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The Express Lane

Retailer's Recap

Genetic Information Nondiscrimination Act becomes law. President Bush signed into law the Genetic Information Nondiscrimination Act, which prohibits discrimination based on individuals’ genetic information, and prohibits employers and insurers from requesting or requiring most types of genetic tests. For more information about GINA, click here.

Florida business organizations target “Bring Your Gun to Work” law. The Florida Chamber of Commerce and Florida Retail Federation have filed a motion for a preliminary injunction to block that state’s “Bring Your Gun to Work Law,” which would allow employees and business invitees (including customers) to keep firearms in their locked vehicles under many circumstances. The law’s opponents say that it unconstitutionally violates businesses’ rights to control their private property and would require business owners to ignore their obligations under the Occupational Safety and Health Act. The National Rifle Association is a primary proponent of the statute and says that the law protects individuals’ rights to bear arms as provided in the Second Amendment to the United States Constitution. For more details about the Florida statute, which will take effect July 1 if the preliminary injunction is not granted, click here. Georgia has recently enacted a similar, but significantly more retailer-friendly, statute.

Supreme Court says courts cannot review arbitration agreements for errors of law, even if parties agree that they can. In Hall Street Associates, LLC v. Mattel, the Supreme Court said that such an agreement was unenforceable. The parties, both businesses, and both of whom were represented by counsel, had agreed to arbitrate a dispute subject to court review for errors of law. Hall Street lost at arbitration, and went to court over it. The court found that the arbitrator had made a legal error and sent the case back. This time, the arbitrator found in favor of Hall Street, and Mattel appealed, contending that the agreement for court review was unenforceable (even though Mattel had freely agreed to the deal). The Supreme Court sided with Mattel. In light of this decision, retailers should exercise extreme caution before requiring employees to arbitrate employment claims. For more information, click here.

A “charge” by any other name . . . is probably still a charge. In FedEx Corporation v. Holowecki, the Supreme Court decided that any filing that could “reasonably be construed as requesting agency action” should be treated as a bona fide charge of discrimination. This is so even though the employer may never receive a notice that such a “charge” has been filed against it. The Holowecki case involved a charge of age discrimination filed with the U.S. Equal Employment Opportunity Commission, but the court’s reasoning presumably applies to other types of discrimination charges as well. Justice Clarence Thomas dissented, saying that the Court’s decision in effect meant that an EEOC charge is “whatever we say it is.” For more information, click here.

“Me, too! Me, too!” In Sprint v. Mendelsohn, the Supreme Court decided that courts should admit or exclude on a case-by-case basis evidence of plaintiffs’ co-workers who also claim to be discriminated against. For more information, click here.

Employers react favorably to proposed FMLA regulations. As most retail employers know, the U.S. Department of Labor has issued proposed regulations interpreting the Family and Medical Leave Act, and Congress passed the National Defense Authorization Act, which provided for FMLA leave in certain military situations. The Department of Labor requested comment on both the proposed regulations (interpreting the “old” FMLA provisions) and on how it should interpret the new military-leave provisions. The deadline for comment was April 11, and reportedly most commenting employers reacted favorably to the proposed changes. For details about the proposed regulations and the military leave provisions, click here and here.

Are you using the new I-9? The U.S. Citizenship and Immigration Services has released a revised I-9 Form that retailers should be using now. To see the new form, click here and scroll down. For the instruction book, click here, go to “Related Links” on the left of the screen, and click on the second bullet (“M-274, Handbook for Employers”).

What Retailers Can Expect After November’s Elections

This year’s election will have a significant impact on the employment-law arena, as well as the war in Iraq, the budget, the economy, and all the rest. Following is a summary of some employment-related legislation that has failed in Congress but is likely to be re-introduced in 2009:

ADA Restoration Act. This bill seeks to overrule Supreme Court decisions that had limited the definition of “disability” for ADA purposes – most notably, the requirement that courts take into account the availability of “mitigating measures,” such as corrective lenses or medications, in determining whether a person is disabled within the meaning of the ADA. A subtle language shift arguably eliminates even the requirement that the plaintiff be an “individual with a disability.”

Employee Free Choice Act. This passed the House in 2007 but failed in the Senate; however, it is expected to rear its head again late this year or in 2009. An employer is generally not required to recognize a union unless a secret ballot election is held and a majority of the employees vote for union representation. Even if the union wins, the employer is not required to agree to a contract, and may implement its own terms if the parties bargain in good faith to an impasse. This bill would require employers to recognize unions based on a majority of authorization cards without an election. If bargaining failed to produce an initial contract within 120 days, a contract could be imposed by government-sponsored mediation or arbitration.

Lilly Ledbetter Fair Pay Act/Fair Pay Restoration Act. These are House and Senate versions of the same bill, which would overrule the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Corp. In Ledbetter, the plaintiff claimed sex discrimination based on discriminatory evaluations that she had received outside the applicable statute of limitations. She contended that her claims were timely because she was continuing to receive lower pay as a result of the evaluations – in essence, she contended that she had a “fresh” claim every time she received a paycheck reflecting the lower pay. The Supreme Court held that the statute of limitations began to run when the evaluations were issued, not with each paycheck. The legislation would provide that the statute of limitations in pay discrimination cases under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973, is refreshed each time an employee receives a paycheck that reflects a discriminatory decision, no matter how old that decision may be.

Also worthy of note is the Employment Non-Discrimination Act, which would provide protection similar to that in Title VII against discrimination based on “actual or perceived sexual orientation or gender identity.”

Noteworthy Numbers

As the charts below indicate, the number of discrimination charges and federal employment claims asserted in 2007 increased from the previous year. This is not surprising, given our times of economic and political uncertainty. Retail employers should take special note of the increase in individual and collective claims under the Fair Labor Standards Act, and should ensure that their pay and overtime calculations comply with applicable federal and state wage-hour laws.

Fiscal Year Charge Statistics:

SOURCE: U.S. Equal Employment Opportunity Commission (percentages add up to more than 100% because of charges based on multiple grounds)

Top Ten States for Federal Court Employment Case Filings:

SOURCE: Public Access to Court Electronic Records (PACER)

Top Ten States for Federal Court Case Filings by the EEOC on Behalf of Individuals:*

SOURCE: Public Access to Court Electronic Records (PACER)

Top Ten States for FLSA Case Filings:

SOURCE: Public Access to Court Electronic Records (PACER)

When it Comes to Reasonable Accommodations, Are You “Interactive” Enough?

Title VII requires employers to reasonably accommodate their employees' sincerely held religious beliefs if doing so will not be an "undue hardship." In the retail context, this issue arises most often with employees who ask to be off on Friday evenings, Saturdays, or Sundays for the Sabbath, worship, or "day of rest." Although an employer does not have to incur an undue hardship, some courts say that the employer must at least have an "interactive dialogue" with the employee to discuss accommodation options. Otherwise, these courts allow failure-to-accommodate cases to go to juries. For example, in EEOC v. Aldi, Inc., a federal court in Pennsylvania held that an employee could go to trial on his religious discrimination claims where, in response to his request to be off Sundays, the employer simply referred him to its policy on shift swapping. The court criticized Aldi for failing to take action regarding its rotation system "or otherwise providing means for employees to effect a shift swap."

Many courts also require that employers engage in an "interactive process" with employees requesting reasonable accommodations under the Americans with Disabilities Act.

The lesson is that managers and supervisors should refer requests for religious or ADA accommodations to Human Resources to ensure that the retailer treats such requests consistently, fairly, and "interactively."


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