A December 12, 2008 memorandum issued by USCIS revises an employer’s responsibility in verifying an employee’s eligibility for employment as well as the Form I-9 which implements the process. Employers face stiff penalties as well as other significant sanctions for failing to comply with the requirement of the Form I-9 and employing aliens not authorized to work in the United States.

The interim rule narrows the list of documents that are acceptable for employment eligibility verification as a new Form I-9. Under this rule, employers are required to verify employee eligibility for all new employees beginning 45 days after the publication of the Federal Register which was submitted on December 11, 2008. This rule imposes the additional requirement that an employer must re-verify any existing employee with expiring employment authorizations. The current Form I-9 (dated 6/5/07) will no longer be valid as of 45 days after the publication of the Federal Register.

Finally, this program applies to all employers, agricultural recruiters as well as referrers and recruiters for a fee. The new specifications are quite extensive and require a detailed study by affected employers, recruiters and staffing agencies. [ Review The Revised I-9 Employment Verification Memorandum]

Recent amendments to the Americans with Disabilities Act that take effect January 1, 2009 were enacted to overturn erroneous Supreme Court decisions that had eroded the protections for people with disabilities under the ADA and reject the strict interpretation of a definition of a person with a disability. These amendments expand the coverage of the ADA such that more individuals with a disability will be afforded the Act’s protections.

History of ADA Amendments Act of 2008:

On September 25, 2008, the President signed the "ADA Amendments Act of 2008" (Public Law 110-325) into law to amend the Americans with Disabilities Act of 1990. The Act was introduced to combat four recent Supreme Court Opinions that had narrowed the coverage of the ADA to such an extent that individuals with epilepsy, muscular dystrophy, cancer, diabetes, and cerebral palsy were being denied the protections of the ADA. This narrow interpretation of the ADA lead to 97% of plaintiffs with ADA employment discrimination claims losing at trial in 2004. Congress realized that individuals for whom the ADA was originally designed to protect were being denied protection from employment discrimination and passed the ADA Amendement Act of 2008 to correct the problem.

Expanded Coverage of ADA under ADA Amendments Act of 2008:

The Act makes it clear that when determining whether or not an individual has a disability covered by the ADA, courts should interpret the definition of a disability to provide broad coverage consistent with the purposes of the Act to protect anyone who faces discrimination on the basis of disability.

The Amendments prohibit courts from considering mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability. For example, before the Amendments, a court could reject an individual’s claim if he was able to take medication or used a device that reduced the impairment of his disability.

The Amendments state that impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

 The Amendments also state that an impairment that limits one major life activity need not limit other major life activities in order to be a disability.

The Amendments clarify that the ADA covers people who experience discrimination based on a perception of impairment regardless of whether the individual has a disability.

The Amendments provides that reasonable accommodations are only required for individuals who can demonstrate they have an impairment that substantially limits a major life activity, or a record of such impairment. Accommodations need not be provided to an individual who is only "regarded as" having an impairment.

Effects of the Amendments:

The ADA Amendments Act of 2008 will provide more individuals who suffer from a disability the protections of the ADA. Individuals who were previously denied protection against employment discrimination who either have certain types of disabilities, who are able to take advantage of assistive technology to better quality of lives, and those whose conditions are in remission, can take full advantage of the protections of the ADA if their employer subjects them to discrimination on the basis of their disability.

In the past, employees with charges of discrimination before the EEOC and Illinois Department of Human Rights only had two forums where they could bring a lawsuit – Federal Court or the Illinois Human Rights Commission. Now, individuals who have filed a charge of discrimination at the Illinois Department of Human Rights (IDHR) also have the option of filing a lawsuit in Illinois State Court. This will affect those filing lawsuits of sexual harassment, racial harassment, age discrimination as well as other forms of discrimination and harassment.

Who Can File State Court Lawsuit of Harassment or Discrimination

To be eligible to file an employment discrimination or harassment case in Illinois State Courts, a charge of discrimination or harassment must have been filed with the Illinois Department of Human Rights (IDHR) after January 1, 2008. One can then elect to file a complaint in State Court under the following circumstances:

• The Illinois Department of Human Rights issues a finding of substantial evidence and one elects not to have the Department file a complaint with the Human Rights Commission.
• The Illinois Department of Human Rights issues a finding of lack of substantial evidence.
• The Illinois Department of Human Rights fails to issue a finding within 365 days of the charge being filed (or longer if an extension was signed by both parties).

Differences Between State Courts And Human Rights Commission

Unlike the Illinois Human Rights Commission, State Court allows a case to be heard and decided by a jury of your peers. At the Human Rights Commission it is up to an Administrative Law Judge to determine the outcome of a particular case, including, the amount of damages that should be awarded. In State Court, however, this role may be undertaken by a jury. This creates the possibility of larger awards in State Court than the Human Rights Commission. However, the discovery process is more extensive in State Court and the cost of prosecuting a claim in State Court may be higher than proceeding at the Human Rights Commission.