There’s no denying it—the Americans with Disabilities Act can be complicated for employers, particularly when other leaves and protections—such as Family Medical Leave and Workers’ Compensation—become part of the picture. To help employers deal correctly with the issues, the U.S. Equal EOC is offering what it summarizes as a “cross-country tour” in September to explain and discuss the Americans with Disabilities Act Amendments Act (ADAAA).
Two EEOC Commissioners, Chai Feldblum (D) and Victoria A. Lipnic (R), will conduct the training sessions in four different locations around the country:
- Sept. 11 in Seattle (Doubletree Seattle Airport)
- Sept. 13 in Los Angeles (Four Points Sheraton Los Angeles Airport)
- Sept. 18 in Boston (Colonnade Hotel)
- Sept. 20 in Miami (Hilton Miami Downtown)
The sessions are geared to employment law practitioners, human resources professionals and equal opportunity/diversity specialists. The EEOC also notes that the topics will be helpful for a manager dealing with reasonable accommodation issues.
Each session is offered to the public at an introductory price of $199 per attendee. The Commissioner’s presentation will comprise the morning portion of the day. After a lunch presentation, the afternoon sessions will focus in depth on the interplay of the ADA, FMLA and Workers Compensation.
These sessions are offered in addition to the EEOC’s current training schedule, which includes technical assistance seminars in Indianapolis and Cleveland, as well as Advanced EEOC Workshops in Washington, D.C.
Mary McIver, Director of the EEOC Training Institute said in a statement that the trainings were a “logical outgrowth” of the EEOCs focus on education and discrimination prevention. “The more American employers understand how to comply with the ADAAA, the less confusion and misunderstanding there will be over workplace accommodations – and that’s a win-win for everyone.”
To learn more, sign up, or find out about other upcoming training, employers should visit the EEOC Training Institute on the web.
Cases filed under the Fair Labor Standards Act have been increasing over the past five years, according to recent research from law firm Seyfarth Shaw.
The law firm found that there has been a “steady increase” in the number of wage and hour type cases filed since 2008, with over 7,000 cases in the 12-month period between March 2011 and March 2012. In contrast, cases filed in the ‘90s through the early 2000s averaged about 2,000 a year, meaning the current level of lawsuits is approaching four times the number filed just a few years ago.
In an article originally published in the Blog of Legal Times, Seyfarth partner Richard Alfred speculated the recent rise in claims could be due to the difficult economic conditions and the rising unemployment rates, with those who lost their jobs exploring their legal options.
Alfred said that plaintiff’s lawyers sometimes target wage and hour law because it can be complex and difficult for employers to interpret—meaning unintentional errors may become extremely costly for the employer. Beginning in 2003, Alfred noted, a few large settlements were won in the age and hour arena, highlighting this area of law as one to target because of the relative ease of bringing class lawsuits against employers.
It doesn’t seem as if there will be a decrease in claims any time soon, so what should employers do to protect themselves?
- Stay updated with changes in legislation.
- Document, document, document. Accurate records are essential for your defense.
- Consult a specialized attorney if you have questions regarding FLSA compliance.
- Investigate and thoroughly assess employees’ complaints to ensure your practices are sound.
- Conduct regular audits.
You still may not be able to avoid claims, but by doing everything possible to safeguard against them, you can at the very least reduce liability from 3 years—for a willful violation—to 2 years.
The ERISA advisory council will hold a meeting on August 28-30, 2012 to discuss several key issues related to the Act, including managing disability risks in an environment of individual responsibility; current challenges and best practices concerning beneficiary designations in retirement and life insurance plans; and examining income replacement during retirement years in a defined contribution plan system.
Organizations and individual members of the general public are welcome to attend the meeting to add input to any of the areas of discussion. But you don’t have to attend to have your views heard—simply submit a written position statement on one or more of the items. If you’re interested in addressing the council or submitting a statement, you have until August 14, 2012 to email your request to the council’s executive secretary Larry Good at firstname.lastname@example.org, or 202-693-8668.
The council meeting is open to the public. If you’re interested in attending, it will be held in Room C5521-4 at the following address:
Labor Department Headquarters,
200 Constitution Ave. NW,
Washington DC 20210
For more information about the ERISA council, see the following link from the Department of Labor website: http://www.dol.gov/ebsa/aboutebsa/erisa_advisory_council.html.
There are more than 75 million baby boomers in the U.S., and another boomer turns 60 every eight seconds. It’s estimated that by 2030, 70 million Americans will be 65+ (double the amount in 2000) and will comprise 20-25% of the US population.
If your organization is like most in the U.S., the baby boomers probably comprise the majority of the workforce. But with nearly a quarter of boomers saying finances are their biggest challenge, it’s far from a foregone conclusion that the boomers will leave the organization once they reach retirement age.
But the phenomenon of baby boomers remaining in the workforce is a definite trend. In fact, 14 percent of boomers say they will never retire, with an additional 28 percent saying they will work as long as their health permits. With the average baby boomer expecting 30+ years of retirement eligibility, some workers simply cannot afford to quit. And even when finances are not a concern, a large percentage of boomers intend to keep working after retirement to stay active.
While many employers are concerned about the impact of the potential “brain drain” as the boomers depart the workforce, other companies—struggling in the current economy—were counting on savings from vacancies left by the baby boomers. When those employees decide not to leave, it creates a bigger problem for the organization.
Even though it’s technically permissible to ask about retirement plans, employers should be extremely cautious about being perceived as encouraging employees to retire. The EEOC takes a dim view of what they see as pushing older workers toward retirement, and has set a precedent of prosecuting such types of case.
This, of course, makes it difficult to plan for the future—a necessity for operations. So if you really need to know, stick to some simple best practices:
- Only ask if you have a good reason—and explain that reason to the employee.
- Once you’ve asked, don’t keep asking—it could seem as if you’re pressurizing the employee.
- Don’t coerce the employee into retiring, question his or her decision or criticize his/her choice. Ultimately, retirement is the worker’s decision to make.
- Don’t try to “persuade” the employee to retire by taking some form of adverse action, like a less desirable assignment or refusing to train them.
Other options for workforce planning include using metrics to assess the average retirement age, average length of service with the company and average amount of retirees per year. While every case is different, assessing the trends can help you monitor the workforce and plan for the future.
For more information, please visit our website www.laborlawcenter.com or call (800) 745-9970
In Symczyk v. Genesis Healthcare Corp. (2011) the Supreme Court will decide whether plaintiffs can invite others to join a suit, even once the employer has made an offer of judgment.
In the case, Symczyk, a nurse, claimed her employer made staff members work through lunch without compensation, violating the FLSA. Symczyk sued, and asked the trial court to invite other, similarly situated employees to join the case.
The employer tried to put a stop to the “invitation” aspect of the case by making a formal offer of judgment to end the lawsuit. The employer offered to pay all the alleged unpaid wages—approximately $7,500—and attorney fees and costs as determined by the court. While Symczyk didn’t dispute the offer was adequate, she did not accept it.
The employer argued that Symczyk should not be allowed to continue to prosecute the action on behalf of other employees, since the offer of judgment meant she no longer had a stake in the litigation.
Symczyk objected to the arguments and what she viewed as the employer’s strategic maneuver to “pick her off” before the court could notice other potential plaintiffs in the case.
The trial court, however, agreed with the employer and dismissed the lawsuit. Symczyk appealed, and the 3rd U.S. Circuit Court of Appeals agreed with her, stating that the employer had used the offer of judgment as “a tool for the strategic curtailment of representative actions.”
Whether the Supreme Court will agree that such tactics are impermissible will be decided later this year. Stay tuned for updates to the case.