New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

On October 20, 2011, the Internal Revenue Service announced the dollar limitations for pension plans and other items beginning January 1, 2012. Some of the limits, which had been largely unchanged since 2009, are listed below.

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At one point in the Hitchhiker’s Guide to the Galaxy series by British author Douglas Adams, Arthur Dent finds himself confronted by a door that will not open unless he can demonstrate a high degree of intelligence. When Dent somehow manages to possess both tea and no tea at the same time, the door opens, noting that Dent must be quite a philosopher to overcome the inherent contradiction of holding and not holding an item at once.

A recent decision by the Second Circuit is reminiscent of Dent’s feat. In Shahriar v. Smith & Wollensky, the Second Circuit Court of Appeals was confronted with the question of whether plaintiffs could simultaneously maintain a collective action under the Fair Labor Standards Act, as well as a class action based on state-law claims under Rule 23 of the Federal Rules of Civil Procedure. If you are wondering why that poses an issue, in a collective action potential plaintiff class members are not in unless they affirmatively opt in, whereas the plaintiffs in Rule 23 class actions are in unless they affirmatively opt out. As a result, the same person could be both a plaintiff and not a plaintiff in the same action; out of the collective action because she did not opt in, but in the class action because she did not opt out.
 

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We all anticipated that the Americans with Disabilities Amendments Act (ADAAA) would make it easier for certain medical conditions to qualify as protected disabilities. That was, after all, the point of the Act. Earlier this year, the EEOC provided us with an example of how the ADAAA may do so when it issued an informal discussion letter noting that it will now be easier for individuals with paruresis – commonly known as “shy bladder syndrome” – to meet the statutorily revised definition of a disability. This informal discussion letter is a clear reminder that employers should not make assumptions about whether a particular condition qualifies as a disability.

Paruresis is the inability to urinate in public restrooms or in close proximity to other people, or the fear of being unable to do so. The condition is typically considered to be an anxiety disorder, but it can also consist of chronic pelvic floor dysfunction. To determine if paruresis qualifies as a “disability” under the ADAAA, the EEOC letter opinion reminds employers to conduct an individualized analysis to determine if one of the statutory definitions has been satisfied:

1. a physical or mental impairment that substantially limits a major life activity;
2. a record of a physical or mental impairment that substantially limits a major life activity; or
3. an adverse employment action taken because of an actual or perceived impairment that is not both transitory (i.e., expected to last for 6 months or less) and minor.
 

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If enacted, President Obama’s proposed American Jobs Act would ban employers with 15 or more employees from discriminating against the unemployed by making it illegal to categorically exclude applicants who are out of work. The impetus for this provision appears to be an increase in job advertisements that explicitly exclude the jobless, using statements such as “must be currently employed.” The bill would not only ban these types of advertisements, but also enable applicants who believe they were not hired because they are unemployed to sue the prospective employer.

The proposed legislation has caused debate over whether it makes sense to exclude an applicant solely because he or she is unemployed given the current economic environment. When U.S. unemployment rates were low, particularly in the late 1990’s, an applicant’s long stint of unemployment was usually a red flag. The assumption was that an individual who could not find and maintain employment when employment was plentiful must have undesirable qualities. In current economic conditions that assumption may be invalid because many qualified applicants are out of work for extended periods through no fault of their own.

Earlier this year, the Equal Employment Opportunity Commission weighed in on the issue, which it described as an “emerging practice,” by holding public hearings on the practice of employers excluding unemployed applicants. At the hearings, employee advocates contended the practice could be illegal already under existing anti-discrimination laws because it could have a disparate impact on minority groups, whose unemployment rate is significantly higher than whites, on older Americans, who have remained out of work longer than young employees in the current recession, as well as on women and the disabled, who also tend to have higher rates of unemployment.
 

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Yesterday, the NLRB announced that it is postponing the implementation date of the workplace notice rule that was issued on August 30, 2011. As we previously reported, that rule requires private sector employers to post a notice advising employees of their right to join a union and of their other rights under the National Labor Relations Act. Employers subject to the rule were required to post the notice by November 14, 2011. The implementation date has now been moved back more than two months. Employers are not required to post the notice until January 31, 2012.  The NLRB’s stated reason for the extension is to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”

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