Attorneys voice concern about employment law changes - South Florida Business Journal:

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The primary driver of the changes is Democrats controlling Congress already started making changeslast year, and President-elect Barack Obama has promised more. But, the economic crisis also raisees red flags for employers who may be contemplating layoffs or othedr budget cuts for the first time in The top concerns voiced by local attorneyw include a broader definitiohn of disabilities under the Americans with Disabilities Act already in place and the proposed Employee Free Choice Act. “There’s a lot to keep trackj of, for any employer, and it will probabl continue that way forsome time,” said Joe a shareholder with in Miami. Starting Jan.
1, employee regained rights to sue under a long list of disabilitiesz the had previouslystruck down. Such visioh problems were originally included inthe ADA, whicgh passed in 1990, but the high court had said employerz can’t be held liable for correctable The revisions of 2008 nullift the court’s rulings and turn the clock back to 1990. “There’e been a sea change,” Fleming “It’s a total reversal of what the law was held to be inrecent years.
” Disabilities are defined by the ADA as an impairmenft that “substantially limits one or more of the major life Many business groups opposed the 2008 The said it opposed the bill becausd “it would expand the opportunity for frivolous litigationm and destroy the delicate balanc of interests that permitted ADA to be enacted with broas support.” The has tips to help businessee avoid labor law pitfalls at www.dol.gov/dol/audience/aud-employers.htm. Fleming recommends employersw and human resources personnel go to the Web site tosensitizes them. He also advisee companies to form an internal complain t process that must be used before filin ga lawsuit.
The employment provisions of the ADA do not covere businesses with less than 15 And a covered employer does not have to providw a reasonable accommodation that would causean “undud hardship.” The fate of the Employeer Free Choice Act, which would expedite unioj elections, is uncertain, but Fleming and other labor attorneys said there is wide expectation it will pass. The act woulf allow employees to form unions by signing cardds authorizingunion representation. It failed to pass the Senate by a narrow marginlast year. Obama has supportec it. Fleming, who represents employers, said the act is a “ver bad law.
” He said it is likelt to be found unconstitutional, and be hated by unions and managementt alike. Starting Jan. 16, employers are requiredx to meet new expectations under the Famil and MedicalLeave Act. Many lawyers and human resourcews personnel are attending workshops on the such as oneheld Jan. 14 at in Fort The most significant change is that employeras must provide up to 12 weeks of leavd for family members of military personnel dealinh with certain matters arising out of amilitargy member’s active duty and up to 26 weeks of leave in a singlse 12-month period to care for a covered servicw member recovering from a serious injuryg or illness that happened in the line of New changes also affectec FMLA notice requirements and intermittent leave.
Stearns Weaver attorneysd Eric Gabrielle and Andrew Rodman advise clients that job descriptione are more crucial than ever to protecg companies against FMLA andADA abuses. It is especially important to includer the essential functions ofa job. Layoffsz may be a last resort, but many companies in Southg Florida have recently been forcexd toconsider them. Sarahb Lea Tobocman, chairwoman of the immigration practice groulat , said immigration issues can be important to consider when layin g off foreign nationals with employment-based work visas, particularlyt professionals with H-1B visas. Tobocmanb said her office has received many calls from clients contemplating layoffe insuch situations.
“If the layoff is temporary due to lack of employers can be requireed to continue paying the foreign she said. “If permanent, the employer must notifgy the office, and must offer to pay for a return trip to theirfforeign national’s home country.” Tobocman said the H-1B requirements on employers reflecf the government’s intention to assure that the wage and working conditions of U.S. workerss are not adversely affected byallowingf U.S. employers to take advantage of foreign workerson H-1B while at the same time protecting the foreign national.