In an opinion handed down on October 30, 2009, the Nebraska Supreme Court held that an employer is not relieved of its obligation to pay workers’ compensation just because the Social Security Administration previously labeled an employee as totally disabled.  In the case, Manchester v. Driver’s Management, a truck driver was injured in an accident for which she was found to be at fault.  She was fired shortly thereafter.  Due to injuries received during the accident and an exacerbation of prior psychological issues, she was temporarily unable to work after the accident.

About three years prior to the accident and 18 months before being hired, the employee was labeled as totally disabled by the Social Security Administration due to psychological issues.  The employer claimed that since the employee was “totally disabled,” she had no loss of earning power from her present injuries.  According to her employer, she was only eligible for workers’ compensation payments for the time during which she was employed.  The court disagreed and found that the prior determination by the Social Security Administration was not controlling on the issue of earning power and liability for workers’ compensation.

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On November 12, 2009, the United States District Court for the District of Columbia issued an opinion reinforcing the notion that “the Supreme Court favors an increasingly broad interpretation of statutes containing anti-retaliation provisions.”  In the case, Mansifield v. Billington, a plaintiff filed a motion for relief upon reconsideration of a previously dismissed retaliation claim brought under the Equal Pay Act. 

The plaintiff delivered a letter to her employer alleging that she was being paid less than her male counterparts.  About two weeks later, she was told her position was being eliminated.  She filed a complaint alleging gender discrimination under Title VII and retaliation under the EPA.  Her retaliation claim was dismissed in June 2006 and her Title VII claim in September 2008.  In October 2009, she filed her motion on the basis that evolving federal case law and recent Supreme Court decisions support her position.  The Court granted the motion, citing the “changing trend in the interpretation of federal laws prohibiting retaliation in the work place.”  The Court also acknowledged that retaliation is another form of intentional discrimination.

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On November 19, 2009, the 9th Circuit Court of Appeals held that The Rehabilitation Act applies to an anesthesiologist hired by a medical center as an independent contractor.  The decision was made in Fleming v. Yuma Reg’l Med. Ctr..  At issue was whether section 504(d) of the Act, which makes reference to the Americans with Disabilities Act (ADA), incorporates all of Title I of the ADA or just the “standards.”  Citing the broad language of the Act, the Court held that Congress intended to the Act to be more expansive than the ADA.  The Court also noted that “Congress did not use language of incorporation when it referred to the ADA in § 504.”  This interpretation is in line with the 10th Circuit.  

Other courts have taken a different approach.  The 6th and 8th circuits have held that the Act should be read to incorporate all of Title I of the ADA thereby excluding independent contractors.  With a split among the circuits, perhaps we’ll see this on the Supreme Court’s docket before long.

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On November 21, 2009, the Genetic Information Non-Discrimination Act of 2008 (P.L. No. 113-233) also known as GINA will take effect.  Title II of the Act prohibits employers, employment agencies, and other employment related entities from discriminating against an employee or applicant due to genetic information.  Some of the prohibited acts include failing or refusing to hire, or to refer for hiring, an individual due to genetic information.  Covered entities are also prohibited from discriminating with respect to “compensation, term, conditions, or privileges of employment…because of genetic information with respect to the employee.” 

The Act restricts the ways in which an employer may go about obtaining genetic information from an individual and their family.  With a few narrow exceptions, employers and other covered entities are prohibited from requesting, requiring, or otherwise obtaining genetic information about an employee or their family.  This includes an employee’s or applicant’s family medical history.  The Act also mandates certain privacy restrictions regarding the sharing of genetic information, similar to the restrictions contained in the Health Insurance Portability and Accountability Act (HIPPA).

Employment rights under the Act are to be enforced by the Equal Employment Opportunity Commission (EEOC).  The EEOC has mandated that employers display new posters with disclosures about this law where other Equal Employment Opportunity posters are required.  As with most federal employment laws, enforcement of employee rights under this Act can be complex and may require that an individual first file an administrative complaint. 

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On November 3, 2009, the 5th Circuit Court of Appeals held that a Sarbanes-Oxley Act (SOX) claim can be precluded by a failed Title VII discrimination suit.  The per curium decision came in Thanedar v. Time Warner, Inc..  To determine whether the SOX claim was barred, the Court used a transactional test and found that “the two claims rest on ‘the same nucleus of operative facts.’”  Accordingly, the preclusive effect of the prior Title VII judgment “extends to all rights the original plaintiff had ‘with respect to all or any part of the transaction, or series of connected transactions, out of which the [original] action arose.’”

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On November 3, 2009, a bill entitled the Emergency Influenza Containment Act (H.R. 3991)  was introduced by U.S. Rep. George Miller (D-CA) and referred to the House Committee on Education and Labor.  The bill provides up to five days paid leave for employees sent home by their employer due to a contagious illness.  The purpose is to “ensure that American workers are able to follow, without financial harm, the recommendations of their employer and public health authorities to stay home when they have symptoms of a contagious disease” that may put other at risk.

The bill provides up to five days paid leave per year to employees that are instructed or advised to miss work by an employer who believes the employee has symptoms of a contagious illness or has been in close contact with an individual with symptoms of a contagious illness.  The Act states that an employer that violates its provisions will be considered to be in violation of the Fair Labor Standard Act’s minimum wage provision and subject to prosecution.  The Act also prohibits retaliation and discrimination against any employee who follows their employer’s direction to miss work or seeks enforcement of his or her rights under the Act.

Excluded from the Act are employers with 15 or fewer employees and employers that provide at least five days of sick leave per year.  Additionally the bill contains a sunset provision and if passed, will expire two years after its effective date.  Hopefully this bill will aid in slowing the spread of the H1N1 virus, better known as the Swine Flu.

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