that requires, as a “condition of employment,” that an employee or independent contractor agree to resolve through arbitration any claim under Title VII of the Civil Rights Act of 1964 (e.g., claims of race, sex, national origin and religious discrimination, harassment and retaliation), or any tort claim related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention. This anti-arbitration provision currently applies only to large defense contractors and sub-contractors and it only precludes arbitration of employment claims, but not others. It is unclear if the Act also precludes the arbitration of common law claims unrelated to sexual harassment or sexual assault, state law employment claims, or claims under other federal employment statutes besides Title VII, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, or the Family Medical Leave Act. It is unclear whether failing to comply with the Act will merely invalidate the arbitration agreement, jeopardize the defense contract, or both. The Franken Amendment is the first time Congress has ever precluded any employers from using mandatory pre-dispute arbitration agreements. A More Comprehensive Anti-Arbitration Bill Is Pending In Congress. Although the anti-arbitration provision of the Defense Appropriations Act affects only large defense contractors and sub-contractors, there is a bill pending in Congress that could prohibit virtually all U.S. companies from entering into or enforcing pre-dispute agreements to arbitrate employment, civil rights and consumer disputes. Reintroduced in early 2009, the Arbitration Fairness Act of 2009 would bar all pre-dispute arbitration clauses in employment contracts (except collective bargaining agreements), consumer transactions, franchise agreements, and agreements to arbitrate disputes arising under any civil rights statute. If passed, the Arbitration Fairness Act would force most employment and consumer disputes currently resolved by private arbitration into the courts. The Arbitration Fairness Act remains in committee for now, but it is expected that Congress will consider the bill later this year once health care reform legislation is resolved. Where Is Employment Arbitration Headed? These congressional initiatives against employment arbitration come at a time of turmoil in this area of the law. Concerns about the unfairness of some companies’ arbitration procedures have caused private arbitration organizations (such as the National Arbitration Forum, JAMS and the American Arbitration Association) to change their rules or stop conducting certain kinds of arbitrations. State courts and legislatures are often hostile to arbitration, but the U.S. Supreme Court and most federal courts have endorsed arbitration as a quicker, cheaper, and less formal alternative to litigation. However, this Congress has shown little hesitancy in legislatively overruling other Supreme Court precedent. Only one thing is clear: the future of employment arbitration is up for grabs. Please tell us what you think: Is this the beginning of the end of employment arbitration?  Employment Arbitration: Law and Practice For more comprehensive information and guidance on employment arbitration, see Employment Arbitration: Law and Practice by Arnstein & Lehr partner and Employment Law Practice Group chair Paul Starkman , Gail Golman Holtzman, Donald J. Spero. Blogging, twittering, and use of other social networking media, such as Facebook, Flickr, MySpace, etc., are all becoming more popular each day, as is posting videos on YouTube, and otherwise posting information and images on the Internet. As such, employers are increasingly becoming interested in monitoring employees’ off-duty Internet activity. But what are the risks
 EFCA While the Employee Free Choice Act (“EFCA”) received front page treatment immediately after the November ’08 elections and through the spring, 2009, it has slowly lost its life force, so as to become moribund. While quickly introduced into the House, it rapidly lost support among key Democratic Senators, including Sen. Arlen Specter (D - Pa.) and Sen. Dianne Feinstein (D – Ca.). By June, the Senate Democrats and labor were at least six votes short of that needed for cloture and to end debate. Since then, the bill has been comatose, on a deathbed. While the bill is labor’s priority, it has received much less attention from President Obama, who has focused his energy on health care, climate change, and the great recession. Many commentators have speculated that labor has a fighting chance to revive and pass EFCA if it pushes hard in 2010 before the mid-term elections, with compromises in mind. Such compromises would include super majority card checks, quickie elections, or some combination of both; elimination or modification of mandatory interest arbitration for first time labor agreements, and implementing financial penalties and fines for employers who fail to bargain in good faith, or engage in surface bargaining; guaranteeing unions access to employees at the workplace, and limiting or restricting the employer’s right to engage in captive audience speeches; and imposing civil monetary penalties for unfair labor practices. The chances of passage could be enhanced if a compromise version was tacked on as an amendment to a job creation or other large bill. But the compromise would have to be just that, and not hand either management or labor a lopsided win. Such an effort will have to begin now, as the midterm elections are only 10 months away, and all indications are that Democrats in both Houses will lose a significant number of seats. One can imagine the frustration of SEIU President Andrew Stern as he reviews union expenditures after his weekly visits to the White House. This next two quarters, Arnstein & Lehr will be conducting several seminars to educate employers on how to remain union free, no matter what happens with card check at the end of the day. We will keep you informed of developments, and look forward to seeing you there. Happy New Year to all. Mark A. Spognardi is a partner in Arnstein & Lehr’s Labor and Employment Law Department. His practice is devoted exclusively to representing management in traditional and non-traditional labor and employment law litigation and counseling. For the past several months, Chicago Partner and Chair of Arnstein & Lehr’s Labor & Employment Practice Group, Paul Starkman, has been utilized as an expert source for four articles on a variety of employment law related topics. He has been quoted in Business Insurance, CFO.com and Inside Counsel.
Paul Starkman 2009 Media Coverage Summary
Chicago Partner Mark Spognardi discusses union contribution audits in the November 2009 issue of The Builder.
Dealing With Union Contribution Audits from Builder Volume 13, Issue 4
Paul E. Starkman
Chicago Partner Paul Starkman was quoted in Business Insurance Magazine, in an article entitled “Employer’s DNA test rule raises legal concerns.” The article appeared in the November 16 issue of the magazine, and looked at some of the legal issues that may be encountered if employers collect DNA from applicants to do
From Today’s Daily Labor Report: Legislation to Require Paid Sick Leave For ’Contagious’ Workers Introduced into House
 Social Media in the Workplace As an attorney working with companies whose employees use social media on a daily basis I have observed that companies often react after problems occur instead of dealing with new technology proactively through sensible employee policies. Whether employees are twittering, texting, facebooking, or blogging, employee handbooks may now need social media guidelines. Employees are likely using social media, during and after work. The risks and legal issues associated with such use, while still developing, are not to be ignored when revising employee handbooks in order to keep up with the ever-changing social media landscape. Potential legal issues abound, and employers must set clear guidelines for employees in order to avoid potential problems. Some areas to address are:
For some more thought provoking reading on social media in the workplace take a look at Lawsuits & PR Nightmares: Why Employees Need Social Media Guidelines. |
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