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Top Ten Developments in Employment Law for HR Professionals in Virginia — #10

Published by on January 4, 2010

We begin the year with the top ten developments in employment law for HR professionals in Virginia for 2009.  They are in no particular order.  We start with Number 10:  Proposed Legislation.  More after the break. Here are a few pieces of proposed legislation that might impact employers in the coming year if enacted: a.      […]

We begin the year with the top ten developments in employment law for HR professionals in Virginia for 2009.  They are in no particular order.  We start with Number 10:  Proposed Legislation.  More after the break.

Here are a few pieces of proposed legislation that might impact employers in the coming year if enacted:

a.      Employment Non-Discrimination Act:  This bill would prohibit employment discrimination and retaliation on account of an individual’s “actual or perceived” sexual orientation and gender identity.  It would also prohibit employers from taking an adverse employment action against an employee “based on the actual or perceived sexual orientation or gender identity of a person with whom the individual associates or has associated.”  The Act would not allow disparate impact claims based on sexual orientation or gender identity.  The Act would also not interfere with employers’ rights to establish “reasonable dress or grooming standards” and to limit access to shared shower/dressing facilities.  Finally, the Act would not require employers to submit statistics on actual or perceived sexual orientation and gender identity on EEO-1 forms.

b.      Employee Free Choice Act:  This proposed legislation, introduced in March 2009, would essentially make it easier for unions to organize.  Under the current law, a secret-ballot election is required before a workforce can unionize.  Under the proposed Act, these elections would no longer be necessary.  As long as a majority of employees sign “check cards”, the workforce will be unionized.  In addition, the Act would change the process by which the union and the employer reach an agreement.  If an agreement is not reached after the initial required period of good faith bargaining, the parties must engage in mediation.  If that fails, they will be subject to binding arbitration by the Federal Mediation and Conciliation Service, a federal agency that will determine the terms of the agreement.

c.      Proposed Bill in Response to H1N1:  Last month an emergency bill was introduced that would give employees up to 5 paid sick days when they are asked to stay home by their employer.  The bill covers the H1N1 flu as well as other infectious diseases.  If enacted, the bill would be set to expire in 2 years.

d.      New Proposed ADA Regulations:  The proposed regulations for implementing the ADA Amendments Act are now available.  The regulations affirm the expanded definition of a “disability” and list specific impairments that will automatically be regarded as disabilities without a showing of a substantial limitation in a major life activity.  Some of these include:  deafness, blindness, missing limbs, cancer, HIV/AIDS, diabetes, and severe mental disorders like schizophrenia.  The regulations also change what constitutes “regarded as” discrimination by providing that an employee who is subject to an adverse employment action because of an actual or perceive impairment, or symptoms of an impairment, will satisfy the “regarded as” definition unless the impairment is a minor, temporary one.  The regulations also state that employees who are only “regarded as” having a disability are not entitled to a reasonable accommodation.

[I would like to thank my associate Claudia Guzman for her assistance in preparing the top ten materials for 2009.]

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