On March 21, 2008, the Department of Homeland Security (DHS) issued a supplemental proposed rule related to its controversial “Safe Harbor” regulations issued in August 2007. The August 2007 final rule expanded the legal definition of “constructive knowledge” by creating new legal obligations for employers upon receiving a Social Security Administration (SSA) “no-match” letter. (For a more detailed summary of the August 2007 final rule, please see our prior story, Safe Harbor Regulations Regarding No-Match Letters.) The Safe Harbor regulations were blocked from enforcement on October 10, 2007, by a federal injunction issued by Judge Charles Breyer of the Northern District of California in October 2007.

On March 31, 2008—almost three years to the day of the United State’s Supreme Court’s 2005 ruling in Smith v. City of Jackson—the Equal Employment Opportunity Commission (“EEOC” or the “Agency”) issued a notice of proposed rulemaking announcing the Agency’s intent to amend its age discrimination regulations to reflect the issues addressed by the Court in that decision.  The proposed rules both implement aspects of the decision as well as also go beyond the Smith v. City of Jackson decision to rule on an issue of disagreement among the circuits. 

On February 27, the Seventh Circuit handed down a decision that will bring new attention to the lightly litigated, but significant, “association” provision of the Americans With Disabilities Act (ADA). Title I of the ADA not only protects qualified individuals with a disability against employment discrimination, but also protects applicants and employees from discrimination based on their relationship or association with an individual with a disability.

In Dewitt v. Proctor Hosp., Phillis Dewitt, a nurse manager with an excellent employment record, was nevertheless terminated by an Illinois hospital allegedly due to escalating medical costs from her husband’s cancer. When Ms. Dewitt’s husband’s medical claims started showing up in quarterly reports highlighting claims over $25,000, Ms. Dewitt’s supervisor began confronting her about the costs, even suggesting that Ms. Dewitt consider less expensive hospice care for her husband. The Seventh Circuit, partially reversing a lower court decision, held that Ms. Dewitt could pursue a claim for “Association Discrimination” under the Americans with Disabilities Act.

• seven days of paid leave at firms with 100 employees
• five days at firms with 25-99 employees
• three days in firms with 24 or less employees
• a pro-rated amount of sick days off for part-time workers

The organization also reports that the New Jersey State Senate has passed a measure that would:

authorize six weeks of paid family leave during any 12-month period to allow employees to care for an ill family member, newborn or recently adopted child. Employees would receive two-thirds of their regular weekly pay, up to $524 per week. The leave would be funded through contributions made by all employees in the state of 0.14% of earned wages (roughly a quarter per week for minimum wage workers) into the State Disability Fund; the Fund would then distribute the funds to an estimated 38,000 people per year once the system is up and running.

These efforts follow the organization's success in helping pass a paid sick leave ordinance in San Francisco and, of course, compliment the broader efforts to pass the Healthy Families Act on a national level.

See also:  Paid Sick Leave

In what we presume is an effort to accomodate employers and unions who would otherwise decide the issue by the now-uncertain card check procedure, on February 26, 2008, the National Labor Relations Board (NLRB) published a proposed rule that would create a new type of “consent” union certification election under the National Labor Relations Act (NLRA).