Looking Ahead in 2008
Employers need to make sure that their employment practices are in sync with the evolving legal landscape.
2008 has already seen changes to the Family and Medical Leave Act (FMLA), with the enactment of the Support for Injured Servicemembers Act (SISA), which requires employers to allow leave for employees with family members in the military. SISA also extends the 12 weeks of FMLA job protection to 26 weeks for employees who are the spouse, parent, child or next of kin of a service member who has incurred a serious injury or illness while in active duty. Employers will need to revise their policy manuals accordingly.
Other developments to watch out for:
- Proposed revisions to the FMLA regulations are moving closer to reality. On January 24, the Department of Labor sent proposed regulations to the White House for review, with the intent of publishing the regulations before President Bush leaves office.
- On January 18, 2008, the Supreme Court agreed to review whether the anti-retaliation protections of Title VII extend to employees who cooperate with an employer’s internal probe into sexual harassment even when no employee filed a claim.
Some interesting and instructive cases from 2007, with impacts in 2008 and beyond:
Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (2007), holding that a discriminatory wage claim under Title VII is triggered when an employer makes a discriminatory pay decision; it is not a continuing violation and each paycheck does not revive the claim.
LeMaitre v. Massachusetts Turnpike Authority, 70 Mass. App. Ct. 634 (2007), holding that a personnel manual, which contained no disclaimer, was a binding contract and that the employer could not revoke an employee’s right to unpaid sick leave, which he accrued under an earlier version of the manual, by unilaterally changing its policies.
Okeman v. VA Software Corp., 69 Mass. App. Ct. 771 (2007), holding that the Massachusetts Wage Act extends to highly compensated individuals and requires timely payment of commissions that are "definitely determined."
Freadman v. Metropolitan Property and Cas. Ins. Co., 484 F.3d 91 (1st Cir. 2007), holding that a disabled employee, who was dissatisfied with her employer’s proposed accommodation, could not succeed on a failure-to-accommodate claim because she failed to inform her employer of her concerns.