Electrical Association

5 employment law issues to watch out for in 2010

Written by Doug Seaton and Emily Ruhsam

Health Care

If healthcare reform is passed, here are a few issues that may arise for employers:
• Requirements for employers with more than 50 employees (5 in construction!) to offer health insurance to employees;
• Changes to preexisting conditions limitations;
• Dependents being covered until a later age;
• Required changes to summary plan descriptions;
• Significant tax increases.

The COBRA subsidy, which was originally set to expire on December 31, 2009, has been extended through February 28, 2010. The subsidy extension allowed for an additional six months of premium assistance for Assistance Eligible Individuals and tax credits for employers; therefore, Assistance Eligible Individuals are entitled to fifteen rather than nine months of coverage. (Notices should be revised accordingly.) Congress may be poised to pass another extension.

Contagious Illnesses

In 2009, the H1N1 sparked debate among employers about the best way to manage contagious illnesses in the workplace. One of the ways employers can help prevent uncertainty in the workplace surrounding these types of pandemics is to consider implementing a contagious illness policy. These policies can help employers wanting to have a consistent and predictable response for all contagious illnesses and avoid the risk of discrimination claims.

Pay Discrimination

In 2009, many employers took measures to cut costs by either reducing hours or laying off employees. This increased potential exposure for potential litigation ranging from wage and hour disputes to discrimination claims, especially now that pay discrimination claims, under the 2009 Lily Ledbetter Act, can be brought much later than previously. Any employer that has not recently reviewed and revised its layoff, overtime and payroll policies and procedures should do so in 2010, thereby ensuring that it meets all federal and state laws and rules and reduces the risk of back-pay claims.

Enforcement and Penalties Ramping Up

With many new pro-employee officials nominated for positions at the Department of Labor, Wage and Hour Division, OSHA, OFCCP, and other departments, and their investigative budgets increased, employers should be aware that investigations and fines will be on the rise in 2010. For example, in 2009, OSHA assessed its largest fine in its history against BP of North America. OSHA issued the $87.4 million dollar fine after an explosion injured and killed a number of employees (for what OSHA called BP's failure to correct potential hazards). An employer's best defense for all types of investigations and audits is to implement and continually update its policies, training and procedures.

E-Verify and No Match

President Obama has stated that he fully supports E-Verify and has required that recipients of the stimulus package using E-Verify have continuous eligibility for funding. In 2009, the Department of Homeland Security reversed the 2007 No Match Rule under which employers formerly received notice of social security numbers which didn't "match" the employee. Immigration reform remains on the agenda and the debate may be reignited if healthcare reform is passed.
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Doug Seaton and Emily Ruhsam are attorneys with Seaton, Beck & Peters, P.A., "The Lawyers For Employers." The firm has been a member of the association for many years and dedicates its practice to advising and representing employers in handling every type of labor, employment, and human resources law issue, problem, planning need, audit, dispute, complaint, charge or lawsuit.