IPMAHR Major City County Meeting

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IPMA-HR Major City County Meeting

• Washington Update
• By
• Neil E. Reichenberg
• Executive Director

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Dramatic Changes

• The White House, Senate and House of
  Representatives are all controlled by Democrats
  for the first time since 1994
• Senate Democrats are still shy of the filibuster
  proof margin of 60 votes
• Expect to see employee-friendly legislation and
  legislation supported by unions

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Economy

• Unemployment up to 7.2
• Actual unemployment rate is about 12
• In 2008, 2.6 million jobs were lost 1.9 million
  in the last 4 months
• By contrast, government employment increased by
  208,000 jobs
• IPMA-HR Public Sector Employment Outlook Survey
  found that 52 of respondents still planning to
  hire for new positions in 2009, with 1 hiring
  area being public safety
• More than double the of respondents indicated
  that they plan lay-offs this year as compared to
  last year
• 67 of respondents indicated they are keeping
  vacancies unfilled as compared to 31 in 2008

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Economy

• 825 billion stimulus package proposed by the
  Obama administration Congressional Democrats
• Combination of spending increases and tax cuts
• Package includes spending on education, aid to
  states for Medicaid costs, temporary increases in
  unemployment benefits public works projects
• This is in addition to the 700 billion financial
  bailout passed in October
• Expected to be passed by mid-February

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Economy

• National debt is 10.6 trillion growing by
  3.34 billion per day
• This fiscal year, the debt is expected to be over
  1 trillion
• National debt clock in Times Square is running
  out of space

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Regulation Freeze

• White House Chief of Staff Rahm Emanuel issued a
  memo Jan. 20 to all federal agencies and
  departments freezing any new or pending
  regulations drafted by the Bush administration.
  The memo states that no proposed or final
  regulation should be sent to the Federal Register
  for publication until it has been reviewed and
  approved by a department or agency head appointed
  by the new administration.

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Fair Pay

• Before President Obama was sworn-in the House
  passed the Ledbetter Fair Pay Act, overturning
  the Supreme Courts opinion in Lilly Ledbetter v.
  Goodyear Tire Rubber Co. Inc. (2007)
• Senate passed the measure January 22
• Eliminates statutes of limitation in cases where
  compensation is concerned
• Creates new right of action for aggrieved
  persons to file claim without filing an EEOC
  charge

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Fair Pay

• IPMA-HR opposed the legislation because it is
  likely to increase litigation without solving any
  underlying gender discrimination issues
• Next step EEOC will develop regulations
  implementing the new law

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Mandatory Collective Bargaining

• The Public Safety Employer-Employee Cooperation
  Act reintroduced
• The bills are expected to pass and be signed into
  law
• Strong support of labor unions IAFF and FOP

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Mandatory Collective Bargaining

• Requires states and localities to engage in
  collective bargaining with police, fire and
  emergency medical technicians
• Gives the Federal Labor Relations Authority
  (FLRA) the power to create regulations and ensure
  that states laws are substantially compliant

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Mandatory Collective Bargaining

• IPMA-HR has been a leader in the effort to oppose
  the bills, including testifying before a House
  subcommittee and meeting with House and Senate
  staff
• Concerns include the federalization of collective
  bargaining, increased costs, loss of local
  control over expenditures for public safety ,
  similar request for unionization by other
  employee groups

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FMLA

• One of the most important changes last year was
  the expansion of the FMLA for military families
• Two parts one allows caregivers 26 weeks of
  leave per 12 month
• period to care for
• injured/ill servicemember

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FMLA

• Second part allows eligible employees up to 12
  weeks of leave for any qualifying exigency
  related to a son/daughter, spouse or parents
  call to active duty
• Became effective January 16, 2009

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FMLA

• The Department of Labor also revised the current
  regulations making many changes to the notice and
  certification provisions
• Department said it lacked the authority to
  address the definition of a serious health
  condition or the use of intermittent leave

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Some of the changes to the regulations include

• Employers can provide perfect attendance awards
  without running afoul of the FMLA
• Holidays occurring within a full week of FMLA
  leave do not have to be considered
• HR can contact employees health provider
  directly to clarify or authenticate a medical
  certification (may not seek additional
  information)

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Intermittent leave issues

• Must be medically necessary and certification
  must indicate that it is medically necessary
• Increments same as used for other types of leave
  as long as not more than one hour. No need to
  account for time in 15 or 6 minute increments
• Employee must make a reasonable effort to
  schedule leave so as not to unduly disrupt
  employers operations

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ADA Amendments Act

• Effective January 1, 2009
• More reasonable than the originally proposed ADA
  Restoration Act
• Expands the definition of a disability by
  specifically rejecting several Supreme Court
  opinions

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ADA Amendments Act

• ADA defines disability as (1) physical or mental
  impairment that substantially limits one or more
  of the major life activities of such individual
  (2) a record of such an impairment or (3) being
  regarded as having such an impairment
• Amendments lowers the bar an employee must clear
  to establish ADA protection
• Substantially limited shall be interpreted broadly

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ADA Amendments Act

• ADAAA includes a non-exhaustive list of major
  life activities and lists major bodily functions
  that would be covered
• Need only show one major life activity impacted
  e.g. the ability to think
• Disabilities are considered in their untreated
  states e.g. if an individual successfully
  controls her diabetes with insulin she may still
  be disabled under the law

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ADA Amendments Act

• Expands the regarded as prong by allowing
  claims whether or not the disability
  substantially limits a major life activity
• Employers do not have to accommodate under the
  regarded as prong
• EEOC expected to issue regulations

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Genetic Nondiscrimination

• Last year the Genetic Information
  Nondiscrimination Act became law
• Prohibits employers from discriminating against
  employees and applicants on the basis of genetic
  information
• Bans the collection of genetic information except
  in very limited circumstances
• Effective November 2009

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Mental Health Parity

• In October 2008, mental health parity legislation
  passed as part of an economic rescue package
  -effective January 1, 2010
• Requires mental and physical impairments to be
  treated the same.
• It does not require health plans to cover mental
  health or addiction but if they do, the coverage
  provided must be equal to that provided physical
  impairments.
• The number of doctors visits, co-pays and
  deductibles must be the same for mental and
  physical impairments.

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Employee Free Choice Act

• Allows for card check by amending the NLRA to
  require the NLRB to certify a bargaining
  representative without an election
• Very controversial, supported by unions but
  generally opposed by employers as taking away the
  right to a secret ballot

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Employee Free Choice Act

• Passed the House of Representatives last year but
  failed to garner the 60 votes needed in the
  Senate to end debate
• More favorable conditions for passage this year
  but President Obama said last week that the
  economy comes first, without a strong economy
  there are no jobs to unionize

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E-Verify

• Legislation passed extending the current E-verify
  program to March 2009
• Employer groups successful in getting stay so
  that federal contractors do not need to use
  E-verify until February 20, 2009
• IPMA-HR has been working for common-sense changes
  to employee eligibility verification

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Cell Phone Policy

• Last year legislation was introduced to remove
  cell phones from listed property
• Congress ran out of time before it could be
  considered, expect it this year
• Currently employer-provided cell phones are
  considered a taxable benefit if used for personal
  calls. Employees must track calls and pay for
  individual calls as well as a pro rata share of
  the monthly fee

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Employment Nondiscrimination Act

• Last session, ENDA passed the House by a vote of
  235-184 not voted on in the Senate
• Prohibits employers from discriminating against
  individuals based on sexual orientation
  provision relating to gender identity was dropped
• This bill has the support of some major business
  groups

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Healthcare Reform

• President Obama pledged to address healthcare and
  we can expect legislation this year
• Reauthorization of SCHIP and possibly additional
  funds for state Medicaid programs underway
• Employer-based healthcare to be debated

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Supreme Court

• Supreme Court ruled January 26, 2009 that Title
  VIIs anti-retaliation provisions are triggered
  by an employers internal investigation
• Court unanimously overturned 6th Circuit and
  remanded for further proceedings
• Crawford v. Metro Government of Nashville and
  Davidson City, TN, Docket No. 06-1595

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Supreme Court

• In an unanimous opinion the court ruled that the
  First Amendment permits a local union to charge
  nonmembers for national litigation expenses as
  long as
• 1) the subject matter of the litigation is of a
  kind that would be chargeable if the litigation
  were local
• 2) the charge is reciprocal in nature
• Locke v. Karass

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Supreme Court

• 14 Penn Plaza LLC v. Pyett, Docket No. 07-581
  Court will review the enforceability of mandatory
  arbitration clauses

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Supreme Court

• Recently added a testing case to its docket
• Will decide when a city can refuse to certify the
  results of an exam that has an adverse impact on
  minority candidates
• Case arose from firefighter promotional exams in
  New Haven, CT
• Ricci et al. v. DeStefano, Docket No. 07-1428
• Opinions in above cases are expected prior to the
  Courts adjournment in June 2009.

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Additional Information

• Contact Tina Chiappetta, Senior Director of
  Government Affairs Communications
• Tchiappetta_at_ipma-hr.org
• 703/549-7100