Want to know what's ahead for employment and labor law in 2011 for your business? Join G&A Partners and Littler for an informative presentation deck. It seems like employment law changes daily and it can be difficult for employers to find the time to keep up while they’re trying to run successful businesses. We understand employees are the heart of a company and usually also the heart of company legal matters. We have teamed up with employment law experts to highlight the new changes that will affect your employees and business. * Potential impacts of the recent mid-term elections * Employee leaves under a new ADAAA and FMLA * Increased enforcement efforts by the DOL and EEOC * Social media issues in the workplace We're here to help - join us for a webinar sometime soon at www.gnapartners.com/webinars.

1. Current Issues in Labor &
Employment Law:
What to Expect in 2011
Presented By:
G. Mark Jodon & Alexis C. Knapp

2. Agenda
• Employee Leaves Under the “New” ADA &
FMLA
• Increased Agency Enforcement
• Emerging Social Media Issues in the
Workplace
• The Rise in Retaliation Claims

3. Employee Leave Issues
Under the “New”
ADA and FMLA

4. ADA Basics Still in Effect
• The anti-discrimination piece
• The affirmative obligation piece – to
reasonably accommodate
• Major Issues
– Who is covered – “qualified individuals with a
disability”
– How far an employer has to go – the “undue
hardship” standard

5. The ADA Amendments Act (ADAAA)
• More employees and applicants may
qualify as “disabled”
• The increased importance of the
interactive dialogue
• Getting creative with reasonable
accommodations
• Regulations coming soon
• Unanswered questions

6. FMLA Basics Still in Effect
• Who Can Take Leave – Employees Who:
– Have a qualifying reason for leave;
– Work for a covered employer – 50+;
– Are employed at a worksite with 50+ people in a
75-mile radius; and
– Have been employed for at least 12 months and worked
1,250 hours during the preceding 12 months.
• What it Provides
– Unpaid leave (12 or 26 weeks)
– Maintenance of benefits
– Reinstatement rights

7. Changes in the Recent FMLA
Regulations
• Helpful clarifications for employers
– Enforcement of policies, bonuses, additional time,
increased utility of medical documentation
• Some increases in employee rights
– Light duty rules, ripening of leave, military leave
• New forms: http://www.dol.gov/whd/fmla/
• Changes since the regs?
– Military adjustments
– Who is a “child” for FMLA purposes
– Flight attendant rules (others coming?)

8. The Inevitable Overlap
ADA, FMLA, Workers’ Comp
• Different Origins and Purposes
– FMLA – serious health condition
(job and benefits)
– ADA – qualified individuals with disabilities
(accommodation and non-discrimination)
– Workers’ comp – on-the-job injuries
(medical expenses and wage replacement)
• Employees who qualify for all three?

9. The Inevitable Overlap
ADA, FMLA, Workers’ Comp
• What the EEOC has to say
• What will be “reasonable?”
– Concerns over your beloved neutral absence
control/no-fault attendance policies
– Light duty policies

10. Increased Agency
Enforcement

11. Increased Agency Enforcement
EEOC
• 2010 – Another record year for
discrimination charges
• Age-based stereotypes
• ADA: Neutral Attendance Policies vs.
reasonable accommodation obligation
• GINA
• Retaliation: #1 Charge

12. Increased Agency Enforcement
DOL - Wage & Hour Division
• Investigative Focus
– In 2009, hired 250 new investigators; in 2010,
100 more
– The “We Can Help” Campaign
• http://www.dol.gov/wecanhelp/
– Misclassification
• Employee v. Independent Contractor
• Exempt v. Non-Exempt
– Off-the-Clock Issues
• Travel
• Meetings
• Preliminary/Postliminary Activities
• Costly Remedies

13. Increased Agency Enforcement
NLRB
• Disguised “EFCA” Initiatives
• Expected Reversals in NLRB cases
• Employee Handbooks used to support ULP
charges
• Facebook: Protected Concerted Activity?
• NLRA policy carve out

14. Emerging Social Media
Issues in the Workplace

15. Social Media: Changing the
Landscape (again)
• “Web 2.0”
• Facebook, Twitter, MySpace, LinkedIn,
blogs, company web boards, “vent” sites,
etc.
• Expanded discrimination, harassment and
retaliation concerns – are your policies
inclusive enough?
• “Friend” requests between employees and
management
• Providing “LinkedIn” references for former
employees

16. Social Media Landmines for
Employers (so far...)
• Concerted activity and unlawful
surveillance
– Hawaiian Airlines
• Accessing restricted pages
– Houston’s Restaurant
• Monitoring text messages
– Ontario Police Department

17. Retaliation

18. Retaliation
• 2010: 36% of all EEOC Charges
• Elements of the Claim
• Direct & Circumstantial Evidence
• U.S. Supreme Court opens door for even
more retaliation claims
– Thompson v. North American Stainless, LP
• Review Your Anti-Retaliation Policies
• Train Your Supervisors

19. Thank You! Questions?
G. Mark Jodon
713.652.4749
mjodon@littler.com
Alexis C. Knapp
713.652.4706
aknapp@littler.com