DOL Issues New Model Notices For COBRA Extension. "Shifting Reasons" For Firing Tags Employer With Discrimination Claim.
The Department of Labor model notices for the COBRA extension period are found at the DOL website. The American Recovery and Reinvestment Act of 2009 (ARRA), as amended by the Department of Defense Appropriations Act, 2010, reduced the COBRA premium in for certain individuals who experienced an involuntary termination of employment during the period beginning with
FMLA Amended To Include New Coverage for Certain Military and Family Members.
The 2010 National Defense Authorization Act (October 2009) expanded the changes made last year in January 16, 2009 to coverage for qualifying exigency leave to include "active members of the Armed Forces", covered active duty to include "deployment to a foreign country," and leave to care for an injured service member to include certain veterans and aggravation of injuries because of duty.
In late December the First Circuit found that the intial absence of a reason for termination when discussing termination with the employee can lead to an issue at federal court even if the reasons provided to the EEOC and MCAD are consistent. Velez v. Thermo King de Puerto Rico. After failing to provide the employee with the reason for his termination, to the EeOC the employer had asserted that the termination was for violating a customer gift receiving policy, but later asserted in court that the employee was also terminated for stealing and selling company property in contradiction to a compaqny policy. Leason to be learned is that employers need to do their homework first and then make the reason for termination clear and all inclusive.
Genetic Information Nondiscrimination Act of 2008.
Beginning November 2009, the newly passed Act will prohibit employers from discrimination based upon genetic information of employees. The EEOC will enforce the Act and mot definitions from the Civil Rights Act (42 U.S.C. 2000e) will apply. Genetic information does not include the sex or age of an employee. Acquisition of genentic information is prohibited except in certain circumstances such as through a written waiver, FMLA forms, public documents, monitoring or toxic substances in the workplace and DNA analysis for law enforcement purposes. Health and Human Services is to publish rules and regulations.
Issues New Rules For Remedies in Discharge Cases. In Anheuser-Busch, Inc., 351 No. 40 (2007), the Board permitted the discharge of employees who were "caught" in a video with a hidden surveillance camera violating company rules. The use of the hidden cameras had not been bargained for and were therefore unlawful. In Oil Capital Sheet Metal, Inc., 349 NLRB No. 118 (2007), the Board rejected its prior presumption that a "salt" (union members seeking employment with a nonunion employer to organize the workforce) would stay on a job for an indefinite period. Under the new rule, the remedy is limited and will no longer require backpay from the unlawful act of termination or refusal to hire until an offer of reinstatement is made.
First Circuit Reaffirms Holding That Stray Comments By Non-Decisionmaker Not Evidence of Discrimination. In Bennett v. Saint-Gobain Corp., (Nov. 2, 2007) the Court reaffirmed its prior holdings that stay discriminatory comments by non-decision makers will not be sufficient evidence to withstand a summary judgement motion by the employer. See also, Ramirez Rodriquez v. Boehringer Pharms., Inc., 425 F.3d 76 (2005) and Rivera-Ponte v. Rest Metropol # 3, Inc., 338 F.3d 9 (2003).
For information concerning information included in this Hot Topics section contact Diane G. Rosse at DRosse@RosseLaw.com