Friday, December 19, 2008

A New Protected Class: Ugliness?

Over at the Ohio Employer's Law Blog, Jon Hyman has an interesting discussion on the proposal to add ugly to the protected classes under labor law and employment laws.

To wit, Hyman writes:

"Under the current state of the law, it is illegal to discharge, to refuse to hire, or otherwise to discriminate with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of: race, color, sex, religion, national origin, ancestry, age, disability, genetic information, military status, and veteran status. I am fairly confident that 2009 will add sexual orientation, and possibly gender identity, to this list."
Now, the argument for adding ugly to the protected classes is to prevent discrimination based on looks, of course. Some, maybe most, employers prefer hiring good-looking people as they are perceived to be sharper, sexier and better, more trustworthy workers.

However, since beauty is in the eye of the beholder, how could the courts or regulatory agencies ever agree on how to define ugly so as to have a workable law?

Thursday, December 18, 2008

Minimum Wage Laws: Helpful or Hurtful?

It's hard to argue that any law that can potentially elevate people from poverty or substandard living conditions is bad. Such, however, is the case with the minimum wage laws of our nation, which began in 1938 with the Fair Labor Standards Act (FLSA) and have now taken root not only in state legislatures but in city halls as well.

The effectiveness of these laws is--seven decades later--fair game for debate. Some argue that minimum wage laws have no adverse effect on employment of certain groups of people (such as the unskilled and the young), while others maintain that minimum wages reduce employment at the fringes.

A lot of it depends on one's political perspective and/or business involvement (owner, manager, et al.).

Now comes a book by a professor of economics at UC Irvine and an associate director of research for the Federal Reserve, which argues that minimum wage laws indeed lower employment and reduce (not raise) wages overall.

In Minimum Wages, David Neumark and William Wascher argue that their two decades of research reveal that these laws do not achieve their goals. Instead, they reduce employment opportunities for less-skilled workers and tend to reduce their earnings; they are not an effective means of reducing poverty; and they appear to have adverse longer-term effects on wages and earnings, in part by reducing the acquisition of human capital.

Still, there's no stopping the political will power to raise the minimum wage. The federal rate will go up to $7.25 next July 24, while states and even municipalities are beating that figure and that onset date with minimum wage laws' taking effect on New Year's Day. Washington is the highest of the states at $8.55 an hour, while San Francisco--at $9.79--and Santa Fe--at $9.92--are highest overall.

I've certainly seen many anecdotal news videos in which business owners say they've already laid someone (or someones) off in anticipation of the new minimum wages, spreading their work around or doing it themselves, to lead me to believe that minimum wage laws can indeed backfire.

However, politics is politics, and the minimum wage phenomenon is here to stay.

Up next--the minimum wage as living wage?

Wednesday, December 17, 2008

ADA Amendments Act Will Greet the New Year

The Americans With Disabilities Act (ADA), originally passed in 1990, sought to open up employment in the private sector to persons with physical or mental disabilities who were otherwise perfectly capable of performing the required duties. The ADA brought to private enterprise what the 1973 Rehabilitation Act did for federal agencies and firms carrying out federal contracts.

Through the years, though, the Supreme Court kept nibbling away at the definition of disability to the point that the ADA lost almost all its teeth.

Voila--the Americans With Disabilities Amendment Act (ADAAA), signed into law this year by President Bush. The ADAAA clarifies exactly the intended definition of disability and throws in another category, "regarded as disabled." Taken together, the two categories--disability and "regarded as disabled"--pretty much cover every human being alive.

In fact, the ADAAA basically states that employers should accept at face value an employee's announcement of an impairment or disability that requires a reasonable accommodation. (There's one out clause--if the accommodation involves "undue hardship" for the company and its operations, then it might not be considered "reasonable.")

If you don't believe me, read this definition of "regarded as disabled": "[A]ctual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

(Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.)

My question is this: If an employee, for instance, has sleep apnea and thus is tired in the daytime, would a "reasonable accommodation" include a sleep break or two or three? A specially cushioned chair so as to be able to drift off into slumber when necessary?

I'm only half joking, but I think you get the idea that the ADAAA has significantly broadened the scope of what constitutes a disability.

Meanwhile, I'm relying on my old friends at Personnel Concepts to keep me updated on all this. In fact, the company has already issued its ADAAA Compliance Kit.