Notes from the Chair
Charles E. McDonald III
Ogletree Deakins Nash Smoak & Stewart, PC, Greenville

It seems like 2009 has flown by. Things are continuing to stay busy in labor and employment law, and we hope you will find the articles contained in this edition of the Employment and Labor Law Newsletter beneficial to your practice. Remember, it is never too early to submit an article for publication, so if you have an article that you would like to have published, please e-mail Kris Cato at kcato@rtt-law.com for consideration in the next issue. For everyone who was able to attend the N.C./S.C. Employment and Labor Law CLE in Charleston on October 23-24, the Section appreciates your attendance and participation. For those of you who were unable to attend this year, the CLE was recorded and will be available on the S.C. Bar Web site. We had some excellent speakers discussing timely topics in employment and labor law with nearly 200 attendees this year and are already looking forward to next year when the N.C. Bar Assoc. Employment and Labor Law Section will host the event in Asheville at the Grove Park Inn.

The S.C. Bar Convention will be January 21-24, 2010, at Kiawah Island Golf Resort. You should have already received your registration materials from the Bar. The Section will again host a half-day program on Friday morning, January 22, from 8:30 to 11:45. We look forward to seeing the Section members who can join us. If you have any questions, concerns or suggestions for improving the quality of this newsletter, please do not hesitate to contact me or Tara Smith at the S.C. Bar.

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Congress Expands Family Military Leave
Alfred B. Robinson Jr.
Ogletree, Deakins, Nash, Smoak & Stewart, PC, Washington, D.C.

On October 28, 2009, President Barack Obama signed the National Defense Authorization Act (NDAA) for the 2010 fiscal year, which includes provisions that expand the military leave entitlements of the Family and Medical Leave Act (FMLA). The NDAA amends both the “qualifying exigency” leave and military caregiver leave that became effective in January 2008.

Q: What specifically in the FMLA does this affect?
A: The new amendments affect FMLA provisions related to “qualifying exigency” leave and military caregiver leave. The new laws expand the leave available for employees, and more employees will be able to take family military leave.

Q: How has “qualifying exigency” leave been amended?
A: Prior to these new amendments, an eligible employee whose spouse, son, daughter or parent was on active duty or called to active duty in support of a contingency operation as a member of the National Guard or Reserves was entitled to qualifying exigency leave. The new law extends qualifying exigency leave to an eligible employee whose spouse, son, daughter or parent is a member of any branch of the military, including the National Guard or Reserves, and who was deployed or called to active duty in a foreign country. In addition to extending qualifying exigency leave to eligible family members of a member of any branch of the Armed Forces, the new law eliminates the requirement that the active duty be in support of a contingency operation.

Q: How much “qualifying exigency” leave is an employee entitled to?
A: The new law did not change the leave entitlement. A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during the normal 12-month period established by the employer for FMLA leave.

Q: Did Congress change the reasons that an eligible employee can take “qualifying exigency” leave?
A: The reasons for which an eligible employee can take qualifying exigency leave are unchanged. Such leave can still be taken for short-notice deployment, military events and related activities such as official ceremonies, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities to address other events that arise out of the covered military member’s active duty or call to active duty status.

Q: How has military caregiver leave been amended?
A: The new amendments expand military caregiver leave in two ways:

First, the new law extends military caregiver leave to eligible family members of veterans who were members of any branch of the military at any time within five years of receiving medical treatment that triggers the need for military caregiver leave. Now, employees who are family members of current service members or veterans that are undergoing medical treatment, recuperation or therapy for a serious injury or illness incurred in the line of duty may take caregiver leave of up to six months as long as the veterans were members of the military within five years of receiving such treatment. This means that now a family member can take up to 26 weeks of FMLA leave to care for a veteran if he or she seeks medical treatment for a serious service-related injury or illness, incurred while in the line of duty, within five years of serving in the military. Employers do not have the option of using the typical FMLA calendar-year method for military caregiver leave—the 12-month period begins when the employee begins using caregiver leave.

Second, the new amendment expanded the definition of a “serious injury or illness” for purposes of determining eligibility for military caregiver leave. It has been expanded to include the aggravation by an active duty service member in the Armed Forces of existing or pre-existing injuries. Thus, employees may now take military caregiver leave for a family member whose pre-existing injury or illness was aggravated while on active duty. As for veterans, the definition requires that the injury or illness may manifest itself before or after the Armed Forces member became a veteran.

Q: When do the new amendments take effect?
A: The NDAA did not specify the date on which these amendments to the family military leave entitlements become effective. Thus, the presumption is that these changes took effect when President Obama signed the NDAA. It is anticipated that the U.S. Department of Labor will issue guidance to address those changes in the near future.

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Proposed Rulemaking for the ADA Amendments Act of 2008
Charles L. Appleby IV
Collins & Lacy, PC, Columbia

Background
The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing Title I of the ADA, which prohibits employment discrimination against individuals with disabilities. The ADA Amendments Act of 2008 (ADAAA) was enacted on September 25, 2008, in an effort to reestablish the original legislative purpose of the Act by overturning several U.S. Supreme Court cases and expanding on the definition of disability. The ADAAA became effective January 1, 2009, and expressly authorizes the EEOC to revise its regulations to conform to changes made by the ADAAA.

As the first step in revising the regulations, the EEOC approved a Notice of Proposed Rulemaking (NPRM). The NPRM proposes changes both to the EEOC’s regulations and the EEOC’s Interpretive Guidance, which is published as an appendix to its ADA Title I regulations. The NPRM was published in the Federal Register on September 23, 2009, and is available from the Commission’s Web site, along with a question-and-answer guide about the proposal and instructions for submitting public comments.

The proposed regulations carried a 60-day period for public comment, which ended November 23, 2009. The EEOC will consider the comments received and either issue final regulations and provide an effective date on which the regulations will be implemented, or the EEOC will have another round of comment and revision. There may be several rounds of comment and revision prior to the issuance of final regulations.

The ADAAA and the proposed regulations make it easier for an individual alleging employment discrimination based on disability to establish he/she meets the ADA’s definition of “disability.” This article addresses some of the key changes included in the proposed regulations.

Proposed regulations
The ADAAA and proposed regulations maintain the ADA’s basic definition of disability as:
(1) an impairment that substantially limits one or more major life activities;
(2) a record of such an impairment, or
(3) being regarded as having such an impairment.

Per Se List of Disabilities
The current regulations do not include “per se” disabilities. The proposed regulations provide a per se list of impairments that would consistently meet the definition of disability under the ADAAA. These impairments include: autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and/or schizophrenia. The EEOC’s decision to include a per se list of disabilities may generate significant debate as a per se list was discussed when the ADAAA was originally drafted, but it was ultimately not included in the final version.

Impairments Substantially Limiting to Some
The proposed regulations also provide a list of impairments that, while not a per se disability under the ADA, may qualify as substantially limiting for some individuals. These impairments include:  asthma, high blood pressure, learning disability, back/leg impairment, depression/anxiety, carpal tunnel syndrome and hyperthyroidism. While each of these impairments require more analysis than the per se disabilities, the regulations note these impairments do not demand extensive analysis and determination of whether the impairment has been shown to be a disability should be construed in favor of broad coverage.

Substantially Limits
In line with the ADAAA, the proposed regulations lowered the threshold for establishing that an individual is “substantially limited” from the current regulations. Under the proposed regulations, an impairment does not need to “significantly” or “severely” restrict a major life activity. It also does not need to limit the individual’s ability to perform activities of “central importance to daily life.”  For example, an employee with a 20-pound lifting restriction is “substantially limited” in lifting, and as such he/she does not need to demonstrate the inability to perform activities of daily life that require lifting in order to demonstrate that he/she is “substantially limited” in lifting.

An impairment may substantially limit a major life activity and qualify as a disability under the “actual disability” or “record of disability” prongs of the definition even if it lasts, or is expected to last, for fewer than six months of disability. However, “[t]emporary, non-chronic impairments of short duration … such as the common cold, seasonal or common influenza, a sprained joint, minor or non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely” usually will not be a disability.

Under the current regulations, whether an individual can perform a major life activity is compared to how an “average person in the general population can perform” a major life activity. Under the proposed regulations, whether an individual can perform a major life activity is “compared to most people in the general population,” often using a “common-sense standard, without resorting to scientific or medical evidence.” In addition, prior factors currently considered in determining whether an impairment is “substantially limiting”—specifically, the nature, severity and duration of the impairment and the permanent or long-term impact of the condition—are eliminated.

Major Life Activity
The definition of “major life activities” is expanded under the new regulations. Two non-exhaustive lists of activities and bodily functions are included.

The first list identifies the following activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, interacting with others and working. Three of these activities—reaching, sitting and interacting with others—are new and were not in the text of the ADAAA.

The second list identifies major bodily functions, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions. Many of the major bodily functions, such as special sense organs and skin, genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal are new and were not listed in the text of the ADAAA.

Substantially Limited in Working
Determination of whether an individual is limited in the major life activity of working is made under the current regulations by addressing whether an individual is limited in the ability to perform a “class” or “broad range” of jobs. The concepts of a “class” or “broad range” of jobs are replaced in the proposed regulations with the concept of “type of work.”

“Type of work” includes jobs with similar qualifications or job-related requirements. It can be determined by reference to the nature of the work such as commercial truck driving, assembly line jobs, food serve jobs, clerical jobs or law enforcement jobs, or to job-related requirements, such as repetitive bending, reaching or manual tasks; repetitive or heavy lifting; prolonged sitting or standing; extensive walking; driving; working under certain conditions, such as in workplaces characterized by high temperatures, high noise levels or high stress; or working rotating, irregular or excessively long shifts.
 
The proposed Interpretative Guidance notes that using the “type of work” standard means “evidence from the individual regarding his educational and vocational background and the limitations resulting from his impairment may be sufficient for the court to conclude” that he is substantially limited in performing a type of work. The statistical analysis previously required by some courts will not be needed and expert testimony regarding the types of jobs in which the individual is substantially limited generally will not be necessary.

Mitigating Measures
The regulations emphasize the ADAAA’s mandate that “mitigating measures” may not be considered in determining whether an individual is substantially limited in a major life activity. Therefore, even if a mitigating measure can correct or eliminate the effects of the condition, the individual will still be considered disabled.

Episodic Impairments or Impairments in Remission
Impairments that are episodic (i.e., epilepsy) or in remission (i.e., cancer) constitute disabilities if they would be substantially limiting “when active.” The proposed regulations reiterate this text from the ADAAA but do not provide a specific method for how to make this determination.

“Record of” a Disability
The proposed Interpretive Guidance eliminates the requirement in the current Guidance that an employer must have “relied on” a record of disability to establish coverage under this prong of the definition of disability. Whether an employer relied on a record of disability when making the decision is still relevant to the issue of whether the employer discriminated against the individual; however, it is not relevant to the question of whether the person is disabled because of a record of a disability.

“Regarded as” Having a Disability
An individual is regarded as disabled if he/she is subjected to an action prohibited by the ADA (i.e., discriminatory failure to hire, termination or demotion) on the basis of an actual or perceived impairment, regardless of whether the impairment limits or is perceived to limit a major life activity. The individual does not need to prove the employer regarded the impairment as substantially limiting, and an employer may be in violation of the ADA if action was taken based on a symptom of an impairment, even if the employer didn’t know about the impairment. For example, if an employer refuses to hire someone with a facial tic and the facial tic is caused by Tourette’s Syndrome, the employer is considered to have regarded the individual as disabled even though they did not know the individual had Tourette’s Syndrome.

For an individual to meet the requirements under the “regarded as” prong, the actual or perceived impairment must be more than minor and last six months or more. Even if an individual meets the requirements under the “regarded as” prong, the individual is not entitled to reasonable accommodations.

Summary
The basic three-prong definition of disability remains the same. The interpretation proposed by the EEOC regulations is summarized as follows:

• Prong #1—Impairment that substantially limits one or more major life activities
• Includes per se list of impairments that will consistently meet definition of disability
• Includes list of impairments that may qualify as substantially limiting for some
• “Substantially Limits”—Standard much lower
• Need not “significantly” or “severely” restrict a major life activity
• Need not limit ability to perform activities of “central importance to daily life”
• Compared to most people in general population using common-sense standard instead of scientific or medical evidence
• “Major Life Activities” - Two lists of activities and bodily functions included
• Substantially limited in working
• Concepts of “class” or “broad range” of jobs replaced with “type of work”
• “Type of work” includes jobs with similar qualifications or job-related requirements
• Statistical analysis and expert testimony no longer necessary
• Impairment may qualify even if it lasts or is expected to last for fewer than six months, but temporary, non-chronic impairments of short duration usually will not qualify as a disability
• Mitigating measures—must evaluate individual’s impairment as if untreated
• Impairment episodic or in remission—must evaluate impairment as if active

• Prong #2—Record of such an impairment
• Eliminates requirement that employer “relied on” a record of a disability for employee to establish they are disabled
• Record of such an impairment may qualify even if lasted for fewer than six months, but temporary, non-chronic impairments of short duration usually will not be a disability

• Prong #3—Regarded as having such an impairment
• Need not prove the employer regarded the impairment as substantially limiting 
• Impairment must be more than “transitory” (last more than six months) or “minor”
• Employee not entitled to reasonable accommodation
• Taking action based on a symptom of an impairment may put employer at risk

Conclusion  
The EEOC and Department of Justice’s Civil Rights Division held town hall meetings in Philadelphia, Chicago, San Francisco and New Orleans to share information and gather comments about the proposed regulations. Each town hall meeting consisted of two sessions, one for disability advocates and one for the employer community. The two sessions allowed opportunities for both the business and disability communities to comment in person. The EEOC will review comments, revise the regulations and either issue the regulations in final form or have another round of comment and revision.

The proposed regulations are not binding until issued in final form; however, the proposed version is important to know because it demonstrates the EEOC’s current views regarding the ADAAA. The regulations emphasize the determination of whether an individual is disabled should not be the primary focus under the ADA. Instead, the focus should be on the employer’s efforts to accommodate the employee. Therefore, employers will be better able to defend ADA lawsuits by showing they made a good faith effort to accommodate the employee rather than by challenging the employee’s disability.

It is important to note the NPRM only proposes revisions to the definition of “disability.”  The NPRM, like the ADAAA, does not change the ADA’s analysis of employer defenses such as what constitutes a reasonable accommodation or whether the accommodation requested would present an undue hardship or pose a direct threat.

You can view the NPRM directly at http://edocket.access.gpo.gov/2009/E9-22840.htm and the question-and-answer guide about the proposal at www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html.

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Employment Verification in South Carolina: Is Your Business Prepared to Comply with the S.C. Illegal Immigration Reform Act?
Melissa L. Azallion
Nexsen Pruet, Hilton Head Island

On June 4, 2008, South Carolina passed a comprehensive immigration law touted by many as one of the toughest immigration laws in the nation. Employers are greatly impacted and need to understand what lies ahead. Below we will focus on E-Verify—a “safe harbor” and main component of the new law.

Business Type
A business must first determine whether it qualifies as:
• a public employer
• a contractor (or subcontractor/sub-subcontractor)
• a private employer

Examples of public employers are cities, public school districts, etc. Although the term “contractor” seems fairly broad, the Act limits the definition to those businesses contracting with a public employer for the physical performance of manual labor where the contract value is at least $25,000 over a 12-month period (or $15,000 if the contract involves a political subdivision of the state). Private employers are those businesses that do not fall within one of the other two categories.

Size and Compliance Time Frames
On January 1, 2009, all public employers and contractors with at least 500 employees began complying with the Act. The law requires public employers to use E-Verify for all new hires, while contractors have the option to use E-Verify or comply with the license or identification rules described below for new hires. Contractors with 100 to 499 employees must have complied with the law by July 1, 2009, and those with less than 100 employees must comply by July 1, 2010.

Private employers have the option of using E-Verify or complying with the license or identification rules as well. If a business has more than 100 employees, the employment verification provisions went into effect on July 1, 2009, while those with less than 100 employees have until July 1, 2010 to comply.

Determining Size
For employers with multiple locations in South Carolina, determining the size of the business can be tricky. According to South Carolina Department of Labor, Licensing & Regulation (SCLLR) employee counts will be aggregated if the separate locations essentially operate as one entity (i.e., common control, same payroll, same Employer Identification Number, etc). If the entities are truly separate, they will be treated as separate entities for employee counting purposes.

E-Verify v. Driver’s License/Identification
Under the S.C. law, contractors and private employers may either “E-Verify” new hires or examine a state driver’s license or identification card in order to confirm the employee’s authorization to work in the United States. This must only be done for new hires, and the option selected by the employer must be consistent across the board for all new hires.

Remember that the S.C. employment verification provisions do not void the employer’s obligation to comply with the federal I-9 rules. Employers must still complete the I-9 form for all new hires within three days of hire. The employer examines the original documents presented by the employee and then records the appropriate information in Section 2 of the I-9 form. Federal law prohibits the employer from requesting specific documents from List A or Lists B and C from the employee.

If an employer elects to enroll in E-Verify in order to comply with the S.C. employment verification provisions (www.dhs.gov/E-Verify), the employer enters the I-9 information into the E-Verify system, which checks three databases—Department of Homeland Security, Social Security Administration and Department of State—to determine whether the employee is authorized for employment. The employer should keep a copy of the E-Verify result with the employee’s I-9 file. E-Verify is a “safe harbor” under the S.C. law, and the employer will not be deemed to have knowingly hired or continued to employ an authorized worker by relying upon an E-Verify result.

The employer can also examine the employee’s driver’s license or state identification card to confirm employment authorization. Some believe this approach is inconsistent with federal law, which precludes the employer from requiring certain documents to complete Section 2 of the I-9 form. Under this compliance method, the employee must either possess or qualify for a state driver’s license or identification card from South Carolina or from another state listed on LLR’s Web site (Note: There are approximately 22 states currently listed on the LLR Web site).

Federal v. State Compliance
Employers should maintain separate records to demonstrate their compliance with federal and state immigration laws. One suggestion is to have an I-9 folder with the documents presented by the employer and another folder with either the E-Verify result or a copy of the state driver’s license or identification card presented by the employee. Employers should consider presenting only the “state file” during an audit or investigation.

Enforcement
The SCLLR will enforce the employment verification provisions for private employers. On its Web site, LLR will publish a list of the industry classifications it intends to randomly audit in the near future. LLR may also audit a business based upon a written and signed complaint submitted to its office or based upon “good cause” that a violation has occurred. If there is substantial evidence that a violation exists, information may be shared with ICE (Immigration & Customs Enforcement) or state and local law enforcement authorities, and a penalty may be assessed.

Penalties
Under S.C. law, failure to verify a new hire’s status as described above may result in monetary penalties ranging from $100 to $1,000 per violation.

On July 1, 2009, all S.C. employers were given a S.C. employment license permitting them to hire and employ workers in the state. If the employment license is suspended or revoked, an employer may not hire and/or employ workers in South Carolina. If an investigation reveals that an employer knowingly and/or intentionally hired or employed unauthorized workers, the employment license can be suspended or revoked.

Finally, criminal penalties can be assessed if the employer or agent of the company engaged in harboring, shelter, concealing or other illegal conduct on behalf of an immigrant worker.

Conclusion
The past 12 months, and mostly likely the next few years, will be a time of transition for employers as they learn to comply with new state and federal immigration laws. Employee verification is often a key component of these laws. Staying abreast of the changes will save business owners time and money—and in this economy, every penny counts.

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Get Involved!
Below is a list of Section committees. If you are interested in serving on a committee, please contact the individual committee chair listed below.

Labor Management Relations Committee
Informs members of developing laws and policies under the National Labor Relations Act and deals with issues germane to union campaigns, elections and union administration and procedure.
Allan R. Holmes, aholmes@gibbs-holmes.com or (843) 722-0033

Equal Employment Opportunity Committee
Concentrates on all aspects of equal employment opportunity under federal and state law in both private and public employment, including: employment discrimination on the basis of race, color, national origin, religion, sex, age and disability; the interface of equal employment opportunity issues with collective bargaining situations under the National Labor Relations Act; use and validation of selection devices; affirmative action under Executive Orders 11246 and 11375; procedures and remedies in class action employment discrimination suits; and liaison with the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs and the Department of Justice.
Julia M. Ebert, ebertj@jacksonlewis.com or (864) 232-7000

Specialization Committee
Addresses a variety of specialization issues from providing suggestions to the board regarding the written examination and other specialization requirements to notifying individuals of specialization deadlines and requirements.
Debbie Durban, debbie.durban@nelsonmullins.com or (803) 255-9465

Membership Committee
Concentrates on membership development within the Section. The Committee’s goals are to increase membership, determine what benefits members most want, maintain a strong Section and to provide quality support.
Amy Gaffney, agaffney@glelawfirm.com or (803) 790-8838

Occupational Safety & Health Committee
Follows developments under the Federal Occupational Safety and Health Act and the Federal Mine Safety and Health Act, as well as various state plans through which occupational safety and health laws and regulations are enforced. The Committee provides members with updates on developments and trends in the occupational, safety and health area.
Hayne Hodges, hhodges@mcnair.net or (803) 799-9800

Immigration Law Committee
Keeps readers up to date with the latest developments in immigration law and related issues such as I-9 employment verifications. There are numerous agencies involved in or impacted by various aspects of immigration law, including the Department of Homeland Security, the U.S. State Department, the Social Security Administration, the U.S Department of Labor and even the IRS. Together with the provisions of the Internal Revenue Code, immigration laws and regulations are perhaps the most complex, and certainly more in flux, than any other body of federal law and regulatory provisions. Certainly few other issues arouse political passions more than immigration at the federal, state and local levels. Indeed, in the absence of comprehensive immigration reform encompassing illegal immigration, many states and local municipalities have waded into the immigration arena on issues as diverse as driver’s licenses, business licenses and the award of government contracts. The Committee will strive to inform our readers of key issues relating to immigration as they affect businesses and employees on the international, national and local levels.
Melissa Azallion, mazallion@nexsenpruet.com or (843) 689-6277

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Save the Date

2010 Bar Convention
January 21 – 24, Kiawah Island Golf Resort
Section Seminar is scheduled for Friday, January 22, 8:30-11:45 a.m.
To register, please visit www.scbar.org/convention.

Section Spring CLE & Reception
May 2010

NC/SC Employment & Labor Law Conference
October 22-23, 2010
Grove Park Inn, Asheville, NC

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Get Published

Kristine L. Cato
Rogers Townsend and Thomas
Synergy Business Park
220 Executive Center Dr., Ste. 109
Columbia, SC 29210
(803) 744-5270
kcato@rtt-law.com

In addition to your proposed article, please include your name, firm and your e-mail address so this information can be included in the newsletter.

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Disclaimer

This is a newsletter for the South Carolina Bar’s Employment and Labor Law Section. The South Carolina Bar and the Section council members reserve the right to refuse to publish any submission which is not consistent with their goals and standards. Articles that are published reflect only the opinions of their authors; they do not represent or reflect any positions held by the South Carolina Bar or the Section officers and council members. It is the policy of this newsletter that on all submissions of original articles, the authors assign their copyright in the work to the South Carolina Bar. Publisher may reprint, or authorize other entities to reprint, the material as deemed appropriate. The publisher has the right to authorize the reproduction, adaptation, public distribution and public display of the article as a contribution to this newsletter in electronic media, computerized retrieval systems and similar forms; such authorization includes use of the article anywhere in the world by means of public display, conversion to machine readable form and reproduction and distribution of copies. The South Carolina Bar is not required to secure the consent of the author before exercising the above named rights. In addition, the Bar has no duty or responsibility to negotiate, collect or distribute any royalties in connection therewith.

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