washington Report 122008

Date Published: 
Original Author: 
Robert M. Fells
Original Publication: 
ICCFA Magazine

Business lawyers expect more laws, regulation from new Congress 

In a survey published shortly before Election Day, six out of 10 corporate attorneys said they expected the presidential election to have an impact on labor and employment laws at their companies. In-house legal counsel identified the most time-consuming legal tasks as workplace discrimination, family and medical leave, wage and hour and employee benefits, in that order. The survey was conducted by the Association of Corporate Counsel.
The survey results indicated that "looking forward to this year’s presidential election, 60.5 percent of the ... respondents believe the election outcome would affect labor and employment laws. ... Among the potential changes cited by respondents were the possibility of increased costs for health benefits and mandatory paid sick days; a resurgence of workplace regulation generally; and passage of the Employee Free Choice Act [EFCA], which would eliminate secret ballots in union organizing drives and strengthen labor’s hand in negotiations over union representation."
The ICCFA has opposed enactment of the EFCA and is a member of the Coalition for a Democratic Workplace. A recent article in The Wall Street Journal suggests that passage of the EFCA could occur within the first 100 days of the new Congress in 2009, especially if Demo- cratic gains were substantial. For more informa- tion on this issue and on the Coalition, please check www.myprivateballot.com.

New Americans with Disabilities Act requirements take effect January 1 

New workplace legal requirements are already on the way, since President Bush recently signed into law the ADA Amendments Act of 2008, significantly modifying the original Americans with Disabilities Act signed into law by the president’s father, George H.W. Bush, in 1990. The new provisions expressly overturn sev- eral landmark U.S. Supreme Court decisions that narrowly interpreted the definition of "disability" and will make disposing of ADA cases prior to trial more difficult for employers. The new law takes effect January 1.
Among the many provisions, the new law states that the existing definition of a "disability" now "shall be construed in favor of broad coverage of individuals... to the maximum extent per- mitted by the terms of [the ADA]." The new law "lowers the standard to prove an employer discriminated against an individual whom it ‘regarded as’ having a disability. However, such ‘regarded as’ claims cannot be based on ‘transitory and minor impairments where the impairment is ex- pected to last less than six months. Also, employers are not required to provide a reasonable accommodation to individuals who are regarded as disabled, an issue over which the federal courts were previously split.’"
It is recommended that employers take the time now to review existing procedures for ADA compliance at "every stage including hiring, medical testing, accommodation, leave and determination." Job descriptions should also be reviewed because they are often a starting point for an individualized assessment.
For more information on the new ADA amendments, check the Web site of the law firm Jackson Lewis at www.jacksonlewis.com/ legalupdates/article.cfm?aid=1507.

Nonprofits take note: New Form 990 requirements from IRS

Any organizations required to file Form 990 with the Internal Revenue Service should be aware of new disclosure provisions on the tax form. In particular, a nonprofit organization is required to answer questions on whether or not it has instituted a policy on document retention and destruction, a conflict of interest policy for board members and a whistle-blower protection policy for staff. Some of these requirements were initiat- ed in the Sarbanes-Oxley Act to make publicly traded companies more accountable. Ironically, the document retention and whistle blower policy requirements seem to extend to all businesses, whether organized as for-profit or nonprofit enti- ties.
For more information, check the IRS Web site, www.irs.gov. Also, sample language for the document retention/destruction policy, whistle- blower protection policy and conflict of interest policy can be obtained from the ICCFA by calling General Counsel Bob Fells at 1.800.645.7700.