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

While it is widely expected that organized labor will push for the reintroduction of the Employee Free Choice Act (EFCA) soon after President-elect Obama takes office, the administration has indicated a reluctance to engage in controversial battles early into the Obama presidency; particularly those which employers contend will hurt business at this fragile time in the nation’s economy. In order to appease organized labor, however, the new administration may back other labor-related measures that will not require a lengthy and contentious legislative battle. Specifically, Obama may be more receptive to reversing a number of President Bush’s executive orders that are perceived negatively by organized labor. These executive orders were signed in the early days of the Bush administration, and sought to reverse labor/management policies set by the Clinton administration. The contentious executive orders include the following:

• Email This
• Print
• Trackbacks (1)
• Share Link

As anticipated, President Bush signed two bills that had swiftly cleared Congress in the waning days of his administration. The Worker, Retiree and Employer Recovery Act of 2008 (Pub. L. No. 110-458) was designed to ease the effects of the financial crisis for seniors and businesses by, among other things, modifying pension funding and distribution requirements. For example, the Act waives the 2009 minimum distribution requirement for participants and beneficiaries of defined contribution employer-sponsored qualified retirement plans, and allows employers maintaining single-employer plans to spread the value of pension plan assets over a two-year period. Additionally, the legislation makes technical corrections to the Pension Protection Act of 2006.

Bush also signed a bill that makes technical corrections to the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (Pub. L. No. 110-460). The legislation changes the effective date of provisions affecting collectively bargained health plans from January 1, 2009 to January 1, 2010. The initial start date was deemed a drafting error. The mental health parity law amends current requirements under ERISA, the Public Health Service Act and the Internal Revenue Code for parity in mental health benefits offered under a private group health benefit plan. For more information on the MHPA, see Littler’s ASAP: Equal Mental Health and Substance Use Benefits Realized by Russell D. Chapman and Andrea Jackson.

• Email This
• Print
• Trackbacks (1)
• Share Link

The Department of Health and Human Services (HHS) issued a final rule that aims to protect health care workers from discrimination if they harbor religious or moral objections to participating in reproductive health care services such as abortion and the provision of birth control. This rule expands protections articulated in sections of three federal laws (the so-called Church, Coats and Weldon Amendments) that safeguard an individual’s right to refuse to provide the aforementioned health services if those services violate that person’s religious beliefs or moral convictions. The proposed rule expands the scope of these statutory protections to include institutional health care providers and individual employees who work for entities that receive certain HHS funds. Additionally, the rule mandates that recipients of certain HHS funds certify compliance at the risk of losing federal funding.

• Email This
• Print
• Trackbacks (1)
• Share Link

Citing privacy concerns, the Department of Labor (DOL) issued a new rule abolishing the requirement that federal construction contractors and subcontractors include workers’ home addresses and full social security numbers on weekly certified payroll statements that are submitted to the contracting federal agency under the Davis-Bacon and Copeland Anti-Kickback Acts. Under the new rule published in the Federal Register on December 19, only a partial identifier is required, such as the last four digits of the individual’s social security number.

Many labor organizations opposed the new rule, fearing that omitting a worker’s complete identification information from weekly payroll statements could result in the misclassification of workers, underpayment of wages, fringe benefit abuses, and illegal kickbacks on federal construction projects.
 

• Email This
• Print
• Trackbacks (1)
• Share Link

The Joint Committee on Taxation has released the Technical Explanation of the Worker, Retiree, and Employer Recovery Act of 2008 (H.R. 7237).  This piece of legislation makes technical corrections to the Pension Protection Act of 2006 (PPA), and provides for additional amendments to the PPA, the Internal Revenue Code, the Employee Retirement Income Security Act of 1974 and the Age Discrimination in Employment Act.  Congress approved this pension relief measure on December 11.  The President is expected to sign this bill before the end of his term.

• Email This
• Print
• Trackbacks (1)
• Share Link

The Department of Labor has posted on its website its updated poster incorporating the recent military family leave amendments and other changes to the Family and Medical Leave Act (FMLA), as reflected in the recently-published final FMLA rule. Employers covered by the FMLA are required to post notice of an employee’s FMLA rights in a conspicuous area in the workplace.

The DOL has also posted a number of new and revised optional FMLA forms. These forms include the FMLA Certification of Health Care Provider for Employee's Serious Health Condition (WH-380E); FMLA Certification of Health Care Provider for Family Member's Serious Health Condition (WH-380F); FMLA Notice of Eligibility and Rights and Responsibilities (WH-381); FMLA Designation Notice (WH-382); Certification of Qualifying Exigency For Military Family Leave (WH-384); and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

These forms expire on December 31, 2011.
 

• Email This
• Print
• Trackbacks (1)
• Share Link

Despite the dramatic gains in the Senate by the Democrats and the support of President-elect Obama, there are a number of signs indicating that the Employee Free Choice Act in its current form, may still not have enough votes to become law next year. On Tuesday, Senator Blanche Lincoln (D-Ark.), a supporter until now, announced that she deemed the card-check proposal “unnecessary.” While refraining from stating that she would vote against EFCA altogether, it appears that Lincoln – who is up for reelection in 2010 – cannot be counted on to support this legislation without reservation and it is very possible that she would not again vote to end a filibuster of the bill in the Senate. Meanwhile, on the other side of the aisle, Republican Senator Arlen Specter –who was the only Republican Senator who voted in favor of the measure in 2007 – has yet to declare publicly whether he will once again cast his vote in favor of EFCA’s passage, and there are indications that he is uncomfortable with the bill in its current form.

• Email This
• Print
• Trackbacks
• Share Link

In a surprise move, President-elect Obama has chosen dark-horse candidate Rep. Hilda Solis (D-CA) as Labor Secretary. Solis’ selection will no doubt appease organized labor, which chose her to defeat pro-free trade incumbent Democratic Congressman Matthew Martinez (D-CA) in a primary challenge in 2000, and which contributed heavily to her re-elections since.

• Email This
• Print
• Trackbacks
• Share Link

The United States Citizenship and Immigration Services (USCIS) has issued a final rule that revises Form I-9 and the list of documents that are acceptable to prove identity and employment authorization. Employers will be given a 45-day grace period to begin using the new form. Failing to do so may result in fines.

For more information on this interim final rule, see Littler’s ASAP: USCIS Issues Interim Final Rule on I-9 Employment Verification by Jorge R. Lopez and Chadwick M. Graham.
 

• Email This
• Print
• Trackbacks (1)
• Share Link

Emily Spieler, an academic and employee advocate, has been selected as the Obama Transition Team leader on issues related to the Occupational Safety and Health Administration. As such, Spieler will be charged with, among other things, vetting candidates for the position of Assistant Secretary of Labor for OSHA.

Spieler is currently the Dean and Edwin W. Hadley Professor of Law at Northeastern University School of Law in Boston. Prior to teaching, she worked as a public interest attorney, focusing her practice on the legal problems of workers, particularly those injured on the job. Her positions include serving as a special assistant attorney general for the Massachusetts Department of Public Health's Lead Poisoning Prevention Division, Commissioner of West Virginia’s Workers’ Compensation Fund, and West Virginia’s first deputy attorney general for civil rights. Spieler has also served as a member of the state’s Human Rights Commission. Additionally, she has held a position on the National Institute for Occupational Safety and Health.

Spieler is a very accomplished individual and seems to be more than qualified to implement Obama’s vision for OSHA. She has written extensively on workers’ compensation and occupational safety issues, and, according to all indications, is a proponent of legal intervention in the private sector to encourage and promote workplace safety. For instance, she would likely support providing employees with additional avenues of recovery for workplace injuries; encouraging safety through the use of inspections and greater oversight in the workplace; increasing the use of penalties to gain compliance; and better review of the process for rulemaking and enforcement.

Obama has a clear vision that OSHA will be a very active, well supported agency. The selection of Spieler is another indication that the Obama Administration will stand behind its goal of focusing on increasing workplace safety oversight and enforcement. Spieler has already received requests that the next Assistant Secretary of Labor have an extensive background and training in occupational health and safety and a lifelong commitment to occupational health and safety. In addition to these traits, Spieler will certainly seek out candidates that support the reintroduction and implementation of ergonomics regulations; implementation of more extensive combustible dust standards; and other workplace safety programs that will increase employer obligations to provide safer workplaces. Spieler may be in charge of this vetting process, but she would seem to make the best candidate for the possession herself, and if not her, it will certainly be someone who shares her vision on safety in the workplace.

Jeremy Stewart, an associate in Littler’s Chicago office, and Littler’s Workplace Safety Team contributed to this article.
 

• Email This
• Print
• Trackbacks
• Share Link

For the first time in 20 years, the H-2A guest worker program for agricultural employees is slated for reform. On Dec. 11, the Department of Labor (DOL) and Department of Homeland Security (DHS) issued final rules regarding the hiring of foreign agricultural workers, ostensibly to streamline the hiring process of these temporary and seasonal employees.

Under the current guest worker program, employers are allowed to hire foreign workers only if they cannot find U.S. workers willing and able to do the job, and only if the wages and working conditions they provide do not negatively impact U.S. workers. Previously, the DOL had to certify the employer’s recruitment efforts and wage rates. Under the new rules, an employer need only attest that it has fully complied with the H-2A requirements. This substantially shortens the processing times. An employer who falsifies this attestation is subject to fines (which are increased under the new rules), revocation of labor certification, and debarment from participation in the guest worker program.

Additionally, the DOL rule changes the program’s wage formula. The wage rate is currently calculated using the Department of Agriculture’s quarterly farm labor survey data that is averaged across several regions and agricultural industries. The new rule uses Bureau of Labor Statistics Occupational Employment Survey (OES) data, which is arguably more detailed and takes several regions, occupations and skill levels into account.

The DHS rule, among other things, eases the employer’s limitation on petitioning for multiple, unnamed agricultural workers, allows workers to stay in this country for a longer period of time following visa expiration, and limits worker participants to citizens of a select group of countries.

In general, these rules will likely benefit agricultural employers, as they relax some of the administrative burdens inherent in the H-2A program. Predictably, organized labor has vociferously opposed these changes on the grounds that they make it easier for an employer to bypass recruitment efforts to find available American labor, and allow employers to pay lower wages for all agricultural workers.

The DOL final rule is set to be published December 18 in the Federal Register.  It is anticipated that the final DHS rule will be published around the same time period.
 

• Email This
• Print
• Trackbacks
• Share Link

When the ADA Amendments Act (ADAAA) goes into effect January 1, 2009, regulations interpreting this new law will not be forthcoming. On December 11, the EEOC failed to approve a notice of proposed rulemaking on this new act, which overturns a number of U.S. Supreme Court cases that narrowly interpreted the scope of the ADA’s coverage. 

The four commissioners deadlocked along party lines on whether to approve Republican Chair Naomi Earp’s proposed regulations, which then would have been subject to a 60-day comment period after OMB review and publication in the Federal Register. Reportedly, the sticking point for the Democratic commissioners was that a public meeting on the content of the proposed regulations was premature, as they were not yet finished. Drafts of the regulations have been in the making since August.

Since a transcript of the EEOC meeting is not yet available, the details of the draft regulations are unknown. Thus, it is still unclear as to whether the regulations are objectionable on substantive grounds or just incomplete. What is certain is that regulations or other interpretive guidance on the ADAAA will not be enacted until the next administration, when two new EEOC commissioners will be in place. Since it is anticipated that those vacancies will be filled by employee advocates, the next set of regulations will be more likely to appease the disability rights groups who objected to swift approval of the current version of the act.
 

• Email This
• Print
• Trackbacks
• Share Link

On Dec. 11, the Senate approved a bipartisan bill that is designed to ease the financial crisis for certain employees and businesses by, among other things, modifying pension distribution requirements. The Worker, Retiree, and Employer Recovery Act of 2008 (H.R. 7327), introduced in and passed by the House of Representatives on December 10th, also makes technical corrections to the Pension Protection Act of 2006 (PPA).  The President is expected to sign the bill.

In essence, the bill would temporarily ease funding and distribution rules governing single and multi-employer pension plans and modify asset depreciation requirements, ostensibly to free up cash for payroll and other business expenses in light of the faltering economy. Some of the key bill provisions include:

• For single-employer pension plans:
  • Permits temporary adjustment to contribution, distribution, and projected earnings provisions of the PPA;
  • Gives these plans three years to phase in PPA pension funding target percentages.
• For multi-employer pension plans:
  • Permits a freeze of plan funding status to provide time for economic recovery before declaration of critical or endangered status;
  • Allows the election of a three-year extension of current amortization rules to help offset this year’s asset losses.
• For taxpayers:
  • Eliminates minimum distributions for 2009 to provide time for IRAs and other benefit accounts to recover asset losses.

Although it is generally unusual for Congress to introduce new legislation so close to the end of a session, the current financial catastrophe has changed the rules of the game. Business interests have been actively lobbying Congress in recent weeks to pass some type of pension relief measure. Although these may be welcome changes, they will have little impact on economic recovery, and merely delay recognition of the impact of the severe investment losses suffered by retirement plans, particularly for the millions of participants in 401(k) plans and IRAs who have seen substantial erosion in their expected retirement assets. Regardless, defined benefit plan sponsors are still required to fund their defined benefit plans and are liable for any shortfall on plan termination and the Pension Benefit Guaranty Corporation still must provide back-up termination insurance to these plans.
 

• Email This
• Print
• Trackbacks (1)
• Share Link

In a final rule published December 12, 2008, the Occupational Safety and Health Administration (OSHA) allows employers who violate the agency’s rule on personal protective equipment (PPE) to be penalized on a per-employee basis. Previously, employers who failed to provide PPE to covered employees could be issued a citation for the aggregate offense only. Under the new rule, each instance in which any one employee is not provided with PPE or applicable safety training is deemed a separate OSH violation.

This rule does not, however, create any new OSHA safety and health standards or make substantive changes to the existing law. It merely clarifies an employer’s duty to provide PPE (including eye, hand, face, head, foot and hearing protection, respirators, and other forms of PPE) to each employee under the various respirator and training standards articulated in 29 CFR Parts 1910 through 1926.

The impetus for this rule was the Occupational Safety and Health Review Commission’s decision – later affirmed by the U.S. Court of Appeals for the Firth Circuit – that a Houston businessman who failed to provide respirators or safety training to 11 undocumented employees who handled asbestos could not be charged with safety violations for each employee, as the plain language of the safety standard addresses employees in the aggregate, not individually. Secretary of Labor v. Erik K. Ho, Ho Ho Ho Express, Inc. and Houston Fruitland, Inc., 20 O.S.H. Cas. (BNA) 1361 (Rev. Comm’n 2003), aff’d, Chao v. OSHRC and Erik K. Ho, 401 F.3d 355 (5th Cir. 2005).

In response, the final rule firmly states that:

The agency is proposing to amend its standards to make it unmistakably clear that each covered employee is required to receive PPE and training, and that each instance when an employee subject to a PPE or training requirement does not receive the required PPE or training may be considered a separate violation subject to a separate penalty.

This rule is yet another example of OSHA adopting a rule to expand and clarify its enforcement power. On February 13, 2008, a final rule became effective that set forth a scheme by which employers are required to pay for nearly all PPE, with limited exceptions. (72 Fed. Reg.64341-64440.)   While that rule sets forth the obligation to provide nearly all PPE in the workplace, this rule will create an extra incentive because it will force employers to be in compliance or be faced with multiple violations where they would have on faced single violation in the past. Thus, employers should be aware that should they fail to provide the necessary PPE, they could face substantially increased fines under the new rule, which goes into effect January 12, 2009.
 

• Email This
• Print
• Trackbacks
• Share Link

On December 2, OSHA announced that it extended the comment period on the agency’s Cranes and Derricks Proposed Rule until January 22, 2009. (73 Fed. Reg. 73197) This proposed rule addresses primary hazards associated with construction cranes and derricks and has received broad support among users of the equipment, labor organizations, crane operator trainers and testers, the insurance industry, and suppliers. Many home builder organizations, however, have opposed the provision dealing with operator certification requirements. Part of the reason why these and other organizations oppose this rule is the lack of entities that are recognized and approved to provide the certification required under this standard. OSHA believes that a four-year phase in period is enough time for additional certification organizations to enter the market, though there is simply no guarantee. Limited competition in the commercial sector will likely cause long waits and high costs for certification.

The proposed rule requires, among other things, that employers determine if the ground is able to support the weight of hoisting equipment and loads to be carried, and assess hazards that could affect the equipment’s safe operation. The proposal also mandates that crane operators be trained and certified.

According to OSHA, the length and complexity of the proposed rule is what necessitated the extended comment period. Any employer interested in commenting on the proposed rule may do so electronically at www.regulations.gov, or may send them by mail to OSHA Docket Office, Docket No. OSHA-2007-0066, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Comments 10 pages or fewer may be submitted via facsimile to 202-693-1648. Contact Jay Sumner of Littler Mendelson’s Governmental Affairs Team if you need more information about this rule, and/or would like assistance in filing comments.
 

• Email This
• Print
• Trackbacks
• Share Link

The Center for American Progress Action Fund, a powerful, pro-labor think tank, recently released a report criticizing the Department of Labor (DOL) for failing to enforce worker protection laws, and outlining ways in which the incoming administration can implement changes in an expedited manner without resorting to legislation or lengthy rule-making. The report, Five Strategies for the Obama Administration to Enforce Workers’ Rights at the Department of Labor, details five methods for revamping the DOL immediately. These recommendations include:

1. Using increased civil and criminal employer penalties to create a culture of accountability;
2. Increasing enforcement staff and using partnerships with community organizations, industry associations, state worker-protection agencies, and labor unions to assist under-funded enforcement divisions with industry monitoring;
3. Targeting high-violation sectors with strategic initiatives;
4. Using thorough record-keeping to drive enforcement priorities, enhance public accountability, and improved performance evaluation; and
5. Strengthening immigrant protections to improve job quality for all workers.

It is expected that these recommendations will be taken seriously by the next administration. John Podesta, former White House Chief of Staff to President Clinton and Co-Chair of Obama’s transition team, is the Founder and President of the Center for American Progress. As a high-ranking member of the transition team, Podesta will be instrumental in selecting the next Secretary of the DOL, as well as filling other critical vacancies in this agency. In fact, it would not be at all surprising if one or more such vacancies were filled by a member or affiliate of this think tank. For example, Tom Daschle – who was recently named as the next Secretary of the Department of Health and Human Services – is a Distinguished Senior Fellow of the Center for American Progress. Thus, expect the new leaders at the DOL – who could be mined from the think tank itself – to give serious consideration and possibly fully implement one or more of these strategies.
 

• Email This
• Print
• Trackbacks
• Share Link

Workplace safety has been touted as a top priority for the Obama Administration. Increased safety measures, however, often come at a high price for employers. A number of failed bills introduced during the Bush Administration will likely get a second viewing by the 111th Congress. These measures include:

• Protecting America’s Workers Act (PAWA) (H.R. 2049, S. 1244). This Act amends the Occupational Safety and Health Act (“OSH Act”) by, among other things, increasing civil and criminal penalties for employer violations, lowering the threshold for holding an employer criminally responsible for an employee’s death, and providing for felony charges for an employer’s repeated and willful violations that result in a worker’s death or serious injury. Additionally, revised regulations would likely require employers to go even beyond their current obligations, and shoulder the entire financial burden in providing personal protective equipment (PPE) to employees.
• Worker Protection Against Combustible Dust Explosions and Fires Act of 2008 (CDEFA) (H.R. 5522). This act would mandate a final rule regulating combustible dusts in the workplace, and would apply to manufacturing, processing, blending, conveying, repackaging, and handling of combustible particulate solids and their dusts. CDEFA would not apply to processes already covered by OSHA’s standard on grain facilities. This law would impact a broad spectrum of industries that manufacture, process, or otherwise handle materials that produce combustible dusts, requiring them to implement dust assessment, control, and employee safety training programs, among other obligations. Because the rules that would accompany this act have not been established, it is not yet clear how much this will cost the private sector. To the extent CDEFA does not overlap with preexisting rules and standards, it could be very costly to employers not in compliance with the final rule.
• Nurse and Patient Safety Protection Act of 2007 (H.R. 378). This act would have directed OSHA to issue new ergonomics regulations for the health care industry. This bill was in response to President Bush’s repeal of the highly controversial ergonomics regulations issued by OSHA during the Clinton Administration. Under the Congressional Review Act, Congress was able to rescind the regulations, and OSHA is not permitted to issue new ones without Congressional approval. Since any new ergonomics regulations must go through the legislative process, business interests will have the opportunity to voice opposition to bills such as the Nurse and Patent Safety Protection Act, which will likely emerge during the Obama Administration.

These and other safety–related measures will be closely followed
 

• Email This
• Print
• Trackbacks
• Share Link

Within the next two years, employers can expect to see the reintroduction of employment discrimination legislation that seeks to significantly broaden remedies available to aggrieved employees, weaken employers’ affirmative defenses in harassment claims, and eliminate an employer’s ability to use binding arbitration in employment disputes. Much of this legislation, which was first introduced in the last Congress, is intended to respond to limitations imposed by courts and Congress over the last 10 years.

The Civil Rights Act of 2008, introduced in January of this year (S. 2554, H.R. 5129), never made it past the legislative starting block. However, all or part of the Act will likely re-emerge in the next two years to a more receptive Congress. The provisions of this new law would:

• Eliminate the current $300,000 cap on compensatory damages.
• Add the availability of punitive damages for violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
• Make employers who are in violation of the Fair Labor Standards Act subject to compensatory and punitive damages, in addition to remedies already available to aggrieved employees.
• Render ineffective an employer’s affirmative defense in an Equal Pay Act claim that there exists a “bona fide factor other than sex” for the pay disparity.
• Require employers defending harassment claims to demonstrate that they have established and adequately publicized effective and “comprehensive” harassment prevention policies and complaint procedures and prove that they have undertaken “prompt, thorough and impartial investigations” of such claims. Currently, an employer can defeat a claim of harassment by proving it has exercised reasonable care to prevent and correct any harassing behavior, and that the aggrieved employees have not availed themselves of such procedures.
• Render pre-dispute arbitration agreements often found in employment applications, contracts and handbooks unenforceable with respect to civil rights disputes.

While many of these provisions were met with vociferous opposition from business interests, employers can expect to see serious consideration of these measures in the coming years.
 

• Email This
• Print
• Trackbacks
• Share Link

A bill mandating employees’ rights to request certain changes to their terms or conditions of employment is likely to be reintroduced in the 111th Congress. The potential bad news for employers is that legislation promoting more work/life balance is apt to receive bipartisan support. The good news is that this bill – if it resembles the Working Families Flexibility Act introduced in 2007 (S. 2419, H.R. 4301) – does not pose as onerous a burden on employers as other employment legislation likely to be resurrected under the New Administration. However, if passed in its current form, the bill would radically alter employees’ rights and create additional burdens for employers, particularly small businesses with little or no human resources function.

The Working Families Flexibility Act, whose companion bill was co-sponsored by then-Senator Obama, would have permitted employees to request changes to:

• the number of hours the employee is required to work
• the times when the employee is required to work
• where the employee is required to work

Upon receiving a request for changes to the terms or conditions of work, an employer would be required to meet with the employee to discuss the request, and provide a written decision regarding that request. An employer would need to provide a reason for any denial. Additionally, under the Act an employee would be entitled to reconsideration, and a final written determination by the employer. If the employer refused to comply with this process, an aggrieved employee could file a complaint with the Administrator of the Wage and Hour Division of the Employment Standards Administration of the Department of Labor. The Administrator would have the power to investigate, and assess civil penalties or award appropriate equitable relief, such as employment, reinstatement, promotion, back pay and a change in the terms or conditions of employment.

In essence, the burdens on the employer under this proposed act are largely administrative, as the requests could be denied for legitimate business reasons. On appeal, the Administrator would likely not be second-guessing the presumed legitimate business reasons denying the employee’s request for work flexibility. However, the mere fact that the employer would have to meet with the employee and justify its decision to not grant the employee’s request, combined with the possibility of yet another way employees could initiate legal action against their employers is a cause for management concern. In the event such legislation passes, employers should ensure they have an established process in place to ensure compliance and for dealing with employee work change requests.

 

• Email This
• Print
• Trackbacks
• Share Link

On November 17, 2008, the Department of Labor issued final revised regulations for the Family and Medical Leave Act.  Set to take effect January 16, 2009, these 750 pages of revised regulations represent the first update of the FMLA in more than 13 years.

Notably, these regulations expand the FMLA in two significant ways for military families. First, they provide up to 26 workweeks of leave in a 12-month period for family members caring for covered service members with serious injuries or illness incurred in the line of active duty. Second, they allow families of National Guard and Reserve personnel on active duty to take FMLA leave for “qualifying exigencies,” defined as: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.

The revised regulations also address the following issues:

• The Ragsdale Decision/Penalties
• Waiver of Rights
• Serious Health Condition
• Light Duty
• Perfect Attendance Awards
• Employer Notice Obligations
• Employee Notice
• Medical Certification Process (Content and Clarification)

For more information regarding the implications of these revised regulations and how to remain in compliance with the FMLA, see Littler ASAPs Relief in Sight? DOL Issues Final FMLA Regulations, and Department of Labor Clarifies FMLA Amendments Related to Servicemember Care and Other Military-Related Exigencies.
 

• Email This
• Print
• Trackbacks
• Share Link

Obama’s transition team has named the Agency Review Team leads for, among others, the Education and Labor Team and the Justice and Civil Rights Team. These individuals will review how agencies integral to labor and employment law and enforcement are operating, determine the direction the new administration will want these agencies to take, and identify key administrative candidates for presidential appointment. Since many of the team leaders are former Clinton Administration officials and/or have close ties with organized labor, it is expected that the Obama Administration will likely favor a marked increase in business and employee regulation and oversight. Additionally, it is expected that agencies charged with workplace oversight and employee protections will receive increased funding and thus an enhanced ability to enforce workplace laws.

This blog will track agency appointments of import, including those slated to fill the following positions:

• Two Commissioner openings on the Equal Employment Opportunity Commission;
• Three vacant seats, including the Chair, on the National Labor Relations Board;
• Secretary of the Department of Labor;
• Leaders of the following components of the Department of Labor:
  • Employment Standards Administration
    •  Wage and Hour Division
    •  Office of Federal Contract Compliance Programs
  • Occupational Health and Safety Administration

• Email This
• Print
• Trackbacks
• Share Link

If there was any doubt regarding the influence organized labor may exert in the Obama Administration, the selection of Patrick Gaspard as Director of the Office of Political Affairs should lay those doubts to rest.

Prior to serving as the Associate Director of Personnel for the new administration’s transition team, Gaspard served as the Executive Vice President of Politics and Legislation for Local 1199 of the Service Employees International Union (SEIU), a very large and influential labor organization. Gaspard’s union loyalties will no doubt have some bearing on his roll as Political Director, a position criticized by many as being unnecessary and/or a propagator of party divisiveness.

Partisanship notwithstanding, Gaspard’s appointment may be a harbinger of things to come. Top vacancies need to be filled in the National Labor Relations Board (NLRB), Department of Labor (DOL) and Equal Employment Opportunity Commission (EEOC), and organized labor is demanding that these posts be filled by supporters of labor. John Wilhelm, co-President of UNITE-HERE said in a leaked September memo:

We should have only one demand of an Obama administration: that the President of the United States publicly, repeatedly, and strenuously advocate that workers have unions, because unions are necessary to build a good America; that he apply that advocacy to specific worker fights and not just general statements; and that he put people on the [National Labor Relations Board] and in his cabinet who share that view and are committed to implementing it.

If these positions are seeded with strong proponents of organized labor, expect much stronger employee protections and employer regulations within the coming years. As it currently stands, Ellen Moran, a former official with the AFL-CIO, has been named as Obama’s Director of Communications. In addition, Duane Woerth, former President of the Air Line Pilots Association, is rumored to be in the running to lead the Federal Aviation Administration (FAA). Moreover, several labor officials or those with strong labor ties are being discussed as candidates for Secretary of Labor, including AFL-CIO Vice President Linda Chavez-Thompson and Mary Beth Maxwell, the Executive Director of American Rights at Work, a labor advocacy group.
 

• Email This
• Print
• Trackbacks
• Share Link

President-elect Obama has made it no secret that his workplace agenda strongly supports organized labor and increased employee protections. To that end, employers should expect a flurry of legislative and regulatory activity furthering Obama’s vision.

Because legislation is hashed out at the Committee level, interested observers should keep a watchful eye on a number of Senate and House Committees with authority over labor and employment issues. Generally, the committee chairs set the tone and agenda for their respective areas of influence.

After 10 years out of power, Democrats regained control of the Senate and House in 2006. Frustrated at the lack of ability to move forward their labor and employment agenda while in the minority--and in anticipation of a possible Democratic presidential victory in 2008--Democrats in the 110th Congress set forth a broad and far-reaching labor and employment agenda. Because the key players in the 111th Congress remain unchanged, it is anticipated that many labor and employment-related bills introduced in the 110th Congress will be reintroduced – this time to a president and Congress more receptive to their passage.

This blog will closely track actions taken by the following committees:

• Senate Health, Education, Labor and Pensions Committee;
• Senate Finance Committee, which has jurisdiction over healthcare, tax and pension issues;
• Senate Judiciary Committee, which oversees confirmation of Supreme Court justices as well as immigration reform legislation;
• House Education and Labor Committee;
• House Health, Education, Labor and Pensions Subcommittee, the origin of most labor and employment legislation;
• The House Ways and Means Committee, which is responsible for tax policy, employee benefits, and health care reform;
• House Judiciary Committee, charged with oversight of the federal judiciary and immigration reform legislation.

Check back to discover any changes in these committee memberships, and to follow the progress of labor and employment-related legislation introduced during the new administration.
 

• Email This
• Print
• Trackbacks
• Share Link

President-elect Obama is an advocate of organized labor. He has expressly stated that passage of the Employee Free Choice Act (EFCA) is a top priority. EFCA is without a doubt the most controversial labor initiative facing his administration. Organized labor is pushing hard to put EFCA at the top of the agenda for the First 100 Days of the new administration, but with other pressing economic priorities, and with strong opposition from the business community, it remains to be seen if EFCA will get top billing. Rep. George Miller (D-CA), Chair of the House Education and Labor Committee, has already stated that EFCA will not be the first bill considered by his committee. Nevertheless, there is no doubt that EFCA will be debated sooner rather than later.

Obama was a co-sponsor in the Senate of EFCA, first introduced in 2007 (H.R. 800; S. 1041). The key – and most contentious – provisions of this legislation seek to amend the National Labor Relations Act (NLRA) by:

• Requiring the National Labor Relations Board (NLRB) to certify a labor union as the exclusive bargaining representative of employees based on the union submitting authorization cards signed by a majority of employees (“card check”), without employees voting in a government-supervised, secret-ballot election;
• Requiring binding interest arbitration to set the terms of a new contract if an employer and a newly certified union are unable to reach a first contract within a specified number of days; and
• Expanding the NLRB’s remedial power for employer unfair labor practices during union organizing campaigns and during bargaining for first labor contracts, including the authority to award civil penalties.

Whether and in what incarnation EFCA becomes law during the new administration will likely be determined by the ultimate composition of the Senate – the law is clear to pass in the House. Currently, Democrats maintain 58 seats (including two Independents who caucus with the Democrats), with one seat up for grabs. Moreover, the last time EFCA was up for consideration, Republican Senator Arlen Specter (Pa.) voted in favor of this legislation. Therefore, assuming all Democrats vote in favor of EFCA, or if some Republicans can be persuaded to permit a vote, it is possible that the Democrats could invoke cloture and prevent a Republican filibuster, enabling the Act’s passage. Despite heavy union pressure and publicity to enact EFCA, it is not a foregone conclusion that all Democratic senators will vote in its favor. Many representing states with small percentages of union members will face considerable pressure from their business constituents to deny EFCA’s passage, or to remove some of its teeth. The U.S. Chamber of Commerce and others are already ratcheting up efforts to galvanize the business community against EFCA. Fearing strong business opposition, unions may attempt to slip EFCA provisions into a second economic stimulus bill instead of a stand-alone piece of legislation. Also possible is a compromise bill, such as one where employees, but not the employer, could seek a secret ballot election during a limited time period after a union card check certification is done (which is something the NLRB will do now in limited circumstances involving voluntary card check situations).

The evolution of EFCA will be closely monitored and reported. Employers should act now to prepare for EFCA, including evaluating their union susceptibility, through audits conducted by knowledgeable counsel. For more information on EFCA and its implications in the workplace, see The Employee Free Choice Act: A Critical Analysis, and The Employee Free Choice Act: It’s More Than Just a Misleading Name.

• Email This
• Print
• Trackbacks
• Share Link

Given the bleak economic forecast, it is inevitable that layoffs will continue to occur as the next Administration takes office. As a result, expect the reintroduction of the Federal Oversight, Reform, and Enforcement of the WARN Act (FOREWARN Act), first introduced in both the House and Senate (and co-sponsored by President-elect Obama) in 2007 (S. 1792 and H.R. 3662). Given the almost daily announcements of major companies laying off significant numbers of employees, this bill could get immediate attention. If enacted, this law will:

• Revise the definitions of “employer,” “plant closing,” and “mass layoff” found in the Worker Adjustment and Retraining Notification (“WARN”) Act to cover more and smaller employers.
• Require an employer to provide a 90-day written notice (up from the 60-day requirement) to employees and appropriate state and local governments before ordering a plant closing or mass layoff, thus forcing employers to predict their economic futures.
• Require the employer to notify the U.S. Secretary of Labor within 60 days of a closing or layoff.
• Make employers liable for double back pay in the event of a notice violation.
• Empower the Secretary of Labor to bring civil action on behalf of employees.

In essence, more and smaller employers would be required to foresee economic downturns and notify workers of mass layoffs or plant closings, and would be required to give more notice and face stiffer penalties in the event of a violation. Because President-elect Obama emphasized his support for the unemployed and middle class, and because many in Congress might find it hard to explain a vote against giving laid off employees more notice in the current economic environment, employers can expect serious consideration of the FOREWARN Act or similar legislation.

This trend toward increased employee protection in the event of a layoff is already evident at the state level. A growing number of states have passed their own notice laws. New York’s new WARN Act, for example, requires employers to provide 90 days’ notice prior to a plant closing, mass layoff or relocation occurring on or after February 1, 2009. Contrary to previous written statements it has issued, New York’s Department of Labor is now stating that an employer planning a layoff shortly after February 1, would have to provide notice prior to the law’s effective date to meet the 90-day requirement. The New York law applies to private employers with 50 or more employees who lay off at least 25 employees. Thus, this act not only provides for broader coverage and notice requirements than those articulated in the federal WARN Act, but offers a lower threshold for triggering those requirements. Some other state laws do the same.
 

• Email This
• Print
• Trackbacks
• Share Link

Given the current economic crisis and other pressing issues facing the new president, sweeping immigration legislation is unlikely. Immigration policy in general is a contentious topic, so expect more piecemeal legislation as opposed to radical, across-the-board reform, as even in this economy there are areas where the shortages are not meeting our demographic needs, such as healthcare recruitment.

Some programs in need of reauthorization by March 6, 2009, however, will likely be extended under the new administration. These include the E-Verify program, Conrad 30 program for physicians working in medically underserved areas, EB-5 million-dollar investor program, and the Religious Workers program. Additionally, Obama has expressed support for a temporary increase in the H-1B visa program as a stopgap measure until immigration policy is overhauled to permit a greater number of foreign skilled workers to receive permanent visas to work in this country.

The extension of E-Verify is apt to include the appropriation of additional funds to make it more accurate and efficient. The Department of Homeland Security (DHS) is expected to step up its efforts to use the E-Verify system as a vehicle to police immigration compliance, in addition to pursuing criminal investigations and indictments against employers that knowingly employ illegal aliens. To that end, I-9 compliance and proactive review of immigration policies will be particularly important in the coming years.
 

• Email This
• Print
• Trackbacks
• Share Link