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

By Stefan Marculewicz

In light of yesterday’s federal court decision finding that the NLRB lacked a quorum necessary to issue the controversial new representation election rule, ] the Board has decided to suspend the rule’s implementation. The Board’s Acting General Counsel has similarly withdrawn guidance released last month governing the representation case procedure changes, which had taken effect on April 30, 2012.

According to the NLRB’s announcement, an estimated 150 election petitions have already been filed under the new procedures. The announcement states that “Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.”

Photo credit: istockphoto

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During a hearing held on May 10, 2012 by the Senate Committee on Health, Education, Labor and Pensions (HELP), senators focused on workplace flexibility. At the outset of the hearing -- Beyond Mother’s Day: Helping the Middle Class Balance Work and Family – Committee Chairman Tom Harkin (D-IA) claimed that current workplace laws have not kept pace with the realities of working life. Harkin stated, for example, that the Family and Medical Leave Act (FMLA) covers only about half of the workforce and that employees needs a “basic minimum floor” of paid sick leave.

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The National Mediation Board (NMB) has issued a proposed rule that would implement the changes to existing representation dispute and election procedures in the railway and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Signed into law on February 14, 2012, the FAA Act included significant restrictions over airline and railway union organizing. Specifically, the Act amended the Railway Labor Act (RLA) by: (a) specifying that the NMB must provide an opportunity for public hearing regarding any significant rules; (b) requiring that in any runoff election for which there are three or more options (including the option of “no union”) on the ballot and none receives a majority of the valid votes cast, a second election would be held between the two options receiving the most votes; (c) raising the showing of interest threshold for elections to not less than 50% (up from 35%) of the employees in the craft or class; and (d) imposing certain review and auditing requirements on the NMB’s programs and expenditures. To this end, the proposed rule published in the May 15, 2012 edition of the Federal Register would make changes to existing NMB rules regarding run-off elections, showing of interest for representation elections, and the NMB’s rulemaking proceedings to conform to the FAA Act provisions. Continue reading this entry at Littler's Labor Relations Counsel.

Photo credit: Pinewood Portrait Studios

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In a long-awaited ruling, the U.S. District Court for the District of Columbia has found the National Labor Relations Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. Specifically, the court in Chamber of Commerce v. NLRB (pdf) determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel. Continue reading this entry at Littler's Labor Relations Counsel. 

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On May 10, 2012, President Obama issued a new Executive Order (E.O.) – Identifying and Reducing Regulatory Burdens – that aims to reduce the costs and obligations of federal regulation. E.O. 13610 builds upon E.O. 13563 – Improving Regulation and Regulatory Review -- issued in January 2011. Among other things, the earlier E.O. requires agencies to establish retrospective review plans to determine whether previously-issued rules should be “modified, streamlined, expanded, or repealed.” The goals of the latest E.O. are “to promote public participation in retrospective review, to modernize our regulatory system, and to institutionalize regular assessment of significant regulations.”

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The Department of Labor has submitted to the Office of Management and Budget (OMB) a proposed information collection request (ICR) that would determine the degree of employee knowledge concerning their rights governed by the DOL’s Wage and Hour Division (WHD) and Occupational Safety and Health Administration (OSHA). As stated in the notice published in the May 8, 2012 edition of the Federal Register, the purpose of the ICR – the 2012 Wage and Hour Division and Occupational Safety and Health Administration Surveys Workers' Voice in the Workplace – would be to “gauge the current level of workers' voice in the workplace and factors affecting workers' voice as it relates to WHD and OSHA administered laws.” The Federal Register notice explains further that:

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The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a proposed rule that would amend the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O.) 13495, Nondisplacement of Qualified Workers Under Service Contracts, signed by President Obama on January 30, 2009. Generally, this E.O. requires that any federal service contracts covered by the Service Contract Act (SCA) above the simplified acquisition threshold (currently $150,000) and solicitations for such contracts include a clause requiring contractors and their subcontractors – with certain listed exclusions – to offer existing employees the right of first refusal to take positions for which they are qualified under the new contract. In August 2011, the Department of Labor issued final regulations outlining the applicable sanctions and remedies in the event a contractor is found in violation of this E.O. The new proposed rule published in the May 3, 2012 edition of the Federal Register would add subpart 22.12 and a new clause to the FAR to incorporate the language and intent of EO 13495 and the DOL’s implementing regulations. The proposal does not, however, address the investigative methods, available reviews, or enforcement mechanisms established by the DOL regulations “except as necessary to ensure that contracting officers and contractors, including subcontractors, are aware of their requirements and responsibilities.”

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By Alissa Horvitz

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently released a wave of “heads up” letters that are designed to place government contractors on notice that certain facilities will be selected for an actual OFCCP compliance review during the next several months.

Unlike the old “CSAL” or Corporate Scheduling Announcement Letter mailings, which traditionally were sent to the company’s CEO with a listing of all facilities that could be audited – thereby providing government contractors with an efficient way of tallying the number of anticipated audits and marshaling internal resources accordingly – some of these new letters (pdf) have gone only to individual facilities, and they contain no attached listing of other company sites to be audited.

It is unclear whether “traditional” CSAL letters have gone out, too. If those have not gone out, and corporate CEOs will not be receiving the traditional listing of all sites to be audited, it will place an increased burden on consolidated compliance functions to track down internally the total tally of anticipated audits and allocate resources.

Facilities that received these “heads up” letters do not have to do anything in response to them, yet. The OFCCP’s district and regional offices will send an actual 30-day scheduling letter at some point in the near future, which will trigger the obligation to submit the requested affirmative action plans and support data within 30 days of the company’s receipt of the letter by certified mail. Those facilities that received “heads up” letters should alert their mail rooms to look for the DOL’s official certified letter any time in the next few months.

Photo credit: Jostaphot

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On Thursday, May 10, 2012, the House of Representatives approved 247-163 a fiscal year 2013 funding bill (H.R. 5326) for a variety of federal agencies, including the Equal Employment Opportunity Commission (EEOC), that includes a series of amendments that would curtail enforcement of certain labor- and employment-related regulations and programs. Generally, the bill would allocate nearly $367 million to the EEOC for FY 2013, but would prevent any of this funding from being used to implement and enforce the EEOC’s final rule that amends its Age Discrimination in Employment Act (ADEA) regulations to clarify the reasonable factors other than age (RFOA) defense in disparate impact cases.

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