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

On Tuesday, the Senate voted to end debate on a $150 billion bill that would extend premium COBRA subsidies and emergency unemployment insurance benefits through December 31, 2010, as well as continue certain programs aimed at providing pension-funding relief. Sen. Max Baucus (D-MT) introduced the American Workers, State and Business Relief Act of 2010 (pdf) as an amendment (S. Amt. 3336) in the nature of a substitute to the Tax Extender Act of 2009 (H.R. 4213).  The tax extender bill has been serving as the vehicle to provide extensions to these and other expiring tax credit programs. The premium COBRA subsidy and emergency unemployment benefits were recently given one-month extensions through the Temporary Extension Act of 2010, signed into law on March 2.

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The U.S. Supreme Court has agreed to decide whether the government violates a federal contract employee’s constitutional right to informational privacy when it (a) asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and (b) when it asks the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility, when the information obtained in both scenarios is to be used for employment purposes only and is protected under the Privacy Act, 5 U.S.C. 552a. In National Aeronautics and Space Administration v. Nelson (09-530) the U.S. Court of Appeals for the Ninth Circuit disagreed with a lower court, which had found no constitutional violations. The Ninth Circuit reversed (pdf) the district court’s decision, and ordered the entry of a preliminary injunction barring the use of the forms asking the above questions for the background checks on federal contract employees working at NASA’s Jet Propulsion Laboratory (JPL), a federal research and development facility owned by the agency. The California Institute of Technology (Caltech) operates JPL pursuant to a contract with NASA. All of the positions at JPL are filled by contract employees.

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On Thursday, the House of Representatives voted 217 to 201 in favor of the Hiring Incentives to Restore Employment (HIRE) Act, the $15 billion jobs bill introduced by Sen. Majority Leader Harry Reid (D-NV) as an amendment (S. Amt. 3310) (pdf) to H.R. 2847, the more expansive jobs bill the House previously passed in December. The Senate cleared this scaled-down jobs bill last Wednesday by a 70-28 margin. Because the House intends to change the effective date of a tax provision in order to offset its cost, the Senate will once again need to approve the amended bill before it can be signed by the President.

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Telling Congress to “finish its work,” President Obama on Wednesday urged both chambers to schedule a vote on final health care overhaul legislation in the coming weeks. While Obama did not outline a specific roadmap for reform, it is widely believed that the plan for going forward involves first having the House of Representatives vote on the Patient Protection and Affordable Care Act (H.R. 3590), the bill the Senate approved in December, and then passing via budget reconciliation a package of changes to that bill reflected in the estimated $950 billion proposal Obama unveiled on February 22.  While Obama did not specifically mention reconciliation, he seemed to sanction this approach, stating that a health care reform bill: “deserves the same kind of up-or-down vote that was cast on welfare reform, the Children's Health Insurance Program, COBRA health coverage for the unemployed and both Bush tax cuts – all of which had to pass Congress with nothing more than a simple majority.” The controversial budget reconciliation process requires a simple majority vote, but is subject to strict limitations about what matters can be included in a reconciliation bill.

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According to a report by the Associated Press, Labor Secretary Hilda Solis hinted during the AFL-CIO annual meeting that President Obama would institute controversial nominee Craig Becker as a member of the National Labor Relations Board (NLRB) by means of a recess appointment, possibly during the Easter recess. On February 9, the Senate failed to pass a cloture motion on his nomination, fueling speculation that Obama would appoint Becker – who currently serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the AFL-CIO – during the President’s Day recess. According to the AP story, Solis told AFL-CIO members that they would be “very pleased” with how the stalled nomination issue would be resolved. The Senate is set to adjourn for the Easter recess from March 29 through April 9.

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On Tuesday, President Obama signed the Temporary Extension Act of 2010 (H.R. 4691), a bill that will extend the 65 percent premium COBRA subsidy through March 31, 2010, and unemployment assistance benefits through April 5, 2010. The Senate passed this bill by a vote of 78-19 after Sen. Jim Bunning (R-KY) – who objected to how the measure would be funded – abandoned his efforts to block it. The House of Representatives approved this emergency spending measure by voice vote last Thursday.  Both benefits had expired on February 28.

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On Tuesday, the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) will publish in the Federal Register a final (pdf) and a proposed rule (pdf) providing for greater worker investment and retirement account protections. Both final and proposed rules were drafted in response to the Pension Protection Act of 2006 (PPA), which amended portions of the Employee Retirement Income Security Act (ERISA) dealing with investment advice and retirement plan transparency. The announcement of these rules was made at a White House forum hosted by Vice President Joe Biden on Friday. According to the DOL, these two new rules are “designed to enhance retirement security and transparency for the millions of workers covered by 401(k), pension and other retirement arrangements.”

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Senator Dick Durbin (D-IL) and Representative John Conyers (D-MI) have introduced legislation that would strengthen the ability of employees to recover wages and benefits and restrict the awarding of bonuses in the event of their employer’s bankruptcy. According to a press release, the Protecting Employees and Retirees in Business Bankruptcies Act (S. 3033, H.R. 4677) would, among other things, “ensure that back pay awarded through [the Worker Adjustment and Retraining Notification (WARN) Act] damages would be given priority in the bankruptcy claims process.” Specifically, as stated in the release, the bill would do the following:

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On February 25, 2010, the White House hosted the much-anticipated bipartisan health care summit. As expected, no final legislation or agreement about how to proceed with health care reform emerged from the 7 ½ hour meeting. Democrats took the position that they would not start from scratch, and Republicans claimed they would not support the proposals that have already been put forth. The disagreements, however, may have given Democrats the public justification they need to proceed with reconciliation as a means to push forward with reform. President Obama stated:

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