Broad Expansion of ADA Rights Poised to Become Law

This post was written by James A. Burns, Jr. and John T. McDonald.

Yesterday, September 25, 2008, President Bush signed the ADA Amendments Act of 2008 (“ADAAA”), which will expand the protections afforded by the Americans with Disabilities Act (“ADA”). The ADAAA passed the Senate by unanimous consent on September 11 and was approved by a voice vote in the House of Representatives less than a week later. Its significant changes to the ADA will take effect January 1, 2009. 

The ADA prohibits discrimination against a qualified individual with a “disability,” defined as a physical or mental impairment that substantially limits one or more of the individual’s major life activities. The ADAAA is designed to reverse several rulings by the United States Supreme Court that the law describes as having improperly restricted ADA coverage by narrowly interpreting the term “disability.” In one such case, the Court held that when deciding whether an individual is protected by the ADA, courts need to take into account mitigating measures that might ameliorate the effects of the condition, such as medication or other treatment. In other cases, the Court strictly enforced the requirement that an impairment substantially limit a “major life activity” to be a covered disability, and narrowly construed what sort of activities would be considered “major life activities” for purposes of the ADA. 

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Advocate General's opinion in Heyday's challenge to the Age Regulations

The Advocate General of the European Court of Justice has rejected the claim by Heyday (an offshoot of Age Concern) that UK law, which entitles employers to retire employees compulsorily at or after reaching 65, is contrary to EU law.  In 2007, Heyday brought a claim in the High Court against the UK Government that the national default retirement age of 65 under the Employment and Equality (Age) Regulations 2006 was incompatible with the EU Law. The High Court referred certain questions regarding the lawfulness or otherwise of the Age Regulations to the European Court of Justice (ECJ). Before the ECJ can give its judgement, the Advocate General must give a preliminary legal opinion which is usually (but not invariably) followed by the ECJ. The AG’s opinion is therefore significant because it is more than likely to be followed.  Click here for a link to the opinion:

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What's coming up in Employment Law this Autumn?

Continue reading for an overview of what legislative changes to expect and prepare for this coming October.

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Jurisdictional limits in sex discrimination cases

In the case of Tradition Securities & Futures SA v X & Y, the Employment Appeal Tribunal clarified the Employment Tribunals’ jurisdiction in sex discrimination cases.

Whilst this case relates to sex discrimination, its implications are relevant to other types of discrimination as well and will be of interest to large multi-national organisations whose employees work in various jurisdictions throughout their employment.

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Pennsylvania Clean Indoor Air Act

This post was written by Catherine S. Ryan and Andrew T. Quesnelle.

On June 13, 2008, Gov. Ed Rendell signed into law the Pennsylvania Clean Indoor Air Act (S.B. 246) (the “Clean Indoor Air Act” or the “Act”). The Clean Indoor Air Act will take effect on September 11, 2008. 

The Clean Indoor Air Act prohibits individuals from smoking in a public place. A “public place” is defined as an “enclosed area which serves as a workplace, commercial establishment or an area where the public is invited or permitted.” In addition, “workplace” is further defined as “an indoor area serving as a place of employment, occupation, business, trade, craft, professional or volunteer activity.” Several categories of business establish-ments are explicitly excluded from the Act’s coverage, including certain drinking establishments, many private clubs, certain fundraisers or charitable events, and designated areas within sports and recreational facilities. 

Any establishment where smoking is prohibited, which includes any public place for which there is no specific exception, is required to prominently post “No Smoking” signs. Likewise, any entity where smoking is permitted by the Clean Indoor Air Act is required to prominently post a “Smoking Permitted” sign at every entrance to the establishment. 

The Clean Indoor Air Act provides for a variety of penalties for entities that fail to post the required signage or that permit smoking in places where it is prohibited. The penalties increase in severity depending on the number of offenses within certain periods of time. An entity is subject to a $250 fine for a first violation, a $500 fine for a second violation within one year, and a $1,000 fine for a third violation within one year of the second violation. Violations are considered administrative if they are found by the Pennsylvania Department of Health, state licensing agency or county board of health, and criminal if they are found by a law enforcement officer; but the fines remain the same whether the offense is considered administrative or criminal. It is an affirmative defense for an entity to demonstrate, through a sworn affidavit, that it “made a good faith effort” to prohibit smoking. 

Employers should be aware that the Clean Indoor Air Act contains anti-retaliation provisions, which prohibit employers from discharging, refusing to hire or otherwise retaliating against an employee because the employee exercised his or her right to a smoke-free workplace under the Act. 

Covered entities must begin compliance with the Act’s provisions by September 11, 2008. The Pennsylvania Department of Health has printable “No Smoking” and “Smoking Permitted” signs on its website, along with other pertinent information about the Act. 

High court considers validity of a 'no show' clause

The High Court decision of Tullett Prebon Group Ltd v Ghaleb El Hajjali will be of interest to all employers who recruit highly specialised senior employees. The decision considers the enforceability of a liquidated damages “no show” clause, and how damages should be calculated where an employee changes his mind about joining a prospective employer, after signing an employment contract containing such a clause.

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New York State Worker Adjustment and Retraining Notification Act

In August 2008, Gov. David Patterson signed the New York State Worker Adjustment and Retraining Notification Act (S.8212) (the “NY WARN Act”) into law. Although the NY WARN Act, effective Feb. 1, 2009, imposes requirements on employers similar to those required by the federal Worker Adjustment and Retraining Notification Act (the “Federal Act”), 29 U.S.C. §§2101-2109, there are some important differences. 

The Federal Act generally requires employers of 100 or more full-time employees to provide at least 60 days’ advance written notice regarding plant closings or mass layoffs to the affected employees’ representative or, if none, to the affected employees themselves. The Federal Act also requires that employers notify the state dislocated worker unit and the local government. The NY WARN Act requires New York employers with 50 or more employees to provide 90 days’ advance written notice in the event of a mass layoff, relocation or employment loss1 to the affected employees, the representatives of the affected employees, the New York State Department of Labor and the local workforce boards. 

The NY WARN Act also has lower minimum thresholds than the Federal Act for determining whether a triggering event requires mandatory notice. Specifically, the NY WARN Act expands the definition of “mass layoff” to include employment losses at a single site of employment that affect: (1) at least 25 full-time employees (as opposed to the 50 employee minimum of the Federal Act) so long as they represent at least 33 percent of the total active workforce; or (2) at least 250 full-time employees (as opposed to the 500 employee threshold of the Federal Act). 

The NY WARN Act also requires notice in the event of a plant closing resulting in an employment loss affecting 25 full-time employees (as opposed to the 50 employees required pursuant to the Federal Act) during a 30-day period.2

Affected employees and their representatives may pursue claims against employers as individuals or as members in representative actions for violations of the NY WARN Act. Such employees may be entitled to back pay and the cost of benefits for the employer’s violation, up to a maximum of 60 days or one-half the number of days the employee was employed by the employer, if fewer. Employers may also be required to pay civil penalties of not more than $500 for each day of the violation. The NY WARN Act also grants the New York State Department of Labor the authority to prescribe rules necessary to enforce the Act, and to make determinations regarding violations and liability. Any payment made pursuant to the Federal Act constitutes payment under the NY WARN Act, and penalties cannot exceed the maximum federal penalty for the same violation. 

Both the NY WARN Act and the Federal Act provide exemptions for employers from the notice requirements under certain limited circumstances, including good faith and active attempts to secure financing, strikes/lockouts, and unforeseeable business circumstances, such as natural disasters. The NY WARN Act provides additional exemptions for a “physical calamity” or “an act of terrorism or war.”

1      The NY WARN Act definition of “employment loss” could be construed to apply to individual terminations, but “employment loss” is also defined to include a “mass layoff.” It is likely, therefore, that the NY WARN Act was not meant to apply to individual terminations, as this would negate the “mass layoff” language.

2     The NY WARN Act does not specifically include “plant closing” as an event requiring 90 days’ advanced notice, nor is the term included in the definition of “employment loss.” The NY WARN Act, however, seems to require 90 days’ notice in the event of a “plant closing” because the term “affected employees” is defined as those “who may reasonably be expected to experience an employment loss as a consequence of a proposed plant closing or mass layoff by their employer.”