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

On Wednesday, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted to send the nominations of Mark Gaston Pearce (D), Sharon Block (D), Richard Griffin (D), Harry I. Johnson, III (R) and Philip A. Miscimarra (R) to the full Senate for consideration. While the votes in favor of Johnson and Miscimarra were unanimous, the Committee voted 18-4 in favor of Pearce, and 13-9 in favor of Block and Griffin. The votes approving Block and Griffin were the most divisive, as they are the two members seated via recess appointment in January 2012. Federal courts are divided as to the constitutionality of these appointments, a matter that is likely headed to the Supreme Court.

Last week the Committee held a more extensive hearing to discuss the nominees. Many of the same arguments both for and against the nominees made last week were reiterated during Wednesday’s executive session. On the whole, Republican members of the Committee expressed more concern about seating Block and Griffin and suggested that it would be better if they resigned and allowed President Obama to name two new Board appointees in their stead.

It is believed that all five nominees will be presented to the Senate as a package. Although Democrats hold a narrow majority in the Senate, it is uncertain whether they would be able to muster the 60 votes needed to thwart a potential filibuster of the nominations. At the end of August, Chairman Pearce’s term expires.

Photo credit: MBPhoto, Inc.

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On Monday the U.S. Supreme Court agreed to consider the scope of the Sarbanes-Oxley Act of 2002 (SOX) whistleblower protections. Specifically, in Lawson v. FMR LLC, the Court will decide whether an employee of a privately held contractor or subcontractor of a public company is protected from retaliation under SOX.

The two plaintiffs in this case worked for privately held companies that operated a family of mutual funds. Mutual funds generally do not have their own employees, but rather contract with “investment advisors” that manage the funds, including “making day to day investment decisions, performing a range of management and administrative tasks, and preparing reports for shareholders and the SEC. Employees in the mutual fund industry ordinarily work for mutual fund adviser or sub-advisers, not for a mutual fund itself.”

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This week members of the House and Senate introduced legislation designed to improve protections for pregnant and nursing employees. On Tuesday lawmakers reintroduced the Pregnant Workers Fairness Act (H.R. 1975, S. 942), a bill that would require employers to make reasonable accommodations for pregnant employees and job applicants as well as those with limitations related to childbirth. Modeled after provisions in the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act would institute certain anti-discrimination and retaliation protections for workers who request a reasonable accommodation related to their pregnancy, childbirth, or associated medical conditions, and prevent employers from requiring that a pregnant employee take leave if she could perform her job with a reasonable accommodation. The bill would also make it unlawful for an employer to require an applicant or employee affected by pregnancy or childbirth to accept a particular accommodation.

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Pursuant to the agency’s Strategic Plan, the Equal Employment Opportunity Commission (EEOC) has revised and updated four disability guidance documents. Among other goals outlined in the Strategic Plan is to ensure the EEOC “provides up-to-date guidance on the requirements of antidiscrimination laws.” To that end, the agency has made available revised question and answer documents on how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities.

According to the EEOC:

the revised documents reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.

Photo credit: timmy

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The three National Labor Relations Board members up for reconsideration and two new Board nominees faced pointed questions from the Senate Committee on Health, Education, Labor and Pensions (HELP) on Thursday. Last month, President Obama announced his intent to re-name Mark Gaston Pearce (D) as Chairman of the National Labor Relations Board (NLRB), as well as seat the two Republican nominees, Harry I. Johnson, III and Philip A. Miscimarra, to the agency. In February, the President re-nominated Democrats Sharon Block and Richard Griffin to the Board after the U.S. Court of Appeals for the D.C. Circuit ruled that their January 4, 2012 recess appointments were unconstitutional. The hearing was held the same day the Third Circuit released its decision in NLRB v. New Vista Nursing & Rehabilitation, which reached a similar conclusion. Specifically, the Third Circuit held that the recess appointment of former Board member Craig Becker was invalid because it was not made during an intersession recess, which would invalidate the Block and Griffin appointments as well.

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On Thursday morning, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 12-10 along party lines to advance the nomination of Thomas Perez to be the next Secretary of Labor. Now that Perez’s nomination has been reported favorably out of committee, it will next be considered by the full Senate.

Committee Chairman Tom Harkin (D-IA) emphasized that since the last committee hearing held to consider Perez’s nomination, there has been an “unprecedented level of disclosure” regarding Perez’s involvement in an alleged quid pro quo agreement with the City of St. Paul, Minnesota while serving in his current role as Assistant Attorney General of the Department of Justice’s Civil Rights Division. In Magner v. Gallagher, the city had challenged the use of statistics as evidence of race discrimination under the Fair Housing Act (FHA). The DOJ was reportedly concerned that the U.S. Supreme Court could strike down this practice and find that disparate impact claims are not cognizable under the FHA, so it allegedly encouraged the city to withdraw its lawsuit. In exchange, according to the accusations, the DOJ would decline to intervene in an unrelated False Claims Act (FCA) lawsuit. The FCA case at issue, United States ex rel. Newell v. City of Saint Paul, was brought by a private whistleblower charging that St. Paul violated the FCA by falsely certifying that it was using federal funds to create jobs for low income workers of all races, when the programs were allegedly focusing only on minority employment. Harkin argued that his investigation into the matter has shown that Perez’s actions were entirely “ethical and appropriate,” and expressed dismay over the delay regarding Perez’s consideration.

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Last week the Equal Employment Opportunity Commission (EEOC) settled its first lawsuit involving a discrimination claim based on an applicant’s genetic history. The lawsuit alleged that Fabricut, a fabric distributor, violated the Genetic Information Nondiscrimination Act (GINA) when it requested a family medical history in its post-offer medical examination to a temporary employee and then violated the Americans with Disabilities Act (ADA) by denying a regular position to the temporary employee because it regarded her as having carpal tunnel syndrome.

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By Ilyse Schuman and Sherron McClain

On May 8, 2013, The Equal Employment Opportunity Commission (EEOC) held a public meeting that addressed the interaction between employer-sponsored wellness programs and federal equal employment opportunity statutes enforced by the EEOC. Commissioners Constance Barker, Victoria Lipnic, Chai Feldblum, and Commission Chair Jacqueline Berrien were present and joined by seven panelists representing business, advocacy groups and providers. Opening statements by Commissioners Barker, Lipnic, and Feldblum all noted the increased attention that that the nation’s collective health and employer-sponsored wellness programs have received in recent years. Commissioner Barker further noted that the Commission’s focus is on ensuring that groups protected by federal employment laws receive equal access to wellness programs and are permitted to enjoy the rewards offered for choosing those programs.

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The Equal Employment Opportunity Commission (EEOC) is seeking input from “individuals, employers, advocacy groups, agency stakeholders and other interested parties” on its Quality Control Plan (QCP) draft principles. The QCP’s purpose is to revise the standards used to assess the quality of the agency’s investigations and conciliations of discrimination complaints. In February 2012 the EEOC approved a more comprehensive Strategic Plan, which outlines the agency’s goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. Pursuant to this Strategic Plan, the EEOC is to develop and approve a QCP that will measure the agency’s performance in handling discrimination claims.

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