Leave for an Exigency: Military exigency leave has been expanded to include active duty service members who have been deployed to a foreign country. Previously, exigency leave was limited to those in the Reserves or the National Guard.

Leave for an Serious Injury or Illness: Military caregiver leave has been expanded to include care for a service member who aggravates a prior injury or illness during the course of his military service. Previously, “serious injury or illness” did not include any condition that predate a service member’s active duty and that was aggravated by active duty.

Leave for Veterans: Military caregiver leave has been extended to include veterans who undergo medical treatment, recuperation or therapy for a qualifying injury or illness, as long as the service member was a member of the reserves or armed forces at any time during the five years before the veteran undergoes treatment. Previously, caregiver leave was not available to veterans. This provision will not be effective, however, until the Secretary of Labor defines the term “qualifying injury or illness” for a veteran.

The new version reflects current federal employment discrimination law, including the Americans with Disabilities Act Amendment Act of 2008, as well as a new section about the Genetic Information Nondiscrimination Act of 2008 (“GINA”) which becomes effective November 21, 2009. The supplement also contains an updated EEOC contact information.

The idea of a national worker ID card is embraced by some business and community organizations. However, it has touched off fears among some labor activists and the ACLU about civil rights violations and a “big brother” intrusion into private lives. Critics also cite the high costs that the ID card would involve as well as the difficulties in monitoring the nation’s 26 million employers for compliance with the systems. These opponents believe the best way to control the hiring of illegal workers is through enforcement of wage and labor laws, as well as strict fines to employers who hire those not authorized to work in the United States.

A Schumer aide said last week that the senator would probably present the worker ID card idea when he holds a hearing later this summer on employee verification systems.

The five-justice majority of the U.S. Supreme Court, without quite overruling Price Waterhouse, held that it would not extend the decision that an employee could show employment discrimination if he or she could show that age was a motivating — not determining — factor in the adverse employment action.

In stopping down the focus of proof of causation in ADEA cases to a rigid “but for” standard, which had previously been rejected by every U.S. Court of Appeals, the U.S. Supreme Court said:

“[T]he ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the ‘reason’ that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (1993) (explaining that the claim ‘cannot succeed unless the employee’s protected trait actually played a role in [the employer's decision-making] process and had a determinative influence on the outcome’ (emphasis added)). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision . . . We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”

The DISSENT argued that it was “particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction.”

The bad news is that this case buries Price Waterhouse for all intents and purposes, not just for the ADEA, but section 1981, Title IX and other employment discrimination cases not governed directly by Title VII. What it means now is that it has become more difficult for plaintiffs to prove causation under the ADEA.

Recently, in Lord Osunfarian Xodus v. The Wackenhut Corporation, No. 07 C 1431 (N.D. Ill. April 24, 2009), an applicant claimed his long hair was linked to his religious beliefs.  Specifically, the applicant for a security guard position claimed that he was denied a job because he refused to cut his dreadlocks.  The plaintiff asserted that his religious beliefs – Rastafarian/Hebrew Israelite – prohibited him from cutting his hair.  The Defendant corporation moved for summary judgment, arguing that the plaintiff never even mentioned his religious beliefs during his job interview.  However, the federal district court held that the plaintiff had stated a colorable case of religious discrimination because even though the plaintiff did not specifically identify his religion during the interview, he did state that he refused to cut his hair because of his “beliefs.” The court explained that a claimant is not required to identify a particular religion in order to prove religious discrimination. What it means for you — as an employee — is that once you introduce a concern that you cannot engage in certain conduct because of your belief system, it will be incumbent upon your employer to explore this issue and find out why.

In Burchette v. Abercrombie & Fitch Stores, 106 FEP Cases 266 (S.D.N.Y. 2009), the Southern District of New York reached a similar conclusion in allowing a plaintiff’s race discrimination claim to go forward . In Burchette, the plaintiff, an African-American female, claimed she suffered race discrimination when she was ordered to remove blonde highlights from her hair. When the employee asked if she could color all of her hair blonde, she was told she could not because it was not natural. According to the employee, Caucasian employees were allowed color their hair and not required to strictly comply with the policy. The employer sought to dismiss the case on grounds that the employee could not state a claim. The court denied the motion and allowed the case to proceed. What it means for you — as an employee — is that you may have a claim if your supervisor is not correctly applying company policies and making exceptions in appropriate cases. Furthermore, in the event a dress or grooming policy differentiates between male and female employees, your employer needs to make sure that the policy does not disproportionately impact one group more than the other.

Employment Eligibility Verification Form I-9

The test’s racially disproportionate results led New Haven to question whether it should validate the results.  The city, of course, found itself in a “damned if you do, damned if you don’t” position:  certify the test results, and face Title VII disparate impact litigation from minority applicants; fail to certify them, and face Title VII reverse discrimination litigation from the white officers who passed but were denied a promotion.  The city opted for the latter course, and, as expected, the white firefighters filed a reverse discrimination lawsuit.  The city prevailed on summary judgment at the district court level, and the Second Circuit affirmed.
 
The Supreme Court reversed, holding that the City’s action, in discarding the results of the examination, violated Title VII, in that it was “intentional discrimination” on the basis of race or “disparate treatment,” which is specifically prohibited by the statute.  The court noted that despite what otherwise would have constituted a “prima facie” showing of disparate impact race discrimination, several defenses were available to the city–namely that the exam at issue was job related, consistent with business necessity, and there existed no equally valid, less discriminatory alternative that suited the city’s needs but was not adopted. The Court went on to state that fear of litigation alone cannot justify an employer’s reliance upon race to the detriment of individuals who passed the examination and qualified for promotions.  Furthermore, before an employer can discard such an examination, it must have “a strong basis in evidence” to believe that it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action. 
 
Ultimately, the Ricci decision only represents a small victory for employers (despite the positioning here that held against the city/employer).  Employers can now take a somewhat more confident stand in backing test results that may demonstrate some disparate impact, so long as the test was objective and no other less discriminatory alternative exists.

Nevertheless, you — as an employee — still have rights. If you believe that you have been discriminated against or subjected to disparate impact treatment, please contact an employment attorney immediately.

The 65% reduction in COBRA premiums under the Federal stimulus law, the American Recovery and Reinvestment Act of 2009 (ARRA), also applies to mini-COBRA benefits.  Employees involuntarily terminated between July 10, 2009 and December 31, 2009, may take advantage of both mini-COBRA and the 65% premium reduction.  Unlike the entitlement to the ARRA premium reduction, Pennsylvania mini-COBRA will not expire at the end of 2009. 

There are several differences between Pennsylvania mini-COBRA and Federal COBRA:

Pennsylvania mini-COBRA, for example, applies to employers with 2-19 employees, whereas Federal COBRA applies to employers with 20 or more employees. Pennsylvania mini-COBRA provides continuation coverage for 9 months, but Federal COBRA provides continuation coverage for at least 18 months. To take advantage of Pennsylvania mini-COBRA, the individual must have been covered for at least 3 months, and for Federal COBRA, the individual is eligible if he or she is covered on the day of the qualifying event. Additionally, Pennsylvania mini-COBRA applies only to insured group health plans, whereas Federal COBRA applies to insured and self-insured group health plans. Finally, Pennsylvania mini-COBRA allows the employer to charge up to 105% of the group rate, and Federal COBRA allows the employer to charge up to 102% of the group rate.

A right to Pennsylvania mini-COBRA is triggered if one of these Qualifying Events occurs on or after July 10, 2009:  voluntary or involuntary termination of employment or reduction in hours; dependent’s loss of eligibility; death of the covered employee; or the employee’s entitlement to Medicare.

To be a Qualified Beneficiary under mini-COBRA, an individual must be an enrolled employee (or his/her dependent) who was covered under the employer’s group medical plan for three months before the event; not be Medicare-eligible; and not be eligible for, or covered by, another private group health plan.

Following a Qualifying Event, employers subject to mini-COBRA must notify each Qualified Beneficiary (and the insurer) within 30 days of the event.  The Qualified Beneficiary has 30 days after receiving notice in which to elect mini-COBRA.  If continued coverage is elected, the employer must notify the insurer within 14 days.

Notice may be based on the model notices provided by the U.S. Department of Labor (DOL), but it must be modified to conform to the provisions of the Pennsylvania law.  The Pennsylvania Insurance Department and Department of Labor & Industry are working to have model notices available as soon as possible. 

Insurers must provide notice of the new mini-COBRA law to policyholders by August 24, 2009.  Group policies renewed or issued after June 10, 2009 will include a description of mini-COBRA rights. 

If you believe that you are a Qualified Beneficiary, please make sure that your employer discuss with you the obligation to provide Pennsylvania mini-COBRA and that you receive a mini-COBRA election notice from your employer.