You and the Law



Farewell to 2009

By: Doug Ehlke

Friday, January 1, 2010
My hat’s off to all you survivors.  What a year. Freedom (our beloved Wisconsin white collie and best friend many of you came to know on my case travels) died. Charity (our beloved sable matriarch Missouri collie) died.

We helped many struggling, beloved family businesses in metalforming and manufacturing throughout the United States, with teamwork and guidance, survive mass layoffs, sales contract cancellations, threats, tooling ownership rights and recoveries, overtime pay claims, trade secret protections, EEOC discrimination claims, immigration disputes and prevention programs, and several major OSHA lockout/tagout during die setting victories. Our 2009 work and client emergency projects seemed nonstop.

My fervent wishes for all of us in 2010 are for a speedy rebound for all of our Main Street businesses with job creation and employment peace, along with family get-togethers and time for fishing.

What regulatory developments might we expect from Washington D.C. and related administrative agency regulators in 2010? Here’s a partial list:

EEOC (Employment Discrimination)

• Rapid spread of age discrimination complaints filed by replaced over-age-40 workers with high salaries, triggering long delays in agency investigations.

• Compensation comparison studies will be needed to be done by more employers to avoid claims of unequal pay for similar work and seniority workers —under the new Lily Ledbetter Fair Pay Act of 2009, under Title VII, and under comparable state employment laws.

• Tons of wage and hour law and wrongful termination claims, primarily over layoff selection and overtime pay.


• Inspection focus on forklift safety, lockout/tagout and lost-time inquiry reporting logs.

• Much higher penalties, in the $100,000 and up range, for multiple serious violations, including per-machine and per-employee willful multiplier citation penalties. This procedure recently was allowed to OSHA in a Review Commission decision, such as violations of the training standards where “the employer’s duty to train runs to each individual employee.” See Secy. Of Labor v. GM, 22 BNA-OSHC at 1046-48 (2007).

• Increased use of the infeasibility and lack of fair notice employer defenses, where OSHA stretches the meaning of general machine guarding and lockout/tagout performance standards.

Where can your legal counsel help employers related to these developments? Involve your employment law adviser or trial attorney in every phase of an EEOC or OSHA claim and investigation, especially in responding to the agency discovery questionnaires, in gathering factual witness statements and in claim-resolution mediation stages. Involve your employment counselor in every sensitive labor issue study and preserve attorney-client and work product privileges over all written investigation or consultant reports.

May 2010 be a better year.    MF


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