The Year In Review: Labor & Employment Law Update 2009

• Overtime/EE Classification.  Case law continues to mold and shape what employers must do to comply with current state and federal laws regarding fair pay standards. 
  • How to comply with overtime, rest and meal periods continued to be in the spotlight for legal cases.  What was often times key for clarifying what an employer's responsibilities were well written workplace policies, and employer practice for providing opportunities for and permitting employees to take duty-free time off during the workday for lunch and rest periods.  (See Brinker Restaurant Corp. v. Superior Court of San Diego)
  • Further, the courts provided good news for employers and advised that employers need not ‘police' the workplace in order to assure meal periods are taken. (See Brinkley v. Public Storage, Inc)
  • Multi-state employers, on the other hand, should be very careful to observe state laws controlling who is entitled to rest breaks and overtime – even if the employee does not reside in a particular state (such as California) visiting that state can invoke a legal obligation to comply with local wage and hour laws. (See Sullivan v. Oracle Corporation)
• Minimum Wage.  Federal minimum wage increased to $6.55 on July 1, 2008 and on July 1, 2009 will increase to $7.25.  (See Fair Labor Standards Act)
• Computer Professionals.  Computer professionals earning at least $75,000/year are exempt from overtime (rest and meal period as well) laws in California. (See California Department of Industrial Regulations Memorandum)

• Criminal Arrests. Employers should stray away from applications which ask for the disclosure of certain criminal arrests/detentions which don't result in convictions. (See Starbucks v. Superior Court)
• Fair Credit Reporting Act. An issue of growing concern in background checks, employers seeking credit reports for applicant background inquiries will need to comply with stricter guidelines of the Fair Credit Reporting Act, namely advising applicants/employees of the extent to which you are performing certain credit checks. (See here for more details.)
• Family Medical Leave Act – Changes Effective 1/1/09
  • Along with expanded eligibility rules, employers cannot force employees to use paid time off benefits while out on FMLA eligible leaves.
  • Also, employees are not required to articulate they want a "FMLA" leave, employers have the duty to identify what qualifies as protected leave. (See FMLA Article above and Final 2009 Regulations)
• ADA Protections Expanded
  • Identifying who is considered "disabled" now more complex. Bodily function impairments and disability from engaging in a broader circle of  "major life activities" are to be considered and mitigating measures such as wrist harnesses and glasses will not lessen workplace protections for employees regarded as ‘disabled'. (See EEOC Guidelines re ADA Changes)
• ADEA Burden Shifting
  • Employer has duty to prove policies which appear neutral but result in a workplace disparity to a certain class or group of employees.  No longer does the lion's share of proving the plaintiff's case rest with the plaintiff. (See Meacham v. Knolls Atomic Power Laboratory)
  • Employees may not pile on evidence of employer discrimination by finding other employees from unrelated departments/branches/locations who also have workplace beefs. (See Sprint v. Mendelsohn)
  • Employees filing formal charges and mere intake questionnaires lodging complaints of age discrimination with the EEOC have met their obligation for first bringing administrative claims prior to filing civil actions. (See Federal Express v. Holowecki)
• Retaliation
  • Section 1981 Retaliation Claims: Longer Statute of Limitations for federal  claims alleging workplace discrimination. (See CBOCS West, Inc. v. Humphries)
  • ADEA interpreted as permitting retaliation claims. Employees who bring claims of age discrimination and then are subjected to retaliation for exercising this right are also protected--- even though the statute of the Age Discrimination in Employment Act does not specifically permit such. (See Gomez-Perez v. Potter)