What a Difference a Year Makes! The Obama Administration and Employment Law

Posted 01-12-2010

President Barack Obama has been in office for a year now, and there have been a lot of changes in employment law under his Administration. Here’s a list of the top ten:

  1. The Administration has substantially increased enforcement of existing labor and employment laws in the areas of minimum wage and overtime violations, federal contractor compliance, and employee/independent contractor misclassification. To support this effort, the U.S. Department of Labor alone is hiring nearly 600 additional inspectors and compliance officers.
  2. OSHA imposed its largest fine ever–$87.43 million in penalties to BP Products North America, Inc., for failing to correct problems that led to a massive explosion which killed 15 people and injured another 170. BP’s cost-based decision to replace live trainers with computer-led training was a substantial contributing cause of the disaster.
  3. Within ten days of his inauguration, President Obama fulfilled a campaign promise by signing into law the Lily Ledbetter Fair Pay Act, which makes it easier for employees to sue for pay discrimination based on sex, race, color, religion, disability, national origin, or age over 40.
  4. Under the December 9, 2009 Open Government Directive, government agencies are supposed to make more information available online. As part of that effort, OSHA now posts a weekly list of workplace fatalities, listed by employer name, date of incident, description of incident, and region in which the fatality occurred.
  5. The American Recovery and Reinvestment Act of 2009 (ARRA) provides a 65% premium subsidy for laid off employees who elect continued group health coverage under COBRA. In late December, the end date for eligibility was changed from December 31, 2009 to February 28, 2010 and the subsidy period has been extended to 15 months.
  6. The FMLA was amended twice this year. In October, President Obama signed legislation that expanded the military family leave provisions, and in December he signed another bill that corrected the FMLA to allow airline pilots and flight attendants to qualify for leave under the law. Before the correction, the courts had held that pilots and flight attendants had to have 1,250 hours of actual in-flight time to qualify for leave, despite federal aviation regulations that limit in-flight time for aircrews and prohibit pilots from flying more than 1,000 hours a year.
  7. Military contractors can no longer require their employees or contractors to arbitrate workplace sexual assault, battery and discrimination cases, but must allow such claims to go to court. This was the first major legislation by Senator Al Franken (D-Minn.) and was signed into law by President Obama in December as part of the 2010 Defense Appropriations bill. This amendment says that no money can go to a defense contractor unless the contractor agrees not to enter into or enforce any employment contract “that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration any claim under title VII of the Civil Rights Act of 1964,” or many tort claims.
  8. In its FY 2009 Performance and Accountability Report, the Equal Employment Opportunity Commission reported that it had obtained more than $294 million in monetary benefits for victims of discrimination, an all-time record. It also reported receiving 93,277 private sector charges, the second-highest number ever. To handle the increased workload, the agency has already hired an additional 125 investigators, 22 trial attorneys, 50 support staff, 10 paralegals and five expert statisticians and labor economists, and is poised to do more in 2010.
  9. Effective September 8, 2009, most federal contractors and subcontractors must use the E-Verify system to verify their new and current employees’ eligibility to work in the United States. E-Verify is a free, web-based system, operated by the U.S. Department of Homeland Security in partnership with the Social Security Administration, that uses the information reported on an employee’s Form I-9. For other employers, the use of E-Verify is voluntary, but immigration reform legislation currently before Congress would make E-Verify use mandatory for all new hires at all U.S. employers.
  10. Recognizing that although economic recovery may have started, unemployment rates are still at near-record level, President Obama signed legislation late in December that extends emergency unemployment benefits for up to an additional 20 weeks, depending on the state unemployment rate. Under ARRA, signed in February 2009, workers receiving unemployment benefits also get a $25 weekly economic stimulus payment.

What this means to you:

Now, perhaps more than ever, managers must be legally astute. Legal training cures the ignorance that attracts lawsuits, so a legally astute manager comes up with the right questions and then gets the answers as part of strategic decision making.

Since Congress was occupied for much of the year with health insurance reform, most of our Top Ten List was done through Presidential or agency action. But watch for Congress to take the stage in 2010 with legislation reforming labor law, extending discrimination protection to gay, lesbian, bisexual and transgender workers, mandating sick pay, and more.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:42+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.