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

A few new labor and employment-related bills focusing on health care and wage requirements for highway construction projects were introduced this week.

Health Care

Bills extending COBRA coverage seem very popular this session. In addition to the recent House Stimulus Bill (H.R. 1)  and the Coverage Continuity Act of 2009 (S. 29) which included provisions extending such health care coverage, the COBRA Coverage Extension Act of 2009 (H.R. 694) introduced by Rep. Joe Sestak (D-PA) would temporarily extend the basic 18-month period of COBRA continuation coverage to 24 months. This bill was referred to the House Ways and Means Committee.

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Parties who file documents with the National Labor Relations Board (NLRB) may now serve such documents on other parties via e-mail, according a final rule published in today’s Federal Register. This represents a departure from previous NLRB policy, requiring a party who filed a document electronically with the Agency to notify all other parties via telephone about the filing, then serve them with a physical copy of the document the following day at the latest.

Under the new rule, if a document is filed electronically and if e-mail service is not possible, a party must notify the other party(ies) by phone, then provide a copy of the document via personal service no later than the next day, by overnight delivery service, or with consent, via facsimile.

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Embedded in the nearly 650-page $819 billion stimulus bill (H.R. 1) that cleared the U.S. House of Representatives yesterday is a provision requiring contractors hired using stimulus funds to use the E-Verify employment verification system. Section 1114 of this bill, as introduced in the House, reads:

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The effective date of the new regulations requiring the use of E-Verify by certain federal contractors has been postponed an additional three months until May 21, 2009.

Fore more information on this announcement, see Littler’s ASAP: Effective Date of Federal Contractor E-Verify Regulation Pushed Back to May 2009 by Jorge R. Lopez, Joshua S. Roffman and Lisa A. Cottle.

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Just ten days into his term, President Obama has signed into law a bill that will make it easier to bring wage discrimination lawsuits against employers. The Lilly Ledbetter Fair Pay Act, which Congress made retroactive to May 28, 2007, extends the time period for employees to assert pay discrimination claims by making each paycheck a discriminatory act; not just the initial pay determination.

For more information on this law and how it will affect employers, see Littler’s ASAP: Paycheck Rule Revived for Pay Discrimination Claims with Signing of the Lilly Ledbetter Fair Pay Act by Alison N. Davis, Stephanie L. Hankin, and Tyree Ayers Jackson.

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Despite vigorous employer opposition and declining political and public support, the Employee Free Choice Act (EFCA) will likely become a focal point this summer. According to an article published in the Las Vegas Sun, Senate majority Leader Harry Reid (D-Nev.) still considers this bill an “important piece of legislation,” that the Senate hopes to address “sometime this summer.” The delay represents a significant deviation from expectations for the bill’s early consideration and a temporary setback for organized labor.

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As expected, the Lilly Ledbetter Fair Pay Act (S. 181) breezed through the U.S. House of Representatives today by a vote of 250 to 177. The House had previously voted to consider the bill under a closed rule excluding the introduction of amendments, virtually guaranteeing its passage. The Senate approved S. 181 on January 22 by a vote of 61-36 without amendment, despite a number of modifications Republican senators attempted to make to this wage discrimination legislation to limit its scope.

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Not even a full month into the year, the new Congress keeps flooding the docket with employment-related bills. Despite organized labor’s push to introduce union-friendly legislation early in President Obama’s term, and the many civil rights and work/family balance bills expected to be introduced, instead, the recent employment-related bills reflect the current financial crisis and rising unemployment. Providing health care and other assistance to the unemployed appears to have taken precedence over the drive for increased union membership and providing for enhanced employee rights and benefits, at least for now.

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President Obama has named Stuart J. Ishimaru to serve as acting chairman of the Equal Employment Opportunity Commission (EEOC). Ishimaru, who was appointed to the EEOC in 2003 by former President Bush, is the senior Democratic member of the agency. Christine M. Griffin, a Democrat who has been a member of the EEOC since 2006, was named as acting vice chairman.

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The Occupational Safety and Health Administration (OSHA) has issued an advanced notice of proposed rulemaking regarding the development of a standard that addresses occupational exposure to diacetyl and food flavorings containing diacetyl. Occupational exposure to diacetyl has been linked to the lung disease commonly known as “popcorn lung.”

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In what will be the first employment-related bill to reach President Obama’s desk, the Lilly Ledbetter Fair Pay Act of 2009 (S. 181) cleared the Senate yesterday by a vote of 61 to 36. If signed – as pledged by President Obama and indicated by the presence of the bill’s namesake on President Obama’s train ride to Washington for his inauguration – this legislation will likely lead to an increase in the number of wage discrimination claims filed against employers and make it more difficult to defend against such actions.

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The incoming administration took no time in setting up cybershop at the official White House website Tuesday afternoon. Before the President had even taken the oath of office, the files that once occupied Obama’s Change.gov site were transferred to the White House government page. Notably absent from this new site, however, was any mention of Obama’s ambitious labor agenda, including his desire to pass the controversial Employee Free Choice Act (EFCA). In fact, “Labor” isn’t even listed as one of the 24 subcategories under the link outlining the administration’s broad “Agenda.” Organized labor initiatives do not even appear under the catch-all “Additional Issues” subcategory.

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President Obama has designated Wilma B. Liebman as the Chairman of the National Labor Relations Board (NLRB). As an ardent supporter of unions and a vocal critic of right to work laws and recent NLRB decisions promoting an employee’s ability to reject unionization, Liebman will surely take the NLRB in a new direction – and one that is not necessarily favorable to employers.

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The Occupational Safety and Health Administration published a notice of proposed rulemaking in the January 21 Federal Register that addresses the fit-test procedures for respiratory protection face masks. The rule would add two PortaCount® quantitative fit-testing protocols to the OSHA Respiratory Protection Standard (29 CFR 1910.134). Employers in general industry, shipyard employment, and the construction industry would be affected by this change.

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A bill that would amend section 274A(e)(4)(A) of the Immigration and Nationality Act to substantially increase employer penalties for violations was introduced last week by Rep. Sue Wilkins Myrick (R-NC). The 10k Run for the Border Act (H.R. 588) would increase the fines for knowingly hiring or recruiting an undocumented worker, or continuing to employ an illegal alien when the employee’s legal status changes or becomes known.

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The Mine Safety and Health Administration (MSHA) and the National Institute for Occupational Safety and Health (NIOSH) published a proposed rule Friday in the Federal Register that establishes criteria for approving “continuous personal dust monitors,” new devices worn by miners to report coal dust exposure levels on a real-time and continuous basis. This proposal updates the application requirements for existing coal mine dust personal sampler units (CMDPSUs) that are currently used. The proposed rule addresses only the standards for approving the device requirements; it does not change regulations on how these sampling devices should be used.

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A bill introduced in the House seeks to amend the Family and Medical Leave Act (FMLA) by abolishing the hours of service requirement for benefits. The Family Fairness Act of 2009 (H.R. 389), introduced by Rep. Tammy Baldwin (D-Wisc) would eliminate the stipulation that employees must have worked at least 1,250 hours during the previous 12-month period to qualify for FMLA benefits. An employee would still be required to have worked for the employer for at least 12 months to be eligible for FMLA leave. The practical effect of this bill is the expansion of the pool of employees – especially those working part-time – covered under the FMLA.

This bill was referred to the House Committees on Education and Labor, Oversight and Government Reform and Administration.
 

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The Senate voted by a margin of 72 to 23 today to effectively limit all debate on the Lilly Ledbetter Fair Pay Act of 2009 (S. 181), virtually guaranteeing its passage. A bill with identical terms easily cleared the House without amendment by a vote of 247-171 last Friday. The House measure had been combined with H.R. 12, the Paycheck Fairness Act, which had also received House approval on Jan. 9 by a vote of 256-163. This week the Senate decided to consider the two bills separately, most likely to ensure that at least one employee-friendly bill gets signed when President-elect Obama takes office next week.

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Regulations governing the first changes to the Family and Medical Leave Act (FMLA) in 15 years take effect Friday, January 16. The FMLA amendments, which provide for military caregiver leave and qualifying exigency leave, were introduced as part of the fiscal year 2008 Defense Authorization Act. The final rule governing how these amendments impact the FMLA was issued last November.

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A new bill introduced in the House by Rep. David Dreier (R-Calif.) would significantly increase fines and jail time for employers who knowingly hire illegal aliens or fail to verify their employment eligibility using a new procedure outlined in the bill. The Illegal Immigration Enforcement and Social Security Protection Act of 2009 (H.R. 98) increases penalties for each hiring offense of up to $50,000, up from fines ranging between $275 and $16,000 under current law. Offending employers could also be liable for deportation costs. In addition, employers would face jail sentences of up to five years per offense, up from the current maximum six-month sentence. The bill likewise authorizes the Secretary of Homeland Security to bring a civil action against an employer who fails to pay the assessed penalty.

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A new bill introduced in the Senate would enable certain qualified individuals enrolled in COBRA to extend their health care coverage for an additional 12 months. The Coverage Continuity Act of 2009 (S. 29) provides that qualified beneficiaries whose COBRA eligibility ends between January 1, 2009 and December 31, 2009 can elect 12 additional months of coverage provided that they are continuously enrolled under COBRA. The purpose of this bill is to provide continued health care and tax credits for those who are unemployed.

In addition to the COBRA extension, this bill amends the Internal Revenue Code of 1986 to increase the tax credit for health insurance costs of eligible individuals and provides this tax relief to those covered under COBRA.
 

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The federal government has agreed to delay the effective date of the E-Verify federal contractor regulation announced in November until February 20, 2009. The delay raises the question of whether President-elect Obama will add the regulation to his rescission list once he takes office.

For more information on this development, see Littler's ASAP: Effective Date of E-Verify Federal Contractor Regulation Postponed Until February 20, 2009 by Jorge R. Lopez, Lisa A. Cottle and Joshua S. Roffman.

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As anticipated, the House swiftly passed two pay-related bills that will make it easier for employees to sue for wage discrimination. The Paycheck Fairness Act (H.R. 12) and the Lilly Ledbetter Fair Pay Act (H.R. 11) were put to a vote without amendment, as they had been heavily vetted in the last Congress, yet failed to survive the Senate. The House today voted 256-163 in favor of the Paycheck Fairness Act, and 247-171 in favor of the Lilly Ledbetter Fair Pay Act. They will be sent to the Senate – which is likely to be more receptive to these bills this time around – as a package. Consideration may begin as early as next week. If approved, President-elect Obama will almost certainly sign them into law, starting the 111th Congress off to a decidedly worker-friendly start. Interestingly, Congress got off to a similar start in the Clinton era by passing a previously-vetted Family and Medical Leave Act as its first major bill weeks after Clinton took office.

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In the absence of EEOC regulations on the new Americans with Disabilities Act Amendments Act of 2008 (ADAAA) – which made significant changes to the Americans with Disabilities Act of 1990 (ADA) by, among other things, broadening the scope of who is disabled under the ADA and Section 503 of the Rehabilitation Act– two organizations with the Department of Labor have created publications and other compliance resources for employers.

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Before the 111th Congress has even convened, House Majority Leader Steny Hoyer (D-Md.) announced that two employment-related bills will reach the House floor later this week. Both the Paycheck Fairness Act (H.R. 12) and the Lilly Ledbetter Fair Pay Act (H.R. 11) were introduced and easily passed the House during the last Congress, but stalled in the Senate due primarily to Republican opposition and a presidential veto threat. It is noteworthy that both bills are being sent directly to the House floor instead of being vetted through the committee process. In anticipation of a possible Democratic White House in 2009, congressional Democrats in the 110th Congress launched a comprehensive labor and employment law legislative agenda. (For more information, see Littler’s Report Transition to a New (Work) Day: An Initial Look At Workplace Change in the Obama Era). Congressional Democrats intended to vet this agenda in advance so that when the 111th Congress convened on January 6, 2009, these laws could be quickly enacted with the threat of a presidential veto removed. The introduction of the Paycheck Fairness Act and the Lilly Ledbetter Fair Pay Act directly to the House floor is the first installment in the full-implementation of this strategy.

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On January 2, 2009, the Department of Labor (DOL) published a final regulation in the Federal Register that outlines the procedures for assessing civil penalties up to $1,000 per day against employee benefit administrators or sponsors who fail to disclose certain documents to participants, beneficiaries, employee representatives, and other employees as required by the Employee Retirement Income Security Act (ERISA), as amended by the Pension Protection Act of 2006 (PPA).

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The Department of Labor issued guidance explaining how a faith-based organization receiving DOL financial assistance can seek exemption under the Religious Freedom Restoration Act (RFRA) from the prohibition that religion not be used as a hiring criteria.

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On the last day of 2008, the Department of Labor’s Mine Safety and Health Administration (MSHA) published two final rules in the Federal Register setting standards for underground mine operations. One final rule requires underground mine operators to use flame-resistant conveyor belts and institute other fire protection measures. This rule implements recommendations set forth in a report released last year by a technical study panel established under Section 11 of the Mine Improvement and New Emergency Response (MINER) Act of 2006. According to a press release issued by the MSHA, the final rule mandates that underground coal mine operators:

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