SLF LABOR AND EMPLOYMENT ALERT December 2007

Fate of Mandatory Arbitration Hangs in the Balance

Since the early to mid 1990s, employers have increasingly adopted alternative dispute resolution (“ADR”) to ameliorate the impact of lawsuits filed by employees. On several occasions, the U.S. Supreme Court has issued opinions that bolster an employer’s ability to require aggrieved individuals to pursue their claims in a non-jury setting before an arbitrator rather than in the court system. However, a bill pending in the U.S. Senate could severely restrict the ability of employers to adopt and enforce mandatory arbitration programs.

The Arbitration Fairness Act of 2007 (S. 1782) would limit the enforceability of pre-dispute arbitration clauses. Recently, the Senate Judiciary Committee has received testimony from witnesses on both sides of the issue. A companion bill was introduced in the U.S. House of Representatives (H.R. 3010) and was debated before a House subcommittee in October.

Employers with ADR programs in place, or who are contemplating the implementation of mandatory arbitration of employment disputes, are encouraged to follow the progress of these bills. The website of The Library of Congress is an excellent tool for tracking the progress of Federal legislation, and may be accessed at: http://thomas.loc.gov/.

Federal Legislation Extends FMLA to Cover Family Members
of Wounded Soldiers

A provision in defense appropriation legislation passed by the House and Senate will extend the Family and Medical Leave Act (“FMLA”) to cover family members of wounded soldiers. The Legislation currently awaits signature by the President.

The legislation would establish two new types of FMLA leave.  An eligible employee would be entitled to take up to 12 weeks of unpaid FMLA leave because of a "qualifying exigency" that occurs when the employee is on or has been called to active duty. The definition of “qualifying contingency” is not defined in the legislation; rather, the task of defining this term would be left to the U.S. Department of Labor.

Additionally, an eligible employee who is the primary caregiver of a combat-injured member of the Armed Services would be allowed to take up to 26 weeks of FMLA leave in a single 12-month leave year to care for the injured servicemember.  The legislation would place a cap on the amount of FMLA leave that may be taken in any one year to a total of 26 weeks.

The legislation would also expand the definition of “eligible employee” to include (in addition to spouse, son, daughter, or parent) those who are considered "next of kin," which is defined as the nearest blood relative to the serviceman or servicewoman. Finally, as with the current version of the FMLA, employers are allowed to require certification from employees who invoke the benefits of the law. The legislation may be viewed at: http://thomas.loc.gov/cgi-bin/cpquery/?&dbname=cp110&sid=
cp110K2Okk&refer=&r_n=hr477.110&item=&sel=TOC_635036

Supreme Court to Consider Important ADA Accommodation Issue

The U.S. Supreme Court will consider an appeal addressing an important issue involving the duty to accommodate disabled employees under the Americans With Disabilities Act (“ADA”). In Huber v. Wal-Mart Stores, Inc., the employer (Wal-Mart) had a policy requiring that vacant positions be filled by the most qualified person. A warehouse worker who was disabled asked to be reassigned to a position to accommodate her disability, but was not placed in the position because she was not the most qualified. Instead, the employee was reassigned to a different position for which she was qualified but which paid less than her regular position. The issue to be decided by the Supreme Court is whether the ADA requires employers to reassign disabled employees to equivalent vacant positions even when more qualified candidates are available for placement into the position. The 8th Circuit Court of Appeal (the Circuit Court from which the appeal was taken) held that the ADA did not impose such a requirement, finding that “the ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such reassignment would violate a legitimate non-discriminatory policy of the employer to hire the most qualified candidate.” A decision is expected later in 2008.

Past Issues of SLF Labor and Employment Alert Posted on Website

You may view past issues of the SLF Labor and Employment Alert on the Firm’s website: www.sniffenlaw.com. After entering the Firm’s website, click on the “Publications” page.

 

211 East Call Street
Tallahassee, FL 32301
850.205.1996
850.205.3004 FAX