labor lawAdivision of labor law center

Effective November 21, 2009 employers are required to display a new federal poster. Employers must display a GINA poster in an area where all employees can see it.

This new federal posting requirement applies to virtually every employer, even if they never engage in genetic testing.

GINA, of course, is the Genetic Information Nondisclosure Act of 2008. Under GINA, employers are prohibited from gathering information on an employee’s genetic makeup. Employers are also prohibited from considering an employee’s genetic information in making employment decisions.

Health insurance providers cannot discriminate against consumers, based on genetic information under GINA. For example, a health insurance company could not refuse to cover an individual, simply because her mother, grandmother and aunt all had breast cancer. Even if genetic testing showed that the consumer had a gene for breast cancer, that alone would not be sufficient cause for the health insurance company to deny her coverage.

The GINA prohibition on gathering genetic information also includes taking information on an employee’s family medical history – especially hereditary illnesses like heart disease, breast cancer, diabetes, arthritis, Alzheimer’s, and other inherited conditions.

GINA covers a wide variety of mental health conditions including depression, (more…)

Employment discrimination based on sexual orientation may well become illegal under federal law, if the ENDA bill currently being debated in Congress is passed.

Experts are predicting that the Employment Non-Discrimination Act or ENDA has an excellent chance of being signed into law within the next 12 months.

ENDA was introduced in the House by Representative Barney Frank of Massachusetts as H.R. 3017 in June 2009. More than 150 representatives have co-sponsored the bill.

Senator Jeff Merkley of Oregon introduced it in the Senate as S. 1584 where it garnered 39 co-sponsors.

The bill is currently being debated in the House Education and Labor Committee. President Barack Obama has expressed strong support for ENDA and urged Congress to pass it.

While a number of states including Washington, New Jersey, Illinois and California have laws that prohibit employment discrimination against homosexuals, there is no federal law at this point. In some states such as Oklahoma, an employer can legally pay homosexuals less than their heterosexual coworkers. An employer can even refuse to hire an applicant who is homosexual. ENDA would change that.

A number of gay rights organizations are opposed to ENDA (more…)

There are several changes in the Wisconsin labor laws that employers need to be aware of, including those regarding the Wisconsin family leave law, domestic partnerships, smoking ban, and discrimination .

On June 29, 2009 Governor Jim Doyle signed the Wisconsin domestic partnership law. The law, a portion of the state budget, permits registered domestic partners to enjoy the employment benefits currently offered to married couples. These include taking unpaid Wisconsin FMLA (called WFMLA) to care for a domestic partner with a serious health condition, and group health insurance coverage for partners.

The Wisconsin domestic partnership law goes into effect on August 3, 2009. Domestic partners will complete a declaration in their home counties, and can dissolve the partnership through a termination process at the county clerk’s office.  

So despite the fact that gay marriage is still illegal in Wisconsin, many gay couples will still benefit from the same privileges including being able to make end-of-life decisions for each other, and having hospital visitation rights.

The law also extends domestic partner benefits including health insurance to state employees.

Earlier in the year, (more…)

The EEOC on April 22, 2009 released guidelines of best practices for employers who have workers with personal care-giving responsibilities.

Many employment law experts take exception to this action by the EEOC. They point out that no federal (and few state) laws specifically protect caregivers from discrimination. One SHRM representative rather caustically remarks that the EEOC has enough to do, enforcing discrimination based on race, color, religion, national ancestry, sex, pregnancy, disability and age, without branching out into more controversial areas.

The EEOC, however, contends that most caregivers are covered under several existing laws including:

• The Americans with Disabilities Act, which prohibits discrimination based on association with a disabled person. This law would protect an employee who was caring for her developmentally disabled adult sister, or a grandparent who was in a wheelchair
• Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex or race, when caregivers are treated disparately. For example, an employer may assume that a female caregiver with a disabled child cannot travel, and therefore is not eligible for a promotion. Or, the employer may assume that a male employee cannot or should not have caregiver responsibilities.
• FMLA, the federal Family and Medical Leave Act, which permits employees to take up to 12 weeks of unpaid, job-protected leave to care for a parent, son or daughter or spouse with a serious health condition. Employers are legally required to notify the employee within 5 days of an absence that could qualify as FMLA. Instead, many employers deny time off to workers with care-giving responsibilities.

Even the EEOC admits that these guidelines are a bit of a reach. “Federal law (more…)

Since 2006, the EEOC has focused on a new type of discrimination in the workplace – discrimination against caregivers.

Now the EEOC has released  best practices to avoid caregiver discrimination. The 10-page document outlines steps employers can take to avoid this increasing type of illegal discrimination.

Employers should note that no federal law currently makes caregivers a protected class. However, the EEOC is increasingly investigating and in some cases filing suits on complaints from caregivers.

Caregiver discrimination is an easy mistake for the employer to make. Suppose Sue has two daughters under the age of 6. One of her daughters has special needs due to a congenital disability. Sue’s employer decides not to promote her to a regional sales position that requires travel, because of her personal situation. The employer assumes that Sue will be unable to travel, or will do a poor job in the new position, because of her caregiver responsibilities. This is illegal discrimination. Sue is losing out on a promotion she would otherwise receive, simply because she is associated with a disabled person – a type of illegal discrimination prohibited under ADA, the Americans with Disabilities Act.

Sue may also be the target of illegal discrimination based on sex under Title VII of the Civil Rights Act of 1964, if a male employee in the same situation would be promoted.

Caregiver responsibilities can include (more…)