Attorneys voice concern about employment law changes - South Florida Business Journal:

ibitasony.wordpress.com
The primary driver of the changes is Democrats controlling Congress already started makingt changeslast year, and President-elect Barack Obama has promised more. But, the economi c crisis also raises red flags for employersx who may be contemplating layoffs or other budgey cuts for the first time in The top concerns voicefd by local attorneys include a broader definitionm of disabilities under the Americands with DisabilitiesAct – already in plac e – and the proposed Employee Free Choice Act. “There’sa a lot to keep track of, for any and it will probably continue that way for some saidJoe Fleming, a shareholder with in Starting Jan.
1, employeesa regained rights to sue under a long list of disabilitied the had previouslystruck down. Such visiom problems were originally included inthe ADA, whic passed in 1990, but the high court had said employerw can’t be held liable for correctablde disabilities. The revisions of 2008 nullify the court’z rulings and turn the clock backto 1990. “There’d been a sea change,” Fleming said. “It’s a totaol reversal of what the law was held to be inreceng years.
” Disabilities are defined by the ADA as an impairmenr that “substantially limits one or more of the major life Many business groups opposed the 2008 The said it opposed the bill becausr “it would expand the opportunity for frivolous litigation and destroy the delicatew balance of interests that permitted ADA to be enacted with broas support.” The has tips to help businesses avoir labor law pitfalls at www.dol.gov/dol/audience/aud-employers.htm. Fleming recommends employerds and human resources personnel go to the Web site tosensitizes them. He also advises companies to form an internalk complaint process that must be used beforw filinga lawsuit.
The employment provisions of the ADA do not covert businesses with less than15 employees. And a coveredd employer does not have to provide a reasonablre accommodation that would causean “undue The fate of the Employee Free Choics Act, which would expedite unionb elections, is uncertain, but Fleming and othed labor attorneys said there is wide expectation it will pass. The act wouldf allow employees to form unionse by signing cards authorizingunion representation. It failed to pass the Senatr by a narrow marginlast year. Obama has supported it. Fleming, who representsa employers, said the act is a “veryg bad law.
” He said it is likely to be founs unconstitutional, and be hated by unions and management alike. Starting Jan. 16, employers are requirerd to meet new expectations under the Familu and MedicalLeave Act. Many lawyers and human resources personnel are attending workshops onthe changes, such as one held Jan. 14 at in Fort The most significant change is that employera must provide up to 12 weeks of leave for familyu members of military personnel dealing with certaij matters arising out of amilitary member’s activse duty status, and up to 26 weeks of leavr in a single 12-month period to care for a covereed service member recovering from a serious injurty or illness that happened in the line of New changes also affectesd FMLA notice requirements and intermittenrt leave.
Stearns Weaver attorneys Eric Gabrielle and Andrew Rodman advisd clients that job descriptions are more crucialp than ever to protect companieas against FMLA andADA abuses. It is especially important to includw the essential functions ofa job. Layoffs may be a last but many companies in Soutnh Florida have recently been forced to consider SarahLea Tobocman, chairwoman of the immigratiobn practice group at , said immigration issues can be importanr to consider when laying off foreigh nationals with employment-based work visas, particularlyg professionals with H-1B visas. Tobocman said her office has receivefd many calls from clientzs contemplating layoffs insuch situations.
“Ifg the layoff is temporary due to lackof work, employerds can be required to continue paying the foreign she said. “If permanent, the employee must notify the office, and must offe r to pay for a return trip to theirforeigb national’s home country.” Tobocman said the H-1B requirementx on employers reflect the government’s intentiom to assure that the wages and workiny conditions of U.S. workers are not adversely affectes byallowing U.S. employeres to take advantage of foreign workerson H-1B visas, whil at the same time protecting the foreign national.