October 7, 2009 - Bills introduced in both the House of Representative and Senate aim to make age discrimination easier to prove. This proposed amendment to the Age Discrimination in Employment Act (ADEA) is contained in S.1756 and H.R.3721 and seeks to overturn the Supreme Court decision Gross v. FNL Financial Services, Inc., 129 S.Ct. 2343 (6/22/09) where the court ruled that a Plaintiff must prove that age was the “determining factor” in the employment decision.

Under this amendment titled The Protecting Older Workers Against Discrimination Act, the Plaintiff would only have to prove that age was only a motivating factor in the employment decision. Using this standard, an age discrimination plaintiff may still win if the court or jury determines that his/her age was one of the factors that resulted in the challenged employment decision even if other factors exist.

If passed and signed into law, this legislation will make it easier for victims of employment discrimination to win in court because they would only have to prove that their age was a factor in the decision as opposed to the “determining factor” as defined by the Supreme Court.

In May 2009, Senator Russell Feingold (D-Wis) introduced the Arbitration Fairness Act (S. 931) which bars mandatory arbitration of employment-related and civil rights claims unless required by a collective bargaining agreement. A companion bill is also pending in the House of Representatives (H.R. 2010). This legislative action aims to overturn the Supreme Court decision in Circuit City Stores v. Adams, 532 U.S. 105 (2001) which upheld mandatory arbitration of Title VII cases employment discrimination cases.

Proponents of the bills claim that the mandatory arbitration of employment and civil rights claims results in the loss of major rights of employees because the arbitration agreements are typically signed when employees are new with no bargaining power. They also claim that such agreements are typically not the result of a fair and bargained exchanged. Instead, they are given to new employees to sign on a take-it-or leave-it basis with measures that are significantly unfair to employees.

Opponents of the measures claim that arbitration is an efficient and cost-effective manner of disposing employment disputes that otherwise would be very lengthy and costly if required to go through the court systems. Mandatory arbitration, they claim, result in quicker resolution and recovery for employees with less tension and employee turnover.

The Illinois Supreme court has issued a ruling in a sexual harassment case involving harassment by a supervisory employee. The Court ruled that an employer is liable for its supervisor’s sexual harassment whether or not the supervisor is in the victim’s chain of command. The liability is also strict even where the supervisory employee has no power to affect the terms and conditions of the victim’s employment. As such, it does not matter whether the harassing supervisor or manager has the power to hire, fire, discipline, promote or demote employees. Under the ruling, sexual harassment by anyone employed in the position of supervisor or manager will result in direct liability for the employer under the Illinois Human Rights Act.

The Illinois Supreme Court reached this conclusion by relying on the plain language of the Illinois Human Rights Act statute. Under the statute, employers are liable whether or not they had knowledge of the harassment by the supervisory employee. It also does not matter what action the employer took to remedy the harassment. The court also concluded that Illinois law does not permit employers to assert the defenses that are available for such employers in federal court for cases brought under Title VII of the Civil Rights Act of 1964.

For sexual harassment committed by non supervisory or managerial employees on the other hand, employers are only liable if they fail to take appropriate remedial action or were otherwise negligent in discovering or responding to the sexual harassment.  [Read the entire Illinois Supreme Court ruling]

April 30, 2009 - The Department of Homeland Security issued a memorandum announcing a shift in worksite enforcement strategy by ICE. Under this new policy, ICE will focus enforcement on prosecuting employers who knowingly hire illegal aliens. ICE will also look for the mistreatment of workers. This policy will not emphasize workplace raids.
 [Review the ICE Worksite Enforcement Policy Change].

July 1, 2009 - The USCIS has served 652 businesses with audit notices by issuing Notices of Inspection (NOIs) to 652 businesses nationwide. This bold initiative by the U.S. Immigration and Customs Enforcement (ICE) is the largest initiative ever pursued by ICE in such a period.

The notices alert businesses that ICE will be inspecting their hiring records to determine whether the businesses are complying with the I-9 employment eligibility verification requirements. The businesses that are subject to the notices were selected based on leads and information obtained through other investigative means.

 [Read the USCIS Memorandum Regarding the Audit Notices]