EEOC ISSUES HIGHLY-ANTICIPATED GENETIC INFORMATION NONDISCRIMINATION ACT (GINA) EMPLOYMENT REGULATIONS
On Wednesday, the U.S. Equal Employment Opportunity Commission (EEOC) proposed rules to implement the employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA). "The addition of genetic information discrimination to the EEOC's mandate is historic, and represents the first legislative expansion of the EEOC's jurisdiction since the Americans with Disabilities Act passed in 1990," said Acting EEOC Chairman Stuart J. Ishimaru.
GINA prohibits discrimination on the basis of genetic information in employment and health insurance. Specifically, the law prohibits: (1) unauthorized or required genetic testing of workers by employers and insurers; (2) employers from seeking out genetic information about employees; and, (3) employers from disclosing genetic information about employees and using genetic tests to discriminate against workers in hiring, firing, and other employment decisions. GINA's employment law provisions become effective November 21, 2009, while its health insurance benefits generally begin on May 21, 2009.
A 60-day public comment period for the new employment provisions commenced on February 25, 2009, and the EEOC has reported the notice of proposed rulemaking would be published in the Federal Register by Friday, February 27, 2009.
Included in the proposed regulations is a stipulation that employers will not be punished for neutral policies that have a disparate impact on employees with genetic diseases. Moreover, the final rules will clarify instances where employers "inadvertently acquire or disclose" genetic information and may be exempt from liability.
Regulations, rules, stipulations, and exemptions aside, GINA opens a brand new door to employee discrimination claims, and increased litigation is predicted by most. Prior to the November 21, 2009, effective date, employers should familiarize themselves with this new field of potential liability and carefully review and consider GINA's responsibilities and restrictions. At first glance, many employers will likely believe GINA will not influence their specific workplace and is very commonsense. Consider this: a manager who visits a sick employee in the hospital and learns the employee's malady has a genetic basis would not have obtained that information inadvertently.
The potential for inadvertent acquisition or disclosure is not implausible given GINA's definition of "genetic information," which includes "the manifestation of a disease or disorder in family members"; and, because GINA does not require a knowing acquisition or disclosure to support a claim. Employer advocates will certainly take advantage of the impending 60-day public comment period to attempt to further clarify many of these alarming concerns.
Basham Parker LLP will continue to provide updates related to the Genetic Information Nondiscrimination Act of 2008 as they develop. For additional information, please visit our website at http://rs6.net/tn.jsp?t=annspycab.0.0.rre7uhcab.0&ts=S0387&p=http%3A%2F%2Fwww.bashamparker.com%2F&id=preview.
Friday, February 27, 2009
Monday, February 16, 2009
FEDERAL AND CALIFORNIA STATE WARN LEGISLATION
As the national economy continues to deteriorate, an unparalleled number of businesses have been financially devastated, many to the point of closing operations, and others facing the unpleasant realization of mass layoffs. The U.S. Labor Department recently reported 21,137 mass layoffs took place in 2008, resulting in the termination of more than 2.1 million workers. As employers analyze the advantages and disadvantages of mass layoffs and strategize the least laborious manner to implement cutbacks, it is also essential they familiarize themselves with the legal responsibilities associated with these decisions.
Enacted in 1988, the Federal Worker Adjustment and Retraining Notification ("WARN") Act requires covered employers give affected employees at least 60-days notice of a plant closing or mass layoff. Fifteen years later, the California Legislature created an additional obligation for California employers to consider when conducting layoffs and plant closings in the form of the "Baby-WARN" Act. Although similar to the companion federal law in many respects, Baby-WARN extend coverage to businesses with as few as 75 employees and to layoffs of 50 or more employees regardless of the size of the business. In contrast, WARN applies to businesses employing 100 or more full-time employees and to layoffs of 50 or more full-time employees, if the layoff affects 33% of the workforce at a single site or 500 or more people at a single site, during a 30-day period. While the federal statute was accompanied by extensive regulations and guidance from the U.S. Department of Labor, the California legislation passed with little guidance.
Employers who fail to provide the required notice face potential class-action litigation with severe damages and penalties. On February 9, 2009, dynamic random access memory (DRAM) maker Qimonda AG was stricken with a putative class action filed by former factory employees who claim the company violated the Federal WARN Act by failing to give them proper notice before shutting its Virginia plant. (Blair et al. v. Qimonda North America Corp. et al., Case Number 09-CV-00073, in the U.S. District Court for the Eastern District of Virginia.)
According to the current complaint, at least 1,000 workers at Qimonda's Virginia facility were adversely affected by the company's failure to give notice prior to closing the plant on February 4, 2009. Plaintiffs' allege Qimonda failed to pay wages, make pension and 401(k) contributions, and provide health insurance coverage for the 60-day period following their dismissal, in violation of the WARN Act.
The plaintiffs are seeking damages equal to the sum of unpaid wages, salary, commissions, bonuses, accrued holiday and vacation pay, and pension and 401(k) contributions for 60 working days. They also are asking for health insurance coverage and other fringe benefits under the Employee Retirement Income Security Act (ERISA) for 60 working days, attorneys' fees and other costs.
Employers wishing to avoid the harsh realities now facing Qimonda should (1) carefully consider the potential legal ramifications associated with layoffs and other employment decisions made during difficult economic times and (2) always consult with knowledgeable and experienced employment counsel making similar determinations.
As the national economy continues to deteriorate, an unparalleled number of businesses have been financially devastated, many to the point of closing operations, and others facing the unpleasant realization of mass layoffs. The U.S. Labor Department recently reported 21,137 mass layoffs took place in 2008, resulting in the termination of more than 2.1 million workers. As employers analyze the advantages and disadvantages of mass layoffs and strategize the least laborious manner to implement cutbacks, it is also essential they familiarize themselves with the legal responsibilities associated with these decisions.
Enacted in 1988, the Federal Worker Adjustment and Retraining Notification ("WARN") Act requires covered employers give affected employees at least 60-days notice of a plant closing or mass layoff. Fifteen years later, the California Legislature created an additional obligation for California employers to consider when conducting layoffs and plant closings in the form of the "Baby-WARN" Act. Although similar to the companion federal law in many respects, Baby-WARN extend coverage to businesses with as few as 75 employees and to layoffs of 50 or more employees regardless of the size of the business. In contrast, WARN applies to businesses employing 100 or more full-time employees and to layoffs of 50 or more full-time employees, if the layoff affects 33% of the workforce at a single site or 500 or more people at a single site, during a 30-day period. While the federal statute was accompanied by extensive regulations and guidance from the U.S. Department of Labor, the California legislation passed with little guidance.
Employers who fail to provide the required notice face potential class-action litigation with severe damages and penalties. On February 9, 2009, dynamic random access memory (DRAM) maker Qimonda AG was stricken with a putative class action filed by former factory employees who claim the company violated the Federal WARN Act by failing to give them proper notice before shutting its Virginia plant. (Blair et al. v. Qimonda North America Corp. et al., Case Number 09-CV-00073, in the U.S. District Court for the Eastern District of Virginia.)
According to the current complaint, at least 1,000 workers at Qimonda's Virginia facility were adversely affected by the company's failure to give notice prior to closing the plant on February 4, 2009. Plaintiffs' allege Qimonda failed to pay wages, make pension and 401(k) contributions, and provide health insurance coverage for the 60-day period following their dismissal, in violation of the WARN Act.
The plaintiffs are seeking damages equal to the sum of unpaid wages, salary, commissions, bonuses, accrued holiday and vacation pay, and pension and 401(k) contributions for 60 working days. They also are asking for health insurance coverage and other fringe benefits under the Employee Retirement Income Security Act (ERISA) for 60 working days, attorneys' fees and other costs.
Employers wishing to avoid the harsh realities now facing Qimonda should (1) carefully consider the potential legal ramifications associated with layoffs and other employment decisions made during difficult economic times and (2) always consult with knowledgeable and experienced employment counsel making similar determinations.
Subscribe to:
Posts (Atom)
