Title II of GINA Becomes Effective November 19, 2009

Title II of GINA Becomes Effective November 19, 2009 MARCH 01, 2010 On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act of 2008 (GINA). Title II of the Act applies to employers with 15 or more employees. Purpose of GINA. Advances in the fields of genetics and testing have now made it possible to identify individuals at risk for developing specific diseases and disorders. As this information becomes more accessible, the concerns about the use of such information by employers and health insurers become greater. Title II of GINA was enacted to prohibit employers from intentionally acquiring genetic information about applicants and employees and to protect the confidentiality of such information. Genetic information defined. The definition of “genetic information” includes not only an individual’s genetic tests, but also the genetic tests and medical history of family members. Prohibited practices. Employers are prohibited from requesting, requiring or purchasing genetic information of an applicant or employee. They are also prohibited from using such information in connection with the terms, conditions or privileges of employment. Confidentiality requirements. Employers who have possession of genetic information must keep it confidential and treat it the same way as medical information generally....

Keeping Secrets: Securing the crown jewels in a down economy

Keeping Secrets: Securing the crown jewels in a down economy APRIL 01, 2009 I got a panicked call last week from a client who had just laid off one of his senior managers. New to this heartwrenching process, this CEO had spent weeks running the numbers and hammering out what he thought would be a fair severance package. He had drafted his announcement to the staff and mapped out a transition scenario. He had scripted, rehearsed, and re-rehearsed the termination interview. He had carefully timed the interview, which, while painful, had gone essentially according to plan. Believing that he had handled the termination as well as he could, my client finally was able to get a full night’s sleep. But while driving to work the following morning,my client realized that there was one very important thing that he had missed: he had done nothing to secure the highly confidential and valuable company information to which his former manager had had free access, information that could cause my client irreparable harm were it to fall into the wrong hands. In the world of intellectual property law, confidential information that provides a company with an advantage over its competitors is protectable as...

Americans With Disabilities Act Amendments Act Of 2008

Americans With Disabilities Act Amendments Act Of 2008 FEBRUARY 01, 2009 President Bush signed the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) on September 25, 2008, and its changes took effect on January 1, 2009 . The ADAAA represents the first major revision to the Americans with Disabilities Act since its enactment in 1990 and expands the number of individuals who qualify for its protection. The changes apply to all employers covered by the ADA : those with fifteen or more employees for twenty or more weeks in the current or previous calendar year. The ADAAA maintains the ADA ‘s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it makes several important changes. Notably, the ADAAA: rejects the U.S. Supreme Court’s interpretation that “substantially limits” means “prevents or severely restricts” and calls for a lower standard prohibits the consideration of mitigating measures such as medication, hearing aids or accommodations (besides ordinary eyeglasses or contact lenses) in determining whether an impairment constitutes a disability; expands and clarifies what fits within the definition of “major life activities,”...

New FMLA Regulations Released: Implications For Employers

New FMLA Regulations Released: Implications For Employers FEBRUARY 01, 2009 On January 28, 2008, President Bush signed amendments to the Family and Medical Leave Act of 1993 (FMLA) into law. On November 17, 2008, the United States Department of Labor (DOL) published its Final Rule to implement these amendments. These regulations, which are the first in the FMLA’s fifteen-year history, took effect on January 16, 2009. Highlights of the regulatory changes in the Final Rule include: Changes to employee eligibility. To be covered under the FMLA under the old rules, an employee had to be employed by the employer for at least 12 months and work at least 1250 hours during the 12 months preceding the start of the requested FMLA leave. Those 12 months were not required to be consecutive, so any employment, regardless of gaps in employment, with that employer counted toward the eligibility period. Under the Final Rule, periods of employment before a break in employment of seven years or more are not counted in determining whether an employee has been employed for 12 months, subject to some exceptions. Additionally, employees taking leave due to military obligations must be credited for the hours of service they would...

COBRA Amendments Under The American Recovery And Reinvestment Act Of 2009

COBRA Amendments Under The American Recovery And Reinvestment Act Of 2009 FEBRUARY 01, 2009 The American Recovery and Reinvestment Act of 2009 (“the Act”), recently signed into law by President Obama, contains provisions regarding COBRA benefits that require prompt attention on the part of employers and health plan administrators. Below is a summary of some of the more significant provisions of the Act affecting COBRA continuation coverage. Primarily, the Act establishes a 65% subsidy of COBRA premiums for certain individuals. Under the new law, an employee who is otherwise a qualified beneficiary of COBRA coverage and who is (or was) involuntarily terminated between September 1, 2008 and December 31, 2009 is eligible for the premium relief. These eligible individuals will be treated as having paid their COBRA premiums in full if they pay 35% of the premium amount. The entity to which the premiums are payable will be reimbursed for the remaining 65% through a tax credit applied against its payroll tax assessments. Should the entity’s subsidy amount be greater than its payroll tax liability, the excess amount will be treated as an overpayment of taxes and either refunded or credited. Depending on the type of health plan involved, the...

Giving Back to the Future

 JANUARY 01, 2009 Volunteering time and expertise is an important component in our vibrant community-and good business to boot. Helping lead a great nonprofit organization is a privilege and an investment in our quality of life, personally and professionally. It’s hard to say who gets more out of it. Community service is a habit. Several years ago, when I lived in Windsor, Massachusetts, I served on the finance committee, Board of Selectmen, and Planning Board at various times. Those experiences and my work as a real-estate attorney have given me firsthand experience in the development pressures facing towns across the state. But more to the point, municipal service grounded me in my community and helped me understand the disconnect residents sometimes feel between a vibrant business community and our quality of life in the Berkshires. A healthy economy, healthy people, and healthy communities are all inextricably linked, and my community service today is focused on the organization I chair, the Trustees of Reservations. Despite the odd nineteenth-century name, the Trustees is very much an organization for today – and tomorrow – helping to preserve Massachusetts’s landscapes and landmarks for everyone, forever. Being involved – offering my time and expertise –...

New Massachusetts Law Mandates Triple Damages for Employer Wage and Hour Violations

New Massachusetts Law Mandates Triple Damages for Employer Wage and Hour Violations JULY 01, 2008 On April 14, 2008, the Massachusetts legislature passed a bill (Senate Bill 1059) entitled “An Act to Clarify the Law Protecting Employee Compensation”. This law amends Massachusetts’ wage and hour laws, and mandates that employees who prevail in an action under the Commonwealth’s complex wage and hour statutes collect treble damages – three times the amount of actual damages. The new law became effective July 13, 2008. This law is controversial as it makes treble damages mandatory for any violation of the wage and hour laws – even inadvertent violations and violations that occur despite an employer’s good faith efforts to comply with the Massachusetts wage and hour statutes. Until now, awards of treble damages were within the discretion of judges presiding over wage cases, who could take into account factors such as whether the employer acted in good faith or in willful violation of the laws. The automatic penalty imposed by the new law may encourage employees, and employees’ lawyers, to initiate large-scale class action lawsuits against employers in Massachusetts. The new law followed an interesting and unusual course. The Massachusetts Legislature initially submitted...

Cain Hibbard & Myers PC Supports Project Sprout

Cain Hibbard & Myers PC, Berkshire County’s oldest and most diversified law firm, announces its enthusiastic support of Project Sprout with a check for $1,000.00. Project Sprout, the brainchild of Monument Mountain Regional High School’s “Green Team”, is a sustainable food project with the ambitious plan of supplying organic fruits and vegetables to the school cafeterias of the Berkshire Hills Regional School District. Cain Hibbard has a long history of supporting public school initiatives. Lucy Prashker, a managing partner in the firm and an active member of the Berkshire County Enrichment Initiative, stated, “Project Sprout’s objectives — reducing our carbon footprint, promoting local agriculture, and getting healthier foods into our student cafeterias — are all extremely important ones. We were impressed not just by these objectives but by the freshness and determination that the students have brought to the project. The students’ energy, determination and can-do-it-ness are infectious and irresistible.”