LexUniversal | News

United States: Electronic Discovery Act Becomes Law in California, Effective Immediately

2009-07-03

On June 29, 2009, California Gov. Arnold Schwarzenegger signed the state’s Electronic Discovery Act (“the Act”) into law, implementing new rules for electronic discovery in California civil cases. The Act closely tracks the 2006 amendments to the Federal Rules of Civil Procedure, and institutes uniform processes and procedures for the discovery of electronically stored information in California court proceedings. The governor vetoed a similar bill last year, to allow him to devote attention to the more-urgent state budget crisis. The bill signed into law on June 29 passed both legislative houses unanimously and, as an urgency statute, is effective immediately.

The Act establishes procedures for the discovery of electronically stored information, and serves to extend the Civil Discovery Act—which requires the production of hard-copy documents as they are kept in the usual course of business—to the production of electronically stored information. Furthermore, the Act defines the manner in which parties may seek protective orders regarding demands for production, inspection, copying, testing or sampling of electronically stored information, on grounds that the information is not reasonably accessible because of undue burden or expense. Significantly, the Act provides that a court shall not impose sanctions on a party or an attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered or overwritten as a result of the routine, good-faith operation of an electronic information system.

The Act includes other significant modifications to existing laws on electronic discovery, including:

Electronically stored information must be produced in the form in which it is ordinarily maintained, or in a form that is reasonably usable.
Where a party responding to a production request for electronically stored information objects to a specified form for production, or if no production form is specified in the demand, the responding party shall state in its response the form in which it intends to produce each type of requested information.
Where a demand for production does not specify the form for producing electronically stored information, the responding party must produce the information in a form in which the information is ordinarily maintained or in a form that is reasonably usable, but need not produce the same electronically stored information in more than one form.
A party may object to production on the grounds that the material is not reasonably accessible because of undue burden or expense, and must bear the burden of demonstrating the validity of the objection. Even if the objecting party establishes that the electronically stored information is from a source that is not reasonably accessible because of undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause, subject to specified restrictions.
The existing rules on sanctions that pertain to hard-copy discovery are now applicable to electronic discovery; but as stated above, the Act prohibits imposition of sanctions for failure to provide electronically stored information that has been lost, damaged, altered or overwritten as the result of the routine, good-faith operation of an electronic information system.
The procedures for production of electronically stored information delineated in the Act apply, with some limitations, to third parties who are compelled to produce information in response to valid subpoenas. In light of the significance of California’s Electronic Discovery Act, and anticipated judicial interpretations, additional analysis about this statute will be provided in the coming months.

United States: Google Books Settlement May Violate Antitrust Law, DOJ Contends

2009-07-03

A pending settlement between Google Inc. and groups representing authors and publishers could violate antitrust law, the U.S. Department of Justice says in a letter to the federal judge in the Southern District of New York who is overseeing the case.

Although the DOJ has made no finding that antitrust law would, in fact, be violated by the planned settlement concerning Google’s plan to make a large number of books available online, it is investigating the settlement, reports the New York Times.

“This is the next step in the notion that this is a serious issue, so serious that the Justice Department needs to notify the court,” attorney Gary Reback of Carr & Ferrell tells the newspaper. “It sets the stage to for the department to come into the court to present a problem.”

A spokeswoman for the DOJ says the antitrust division “is investigating the possibility of anticompetitive practices involving digital book intellectual property rights and distribution,” but declined to discuss the matter further, reports CNet.

In a written statement, Google says: “The Department of Justice and several state attorneys general have contacted us to learn more about the impact of the settlement, and we are happy to answer their questions. It’s important to note that this agreement is non-exclusive and if approved by the court, stands to expand access to millions of books in the U.S.”

Sweden: Competition: Commission takes firm action to ensure effective and competitive energy market across Europe

2009-07-03

The Commission has taken firm action against 25 Member States, including Finland and Sweden, with the aim of ensuring that consumers and companies benefit from real choice, better prices and enhanced security of supply that only an open and competitive energy market can guarantee.

The Commission states that it will send the Member States letters of formal notice for not complying with applicable gas and electricity regulations. Some Member States will also receive a letter of formal notice for maintaining a system of regulated prices in violation of EU directives on electricity and gas. According to the Commission, the key violations concern, inter alia, the lack of information provided by electricity and gas transmission system operators (“TSOs”), obstructing effective access of supply companies to networks, and the lack of coordination and cooperation across boarders by electricity TSOs and national authorities.

Further, the Commission states that gas TSOs should make efforts to maximize available capacity in order to optimize opportunities for market entrance and competition. The Commission states that the creation of an integrated European energy market is a key factor in improving the security of supply and in creating a genuinely competitive energy market in Europe, which is directly in the interest of European consumers. Source: Commission Press Release 25/6/2009

Latvia: Letônia - Rights to Impose Interim Measures in Consumer Rights Cases

2009-07-03

The 21 May 2009, amendments to the Consumer Rights Protection Law have substantially increased the powers of the Latvian Consumer Rights Protection Center.

Thus, in all cases when the Consumer Rights Protection Center has a reason to believe that the consumer’s rights have been or may be breached, and it may cause an immediate and substantial harm to economic interests a specific consumer group, the center may order the relevant manufacturer, seller or service provider to cease immediately the breach, or may prohibit the action of the manufacturer, seller or the service provider which may cause the breach.

These measures may be appealed in the administrative courts but only within 10 days after they have been imposed. The appeal will not suspend the measure. The court’s decision in the appeal is not subject to any further appeals.

United States: Layoffs a ‘Blessing’ for Now-Liberated Former BigLaw Attorneys, Writer Says

2009-07-02

Few may have realized it when Calawalader Wickersham & Taft last July became the first major firm to initiate what eventually became a tsunami of BigLaw associate layoffs during the past year.

But Calwalader and the other law firms involved were actually doing many associates a favor, writes attorney Dan Slater in the DealBook blog of the New York Times today.

“These layoffs, which in many cases have been paired with salary freezes or cuts and significant reductions in law school recruiting, are the best thing to happen to the legal industry in years. Call it a blessing amid recession,” he says.

In addition to cutting costs for corporate clients, lawyer layoffs have effectively saved attorneys from their own high-billing selves, Slater contends. As with a romantic relationship gone bad, only a forced exit from the pressure of law practice can make clear to some that they are better off without it, he says. “What they needed all along was liberation. Now they have it.”

A former writer for the Wall Street Journal Law Blog, Slater is now a freelance journalist.

United States: Tips on Re-Entering the Legal Profession After a Hiatus

2009-07-02

In a column this week posted at examiner.com, working mom and practicing New York lawyer Amy Impellizzeri writes about a Web-based company aimed at helping women re-enter the workforce after spending time rearing children.

After interviewing a co-founder of the company iRelaunch, Impellizzeri posted several tips for women lawyers looking to get back into the profession, including checking out career re-entry programs like the ABA’s Back to Business Law pilot project.

Among the re-entry tips:

Volunteer to write legal briefs for a local appeals bureau.

Teach an adjunct class at a local law school.

Set up career re-entry events for the local bar association.

Check with local law firms to see if there is overflow work that you can do on a per diem basis.

Finland: New Requirements for the Product Specifications of Products with Protected Product Names

2009-07-02

As of 1 May 2009, the product specifications of products included in the EU Register of Traditional Specialities Guaranteed on Agricultural Products and Foodstuffs shall in accordance with Regulations 509/2006 and 510/2006 include a related EU logo or a reference to the fact that the product name is protected. In the EU, protection for product names may be applied for a product that has been manufactured in a traditional way in a certain geographical area, or by using a certain manufacturing method for several generations.
The purpose of the product indications applied in the EU is to protect established names of agricultural products and foodstuffs against misuse and imitations. For the consumer, the protection is a guarantee that the origin, raw material and production methods are known.

There are three schemes for protecting product names in the EU. PDO (“protected designation of origin”) and PGI (“protected geographical indication”) guarantee the production and manufacture of the products in a certain traditional geographical area. The third scheme, TSG (“traditional speciality guaranteed”), protects the traditional manufacturing method of the product. These schemes apply to all Member States, which means that the registered names are protected in the whole Community territory.

So far, five product names that originate in Finland and more than 800 product names in the EU have been protected by these schemes. The protected names include, inter alia, Italian parma ham and Finnish traditional reindeer meat from Lapland.

Finland: Merger control (Finland): Finnish Competition Authority amends conditions imposed on Valio in two merger clearance decisions

2009-07-02

The Finnish Competition Authority (“FCA”) amended, at the request of Valio Oyj (“Valio”), the conditions imposed on Valio concerning the pricing of its raw milk in two merger clearance decisions. The conditions were imposed in Valio’s acquisition of Kainuun Osuusmeijeri, Osuuskunta Maito-Pirkka and Aito Maito Fin Oy in 2000, and in Valio’s acquisition of Meijeriosuuskunta Milkan Vöyri in 2004.

In order to receive approval for these acquisitions, Valio had committed, inter alia, to sell 185 million liters of raw milk to potential competitors independent of Valio. According to the conditions imposed on the clearance of the two acquisitions, the pricing of the quota of raw milk shall be based on Valio’s costs. However, during the past few years, the quota of raw milk has increasingly been purchased as skimmed milk.

This has caused losses for Valio which were not intended by the pricing conditions. Therefore, the FCA amended the part of the condition concerning raw milk that contains regulations on the pricing of skimmed milk and milk containing less than 4.2% fat. The amended conditions take effect on 1 January 2010. Source: The Finnish Competition Authority (www.kilpailuvirasto.fi) 25/6/2009

United States: Delays in LCA Approvals and H-1B Filings

2009-07-01

The Department of Labor (DOL) has implemented a new iCERT system that will allow users to set up one account and utilize that account to file Labor Condition Applications (LCAs) for H-1B petitions and to file PERM labor certification applications. Currently, the iCERT system is only available for purposes of establishing user accounts and filing the new LCA (Form 9035E).

The DOL previously postponed the date for mandatory iCERT system use for LCAs. The delay allowed for the continued use of the existing LCA system through June 30, 2009 while the DOL fixed problems identified by users during the initial implementation.

The old system will be taken down at the end of day on June 30, 2009, and the new iCert system will become mandatory beginning July 1, 2009. Under the iCERT system, LCAs filed will take up to seven business days for certification. From a practical standpoint, this means that the timeline for filing an H-1B, H-1B1, or E-3 petition will increase since these petitions must be filed with certified LCAs. Instead of being able to obtain a certified LCA instantly, as is generally possible with the current system, employers will need to wait up to seven days to obtain the certified LCA. This will most dramatically affect the process of H-1B portability, which enables a new hire in H-1B status to start working upon the filing of an H-1B petition by a new employer on his or her behalf.

United States: Even If Billable Hour is Banned, Some Lawyers Still Want to Account for Time

2009-07-01

Amidst the dismal economy, layoffs, pay cuts and constant pressure to work more efficiently for corporate clients is some definite good news, one might think: As law firms increasingly embrace alternatives to charging clients on a billable-hour basis, there may foreseeably come a time when lawyers no longer must submit daily timesheets itemizing the minutes they spent on client matters.

Think again. Even as some lawyers are envisioning a potential billable-hour-free practice with a breath of relief, others are arguing that practitioners should still render a detailed accounting of their work every day … in order to be more efficient, recounts a Law21 post today summarizing a growing debate on the issue. Otherwise, the argument goes, how is a law firm to measure the value of the work its associates do?

Not everyone, of course, agrees with this view.

“Associates are overhead. Just like coffee filters,” writes partner Jay Shepherd of the Shepherd Law Group in a Client Revolution post earlier this month. And, just like office rent, associate time isn’t something clients want to pay for, he argues. Hence, tracking how an associate spends his or her time is—or should be—pointless.

“Profit is revenue minus expenses. The question is whether the firm is profitable, not whether an associate or a client is profitable,” he writes. “The relevant question for a client is whether you’re delivering enough value to the client to justify the best price they would pay. The relevant question for an associate is whether he or she does good work for your clients.”

Sweden: New rules on Compensation of Severe Environmental Damages

2009-07-01

New legislation on the restoration of environmental damages will enter into force on 1 July 2009. The purpose of the new legislation is to intensify businesses’ liability for severe environmental damages. As a main rule, businesses are strictly liable for the environmental damages. Said new legislation implements Directive 2004/35/EC and amends, inter alia, the Finnish Nature Conservation Act and the Gene Technology Act.

According to the new legislation, a business has a strict liability for the restoration of the environment and the damages caused to the environment (water, soil, protected species, etc.). As such damage can be considered, inter alia, the destruction of the living environment of a protected species.

The core idea of the new legislation is that the business shall restore the environment to the state in which it would be without the act causing the damage. The damage shall be assessed based on the deterioration of the natural resource in question. The new legislation assumes that the damage shall result from illegal acts. If the environmental damage is caused by an accident, the liability of the business will be adjusted.

Finland: Competition (Sweden): Swedish Competition Authority receives permission to further investigate suspected abuse of dominant position by Arla Foods AB

2009-07-01

The Stockholm District Court granted the Swedish Competition Authority (“SCA”) permission to further investigate the digital material that the SCA copied during its unannounced inspection at the premises of Arla Foods AB (“Arla”) on 28 April 2009.

The investigation was initiated in April 2009, as the SCA had reason to believe that Arla had abused its dominant position in the market for the delivery of dairy products to grocery stores by making exclusive contract arrangements with Coop and Axfood. However, the inspection at Arla’s premises and review of the copied materials revealed that Arla’s exclusive contract arrangements were not limited to the contracts with Coop and Axfood.

According to the SCA, several documents examined by the SCA indicate that the exclusive strategy Arla applied towards Coop and Axfood is only a part of a wider plan to completely shut competing companies out of the market. The documents indicate that Arla may also have exclusive contract arrangements with ICA, Netto, Bergendals Group and/or Lidl. The purpose of further investigation is to search for evidence to prove Arla’s breach of competition rules. Source: The Stockholm District Court decision, Ä 9689-09

United States: U.S. Supreme Court Upholds States’ Right To Impose Laws on National Banks

2009-07-01

On Monday, the U.S. Supreme Court held in Cuomo v. Clearing House Association, LLC that although the National Bank Act pre-empts states from supervising and overseeing nationally-chartered banking institutions, it does not pre-empt states’ efforts to enforce their laws against those banks. As the Court put it, “the question presented is whether the [federal Office of the Comptroller of the Currency’s] regulation purporting to pre-empt state law enforcement” is a valid interpretation of the National Bank Act. The Court answered the question with a resounding “no.”

The case involved an attempt by the Comptroller and a banking trade group to enjoin former New York Attorney General Eliot Spitzer’s efforts to obtain information from several national banks through a request “in lieu of subpoena.” Mr. Spitzer sought to obtain non-public information about lending practices so the State could evaluate whether the banks had violated state fair-lending laws. The crux of the Court’s legal analysis revolved around whether regulations enacted to implement the National Bank Act’s prohibition on states’ exercise of “visitorial powers” also barred states’ law enforcement efforts. The Court concluded that “visitorial powers,” which generally involve the supervision, control, and oversight of banks’ affairs, were “quite separate” from powers to enforce laws, and that states were free to use judicial law enforcement proceedings to enforce state laws against national banks.

In the end, the Supreme Court held the lower courts correctly enjoined Mr. Spitzer’s efforts because those efforts did not involve the “exercise of the power of law enforcement vested in the courts of justice which [the National Bank Act] exempts from the ban on exercise of supervisory power.” However, the Court observed that New York’s Attorney General could initiate judicial proceedings against national banks to enforce the State’s fair-lending laws.

In light of the current financial climate, the Supreme Court’s decision likely will spur states to enact new legislation aimed at banking activities and state attorneys general to increase their enforcement efforts. It can be expected that inevitably some new piece of state legislation will push the line between law enforcement and “visitorial” efforts.

United States: ICE Launches National I-9 Audit Initiative

2009-07-01

Beginning today, Immigration and Customs Enforcement (ICE) has launched a national Form I-9 Audit Initiative. It is expected that each Special Agent in Charge (SAC) will initiate multiple I-9 audits in each ICE jurisdiction today. The overall number of audits initiated in today’s first wave could exceed several hundred nationwide.

BAL Comment

The large-scale Form I-9 Audit Initiative launched today represents the first step by Secretary Napolitano to focus worksite enforcement efforts on employer compliance. We anticipate that the number of I-9 audits will increase in the coming months. BAL recommends that all employers who receive a notice of audit consult with counsel as quickly as possible. BAL also recommends that all employers take steps to review their compliance practices to date and to ensure that they maintain the strongest compliance profiles.

Lithuania: Law on Amendment and Supplement to the Competition Law of the Republic of Lithuania

2009-06-30

On 9 April 2009, the Seimas adopted the Law on Amendment and Supplement to the Competition Law of the Republic of Lithuania (the “Law”). The Law is adopted to create legal premises for more efficient protection of fair competition. This Law enforces the Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (the “Regulation No 1/2003”).

The Law says that particular concentration performance conditions and commitments may be established not only for the purpose of prevention of creation or strengthening of a dominant position (as was till now), but also seeking to avoid too severe restrictions of competition on a relevant market.

The Law also establishes the right of the Competition Council to adopt confidential resolutions. If the Competition Council did not have the right to keep resolutions on initiation of investigation confidential for a certain time, the Competition Council’s investigations, in particular as regards the most severe violations of competition (prohibited agreements and abuse of dominance), were inefficient in the sense of evidence collection, because the main evidence of such violations are located at the premises used by business entities and can be easily destroyed if information of intended investigation is known in advance.

Regulation No 1/2003 grants the European Commission extensive authority when performing the duties imposed thereon by this Regulation. The Commission is vested with the right to seal any business premises and books and documents for the period and to the extent which might be necessary for inspection, as well as the right to carry out inspections not only at the premises used by a business entity, but also in private places of residence of employees of the business entity. Taking into consideration such provisions of Regulation No 1/2003 and the fact that investigations by the Competition Council are becoming more complicated and identification of violation of competition rules is becoming more difficult, relevant rights of authorized officers of the Competition Council are also established in the Competition Law, according to which private places of residence may be inspected only if there is suspicion of breach of Articles 5 or 9 of the Competition Law or Articles 81 or 82 of the Treaty establishing the European Community.

Estonia: Estonia - Gambling Tax Act

2009-06-30

On 22 April 2009, the Riigikogu adopted the Gambling Tax Act. The new act changes the current regulation of gambling taxes, specifies tax rates and regulates several new types of games. As a rule the calendar month is the period of taxation.

Under the new act, taxes are imposed on trade lotteries, gambling machines used for organizing games of skill, totalisator and betting. The tax rate for number lotteries is increased from the current 10% to 18%. The existing Gambling Tax Act is repealed and the new act entered into force on 1 June 2009.

United States: EEOC One Step Closer to Issuing Proposed Regulations Under the ADAAA

2009-06-29

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) went into effect on January 1, 2009, imposing sweeping changes to the Americans with Disabilities Act (ADA). Since then, employers and individuals have anticipated Equal Employment Opportunity Commission (EEOC) regulations to further delineate the expanded definition of a “disabled” individual as well as the “rules of construction” set forth in the ADAAA.

On June 17, 2009, the EEOC voted to approve a proposed Notice of Proposed Rulemaking (NPRM) under the ADAAA. The proposed NPRM has been sent for comment by other federal agencies and for approval by the Office of Management and Budget. When this process is completed, the NPRM will be published in the Federal Register for public comment.

While the proposed NPRM has not yet been published (and is therefore not publicly available), the remarks of the EEOC assistant legal counsel at the June 17, 2009, public meeting provide insight into the proposed NPRM and, thus, the mindset of the EEOC. The proposed NPRM may reflect a more aggressive enforcement position by the EEOC.

We will provide an extensive analysis once the full text of the NPRM is available. Below are highlights of remarks by EEOC Assistant Legal Counsel Christopher Kuczynski to explain the proposed NPRM.

What Is a “Major Life Activity”?

The ADAAA and the proposed NPRM retain the three-part definition of “disability” that was originally established under the ADA: (1) a physical or mental impairment that substantially limits a major life activity, (2) a record of having such an impairment or (3) being regarded as having such an impairment.

The ADAAA added a nonexhaustive list of “major life activities” (caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working) to the statutory text. The ADAAA also identified a nonexhaustive list of “major bodily functions” that also qualify as major life activities (functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions).

It is important to note that the proposed NPRM (as described by the EEOC’s assistant legal counsel) broadens the text of the ADAAA by adding three major life activities (reaching, sitting and interacting with others) and three major bodily functions (functions of the hemic, lymphatic and musculoskeletal systems). The proposed NPRM also lists impairments that impact major life activities (e.g., kidney disease affects bladder function, cancer affects normal cell growth, epilepsy affects neurological functions), which may identify categories of impairments that will constitute disabilities.

How Is “Substantially Limited” Defined?

In enacting the ADAAA, Congress rejected the U.S. Supreme Court’s position in Toyota Motor Mfg. v. Williams ¹ that the term “substantially limits” means “severely restricts” an individual from doing activities that are of “central importance to daily life.”

In response to Congress’ mandate to promulgate regulations addressing the definition of “substantially limits,” the proposed NPRM is reported to include five rules of construction:

The focus of ADA cases should be on whether discrimination occurred, not on the definition of “disabled”; whether an impairment substantially limits a major life activity should be “construed broadly,” and the determination of whether someone is disabled should “not demand extensive analysis.”
In order to demonstrate that an individual is substantially limited in a major life activity, the individual does not need to demonstrate that he or she is limited in “activities of central importance to daily life.”
An individual may be able to demonstrate that he or she is disabled based upon an impairment that substantially limits only one major life activity.
The determination of an individual’s limitation “may be made using a common-sense analysis without resorting to scientific or medical evidence” when comparing the individual’s limitation to that of most people in the general population.
Impairments that last for fewer than six months may still be substantially limiting.

Against this background, the proposed NPRM is reported to provide that temporary, nonchronic impairments of short duration, with no residual effects (e.g., the common flu, a sprained ankle), do not substantially limit a major life activity and, therefore, are not disabilities.

In addition, the proposed NPRM sets forth two categories of conditions (with corresponding examples): (1) those impairments that will obviously be substantially limiting and which will consistently meet the definition of “disability” and (2) those impairments that may be substantially limiting, depending upon further analysis. Although the EEOC’s assistant legal counsel stated in his public comments that the identification of these specific impairments does not eliminate the “individualized assessment” to be undertaken in an ADA analysis, the inclusion of these categories suggests that the EEOC may believe that certain conditions should be deemed disabilities.

The proposed NPRM also eliminates the requirement that to be substantially limited in the major life activity of “working,” an individual must be prevented from working in a “class” or “broad range” of positions. In its place, the proposed NPRM maintains that an impairment substantially limits the major life activity of working if it “substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue as compared to most people having comparable training, skills, and abilities.”

Mitigating Measures

In contrast to prior case law, the ADAAA provides that a determination of whether an impairment substantially limits a major life activity shall be made without reference to mitigating measures (except for ordinary eyeglasses and contact lenses).

The proposed NPRM reiterates this position and, as stated by the EEOC’s assistant legal counsel, reinforces the principle that an impairment may be a disability if it would substantially limit a major life activity without a mitigating measure “even where an individual has never experienced limitations or has experienced only minor limitations resulting from the impairment.” In addition to listing the mitigating measures specifically referenced in the ADAAA, the NPRM adds surgical interventions as a mitigating measure.

Episodic Conditions or Conditions in Remission

The proposed NPRM is reported to adopt the language of the ADAAA by contending that impairments that are episodic or in remission are disabilities if they would be substantially limiting when active (e.g., epilepsy, asthma, cancer and psychiatric disabilities such as major depression).

Regarded as Disabled

Following the language set forth in the ADAAA, the proposed NPRM provides that when an employer takes an adverse action against an individual (e.g., failure to hire, failure to promote) because of an impairment, that individual will be able to demonstrate that he or she has been regarded as disabled, unless the impairment is transitory (lasting or expected to last for six months or less). As an example, the proposed NPRM provides that if a manufacturing employer does not hire an individual, believing that she has carpel tunnel syndrome, that employer will be deemed to have regarded the individual as disabled.

Opposition to the NPRM

The proposed NPRM is not without its challengers, some of whom are within the EEOC.

EEOC Commissioner Constance S. Barker, in her public comments on June 17, 2009, commented on the proposed NPRM, finding that “these proposed changes depart in a fundamental way from the basic concept of the ADA—that disability is determined on the basis of an individualized assessment and not categorically.” She further discussed the proposed NPRM’s removal of the concept, “condition, manner or duration,” which had previously been identified by the EEOC (and relied upon by courts) as relevant to the determination of whether an impairment substantially limits a major life activity as well as the removal of the language “class of jobs or broad range of jobs,” which had previously been utilized in determining whether an individual is substantially limited in the major life activity of working.

While discontent within the EEOC and future public comment may result in subsequent revisions to the proposed NPRM, the significance of the statutory changes resulting from the ADAAA indicates that employers should be aware that the final version of the EEOC’s regulations is likely to support a more expansive definition of “disability” and rules of construction than existed prior to the ADAAA.

What This Means for Employers

While at this point we do not know how expansive the EEOC regulations ultimately will be, the statutory framework of the ADAAA significantly expands the number of individuals who will be deemed disabled. Therefore, employers may want to focus on the aspects of the ADA analysis that have not been altered. These areas include considering whether the individual is otherwise qualified to perform his or her job, whether a requested accommodation is reasonable or poses an “undue hardship” and whether an individual poses a “direct threat.” Employers may also want to review and update job descriptions to ensure that they accurately reflect the key requirements of positions. In addition, it may be appropriate to train managers to focus only on the objective performance issues, and not on any suspected underlying medical condition, when addressing performance deficiencies.

Note

¹ Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002).

United States: Feds Wary of Boston Lawyer’s Work, Creating Problems for Legitimate Clients

2009-06-29

Attorney John Dvorak has represented hundreds of clients in immigration matters over the past eight years.

But recently the feds have begun rejecting some of his cases, contending that it has found fraudulent documents in a significant number of them, reports the Boston Globe.

This has apparently put some legitimate clients in a tough situation: “I don’t know if he did wrong or not, but it’s not my fault. ... “I paid for him to do the right thing,’’ says Carlos Cianflone, 40. He and his wife are worried that the government’s denial of their case will hurt their autistic son, who is an American citizen.

Dvorak, who seemed visibly upset last week, declined to speak with the newspaper.

The Globe says the government’s claims apparently concern cases opened during a brief, chaotic period in 2001, when the feds temporarily allowed some illegal immigrants to apply for legal residency through their relatives and employers.

Estonia: Estonia - Financial Stimulus Measures Introduced

2009-06-26

On 11 March 2009, the Estonian Parliament (Riigikogu) adopted amendments to acts aimed at strengthening the financial system. The amendments simplify the granting of guarantees to troubled credit institutions and the Riigikogu is given the right to process the grant of state guarantees or loans to such credit institutions as an urgent procedure. The new provisions also allow Stabilisation Reserve Fund moneys to be used to prevent or resolve financial crises. The amendments entered into force on 6 April 2009.

Latvia: Letônia - Law on Taxes and Duties Amended

2009-06-26

On 21 May 2009, the Saeima amended the Law on Taxes and Duties, introducing the rate to the State Revenue Service to claim additional taxes based solely on the data at their disposal and without a need to carry a tax audit, clarifying the tax payer’s rights to correct its tax declarations and their impact on tax liability and penalties, as well as changing the rules of liability applicable in case of tax avoidance in unregistered business cases.

According to the amendments, the State Revenue Service will be entitled to compare the data at its disposal with the data indicated in the tax payer’s statements and claim the tax difference, if such is established, within three years from the date the relevant tax was due. In case any difference is established, the tax payer will have 30 days to explain or correct it, making a voluntary payment of the deficient tax and the applicable late payment fees. If that is not done, the State Revenue Service will have a right to pass a binding decision ordering the payment of the deficient tax. This procedure does not require a formal tax audit of the tax payer.