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Employment Law Updates

June 8, 2010

FLSA Amendment re: Lactation
Effective March 23, 2010, the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (FLSA) to require covered employers to provide breaks and space for nursing mothers to express breast milk. With minor exceptions, all employers covered by the FLSA and employing 50 or more employees must provide reasonable break time each time that an employee has a need to express breast milk.  Space provided for expressing milk must be somewhere, "other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public." Breaks need not be paid, but employers should remember that federal regulations on rest breaks provide that short breaks must be counted as time worked for payroll overtime eligibility.

Retail Work Breaks
Effective March 1, 2010, certain retail employers will need to offer nonworking or working shift breaks under specific circumstances.  The law applies to those employers in the retail industry with 50 or more employees in at least 20 calendar weeks of the year.  Wholesalers, restaurants, or corporate offices are not affected.  Employees working between 4 and 6 hours at a time must be given a 15 minute nonworking break.  Employees working between 6 and 8 hours are entitled to a 30 minute nonworking break.  Employees working over 8 hours must receive a 30 minute nonworking shift break plus a 15 minute nonworking shift break for each additional 4 hours of work.  Employers who violate the break provisions are subject to a series of increasing fines for each violation as well as civil monetary penalties.

DLLR to Prosecute Wage Claims
Effective October 1, 2010, the Commissioner of Labor & Industry can enforce wage claims under $3,000.  This new authority allows the Commissioner of Labor and Industry to issue an order to pay wages after receiving a complaint.  If the employer fails to pay wages as ordered, the Commissioner may bring a civil action in Maryland District Court to enforce the order.

Federal Contractors Employee Hiring Requirement
On January 30, 2009, President Obama signed Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts.  This order establishes a federal policy under which contractors looking to obtain existing federal contracts for the same or similar services at an existing location must agree to offer employment to certain persons employed by the predecessor contractor.

The Department of Labor ("DOL") published proposed regulations implementing this order on March 19, 2010.  Under the proposed regulations, a successor to a government contract cannot fill any job to complete a contract without first making good faith offers to qualified employees of the predecessor contractor.  Failure to comply with the regulations may cause the contractor to be debarred for up to three years.  In addition, the DOL is authorized to investigate violations and order sanctions and remedies, including payment of lost wages for employees that should have been hired.

EEOC Enforcing Proposed Regulations on ADA
In late 2009, the EEOC published proposed regulations implementing statutory amendments to the ADA that have been effective since January 1, 2009.  No final regulations have been published to date.  Absent final regulations, however, the EEOC has been enforcing the proposed regulations.  Most striking among the proposed regulations is that the definition of a disability has been significantly broadened and will likely encompass a wider class of individuals.

Several important changes will likely affect employers.  First, the proposed regulations define "substantially limits" as the ability of an individual to perform major life activity as compared to the general population.  Such a limit need not be prevalent nor must it significantly or severely restrict the individual from performing major life activities.  The impairment need only substantially limit one major life activity.  The impairment is also not limited to the ability to perform functions of central importance to daily life.  The proposed regulations provide examples of "major life activities" that not only include traditional concepts such as sleeping, concentrating, sitting, and working, but also include bodily functions such as digestive, circulatory, and bowel functions.

Second, whether an individual is discriminated against because he was "regarded as" disabled no longer requires a showing that the individual was perceived as substantially limited.  It is enough to prove that the individual was regarded as disabled by showing that an employment action was taken by an employer because of an actual or perceived impairment (including actions based on symptoms).

Third, the new regulations provide a non-exhaustive list of conditions that consistently meet the definition of disability.  These include, but are not limited to, cancer, diabetes and major depression. Other conditions that may meet the definition of disability include, but are not limited to, asthma, high blood pressure, and carpal tunnel syndrome.  Although individualized assessment is still required, the EEOC clearly expects persons with noted "consistently meets" conditions to be deemed disabled.

Fourth, an employer cannot consider mitigating factors to a disability other than ordinary eyeglasses when assessing whether an employee qualifies as disabled.  Therefore, even if a disability is treated by medication or therapy, those factors must be ignored for purposes of evaluating a disability.

Fifth, impairments that are episodic or in remission are also considered disabilities if such an impairment would substantially limit the employee's ability to perform a major life function when such a disability is active.

These proposed regulations further the goal of the statutory amendments to provide coverage under the ADA to more workers.  The key focus in ADA cases is now likely to turn on whether employers have discriminated against individuals by failing to provide reasonable accommodation or by taking adverse action against the individuals because they are "regarded as" disabled or have a record of disability, not whether they are disabled.

FTC Regulations on Endorsements and Testimonials in Advertising
In late 2009, the FTC published final regulations that require any individual who is being compensated to provide a review or testimonial of a product or service to disclose that fact.  The regulations apply to employees endorsing a product of his or her employer through blogs or other means of communication.  In light of the current prevalence of social media, blogging and other forms of communications, employers should consider communicating these requirements to employees in their electronic technology use and social media policies.

If you have any questions about these changes in the law, please contact Melissa Jones at 410.752.9765 or mjones@tydingslaw.com, or Bill Carrier at 410.752.9721 or wcarrier@tydingslaw.com.

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