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Quick, Name Biggest Workplace Legal Issue of 2010 So Far

What is the biggest employment law challenge employers have been facing thus far in 2010? An easy answer might be health care reform since companies have indeed started wrestling with whether to grandfather their benefits plans or strike off in a new direction under new sets of rules and regulations.

But for many employment law attorneys who will be speaking at the Advanced Employment Issues Symposium (AEIS) in Nashville in September (and in Las Vegas in November), there is an even thornier situation causing more pressing problems for employers. Read on to get a sneak peek at their insights.

Attend the Advanced Employment Issues Symposium (AEIS)

Drumroll, please
One attorney who is holding back on declaring health care reform to be the “biggest development” for HR professionals in 2010 is Chattanooga employment law attorney Stacie Caraway of Miller & Martin PLLC. She will be part of the opening panel discussion at AEIS in Nashville titled “A Year of Sweeping Employment Law Change Hits HR: What It Means and What Comes Next.”

“Even if health care reform is [the ‘biggest development’], I don’t know at this point what actual form it is going to take, given the fact many states are contesting Congress’ right to do what it has done in this law,” Caraway says. As a result, she believes the truly biggest development — “because one of my clients is already being affected on a daily basis” — is the federal agency crackdown on employers under the Obama administration.

“All charge investigations are getting more intense, not because of the charges being any stronger — those I have seen this year actually have been some of the weakest in my experience,” Caraway continues. “Yet employers are being subjected to on-site interviews, etc., whereas in prior years the same and even stronger allegations would have been allowed by the EEOC to simply die on the vine.”

Employers can expect the various federal agencies charged with overseeing some aspect of the employment relationship to ramp up the number of inspections and investigations, agrees employment law attorney Susan Fentin of Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts. Like Caraway, Fentin will be part of the AEIS opening panel discussion.

OFCCP. Federal contractors, in particular, can expect to face desk audits scheduled by the Office of Federal Contract Compliance Programs (OFCCP), according to Fentin. “We have already started to see a crackdown in this area,” she adds, “with businesses that did not believe they were even required to have an Affirmative Action Plan (AAP) being asked to provide full data showing their compliance with this as-yet undeveloped AAP within a very short deadline.”

Fentin says some of the businesses insisted that they didn’t qualify as federal contractors or subcontractors, only to discover “to their chagrin and horror” that some obscure relationship with a federal agency had spurred the OFCCP request or that the language of some federal grant had required the agency to have an AAP. Since one penalty for failing to abide by the OFCCP‘s requirements is debarment from federal contracts, the agency’s increased efforts in this area may give more than one HR director some sleepless nights.

EEOC. Fentin points out that the Equal Employment Opportunity Commission (EEOC) also has been fully funded for the first time in years. “More funding will likely mean higher expectations by the Administration, which may be hoping that more litigation will ensue from EEOC investigations,” she adds.

DOL. The same should be true for the U.S. Department of Labor (DOL) Wage and Hour Division (WHD), which also has seen an increase in funding. Fentin says employers should expect that the government will be looking into wage and hour issues very closely to justify the need for further increased funding. “Anyone who has been through a wage and hour audit by the DOL will tell you that it is not fun,” Fentin adds. “Forewarned is forearmed in these areas.”

And the challenges for employers don’t end with the federal agency crackdown. Many state agencies are taking the same approach and scrutinizing employers’ actions much more closely than ever before, says AEIS panel moderator and Tulsa employment law attorney Charlie S. Plumb, a partner with the Oklahoma firm of McAfee & Taft.

Enforcement track
For the first time ever, AEIS will offer an “Employment Law Enforcement Track” that promises lots of guidance to meet Washington’s ramped-up workplace enforcement efforts head-on.

Separate sessions during the two-day event will focus on:

  • Keeping Up with the EEOC’s 2010 Enforcement Priorities
  • Immigration Enforcement: E-Verify, ICE Raids, and Other Issues for Employers
  • A Resurgent DOL Ramps Up Its Wage & Hour Investigations: Are You Prepared?
  • Get Your Workplace Safety Practices in Line with OSHA’s New Enforcement Efforts
  • Unions Rejoice: What the New Pro-Labor NLRB Means for Employers

“The ‘New NLRB’ might be tied for the biggest employment law development of 2010,” Chattanooga attorney Caraways says. That’s because the new Board “may try to implement through labor rulings a lot of the same initiatives that President Obama can’t get through Congress,” such as a modified version of the Employee Free Choice Act (EFCA). If you thought 2010 was an eventful employment law year, 2011 shouldn’t be without its moments, either, Caraway says.

Other hot topics
At AEIS, the opening panel will hit a number of other hot employment law topics, including new U.S. Supreme Court appointments earlier this year and new Americans with Disabilities Act (ADA) regulations that have been delayed for a while. Proposed regulations were issued last November, with an anticipated release of the final regulations scheduled for July. That month came and went, however, with the EEOC saying only that the release had been postponed to some undetermined date in the future.

“The regulations are important,” Fentin says, “because any cases that have percolated through the court system are, to date, based on the ADA prior to the January 2009 amendments, and it will be some time before cases interpreting the ADA Amendments Act actually surface. Meanwhile, the only guidance as to the implementation of the mandates in the legislation comes from the original proposed regulations, which may — or may not — be on target.”

Absent the final regulations, Fentin says employment counsel are generally using the proposed regulations as a guideline but hoping for “some more definitive guidance from the EEOC — and soon!”