Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a draft copy of its Strategic Plan for fiscal years 2012-2012, and is soliciting public comment before the five-year plan is finalized. The Congressionally-required strategic plan outlines the agency’s goals for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. The document discusses 13 performance benchmarks that it will use to measure how well the agency achieves its three main performance goals of (1) combating employment discrimination through strategic law enforcement; (2) preventing employment discrimination through education and outreach; and (3) delivering excellent service through effective systems, updated technology, and a skilled and diverse workforce. According to the EEOC, the revised plan “requires significant changes in the agency’s approach to fulfilling its mission. As a result, during the first 1-2 years of the plan, the agency will establish new baselines so that it can finalize the milestones and targets for its measures.”

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Last Friday leaders of the House and Senate reportedly came to an agreement on the terms of the Federal Aviation Administration (FAA) reauthorization bill concerning how the National Mediation Board (NMB) will conduct representation elections and issue new rules. The NMB is the independent agency that oversees union representation, collective bargaining, and dispute resolution matters in the rail and airline industries.

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As expected, members of the House of Representatives opposed to the President’s recent recess appointments to the National Labor Relations Board have voiced their disapproval legislatively. On January 10, 2012, Rep. Diane Black (R-TN) introduced a resolution formally condemning Obama’s controversial decision to make recess appointments while the Senate was holding periodic pro forma sessions. Although the Department of Justice issued a memorandum opinion (pdf)  sanctioning the President’s authority to make these appointments, Rep. Black claimed that “[t]hese appointments are an affront to the Constitution.” According to Black, “the appointments in question were made while the Senate was in pro forma session and the House had not consented to a Senate adjournment,” as is required under article 1, section 5, clause 4 of the U.S. Constitution.

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The President’s move to seat three new members to the National Labor Relations Board via recess appointment has its first official court challenge. On January 13, 2012, the National Right to Work Foundation (NRTW) along with other business advocacy groups filed a motion (pdf) in the U.S. District Court for the District of Columbia to contest the constitutionality of the President’s actions. The crux of the argument is that since the Senate was not technically in recess at the time of the appointments, the President lacked the authority to seat new Board members without the Senate’s advice and consent. When Obama made these appointments, the Senate was holding regular pro forma sessions in which the chamber convenes but conducts no substantive business. Continue reading this entry at Littler's Labor Relations Counsel. 

Photo credit:  evirgen

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A recent U.S. Supreme Court decision has reinforced the protections afforded to religious organizations against employment discrimination lawsuits. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, (pdf) the Court unanimously held that the so-called “ministerial exception” included in the Americans with Disabilities Act (ADA) and other employment law statutes prevents a former religious school teacher who taught a full secular curriculum as well as a daily course on religion and regularly led students in prayer and worship – from bringing ADA claims against her employer, as she qualified as a ministerial employee even if the majority of her duties involved secular instruction.

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The Securities and Exchange Commission (SEC) has published a chart outlining when it intends to issue new rules implementing sections of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). (pdf)  Notably, within the next six months, the SEC plans to issue a final rule implementing Section 952 of the Dodd-Frank Act, which requires the SEC to adopt new disclosure rules for companies to report the use of compensation consultants and potential conflicts of interest. In addition, this section of the Act directs national securities exchanges/associations (e.g., NYSE, NASDAQ) to establish listing standards requiring publicly traded companies to have their compensation committee participants be members of the board of directors and meet a heightened standard of independence in order for their shares to continue trading on those exchanges. The SEC issued a proposed rule governing § 952 in March 2011.  According to the SEC outline, the agency also plans to adopt the listing standards within a six-month timeframe.

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On January 4, 2012, President Obama announced his intention to make three recess appointments to the National Labor Relations Board. According to the White House press release, the President will seat Sharon Block (D), Richard Griffin (D), and Terence Flynn (R) to the Board via recess appointment. Anticipating that in 2012 the five-member Board would be left with just two sitting members – Chairman Mark Gaston Pearce (D) and Brian Hayes (R) – Obama nominated Block and Griffin to serve on the Board last month. The third recess appointee, Terence Flynn, was named as an NLRB candidate last year, but the Senate did not act on any of these nominations in 2011.  Continue reading this entry at Littler's Labor Relations Counsel.

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The Department of Labor’s Wage and Hour Division (WHD) has issued three new fact sheets on unlawful retaliation under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Fact Sheet number 77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA), briefly discusses the prohibitions, coverage and enforcement issues related to section 15(a)(3) of the FLSA, which makes it a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” The fact sheet explains that covered complaints may be made orally or in writing, and that most courts have concluded that the FLSA’s retaliation protections extend to internal complaints as well.

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Anticipating the loss of a quorum next week, the National Labor Relations Board has issued a final rule (pdf) revising its representation case certification process. Specifically, the Board is amending its rule requiring the automatic impoundment of representation election ballots when a party files a request for review.  Continue reading this entry at Littler's Labor Relations Counsel.

Photo credit:  istockphoto

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