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

Pursuant to one of President Obama’s executive orders issued on January 30, 2009, the Department of Labor’s (DOL) Office of Labor-Management Standards is rescinding regulations requiring federal contractors and subcontractors to post notices informing employees of their rights to refrain from joining a union, otherwise known as Beck notices.  The executive order at issue – Notification of Employee Rights Under Federal Labor Laws (number 13496) – requires such contractors to instead post notices explaining employees’ rights to join unions and bargain collectively under the National Labor Relations Act. Executive Order 13496 also revokes Executive Order 13201 issued under the Bush administration, which mandated that federal contractors post Beck notices at the worksite.

Because Obama’s executive order revokes Bush’s order, the regulations implementing that order are no longer in force or effect. Therefore, the DOL is rescinding these regulations through a final rule, and not a proposed rule, which would necessitate public comment.

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President Obama has selected J. Randolph “Randy” Babbitt, former president of the Air Line Pilots Association (ALPA), to lead the Federal Aviation Administration (FAA).  A former pilot, Babbitt served as President and CEO of US ALPA, the world’s largest professional airline pilots’ union representing more than 50,000 pilots in the United States and Canada. Babbitt currently is a partner of Oliver Wyman Group, a worldwide aviation consulting firm.

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A report released last week by conservative think tank Manhattan Institute for Policy Research argues that the Employee Free Choice Act’s (EFCA) mandatory arbitration provision equates to a government takeover of the private sector. According to the report, “EFCA seeks in a few short paragraphs to erect a labor regime whose untested provisions and coercive power will add countless business casualties to our already suffering economy.” In particular, the report laments that public debate on EFCA has centered on the card check provisions, and “has thus glossed over the synergistic risks when it is married to a program of compulsory arbitration.”

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A bill introduced this week by Rep. Pete Stark (D-Calif.) and co-sponsored by three others would provide employees with 12 weeks of paid benefits to take time off due to their own illness, or to care for a sick family member or new child. The Family Leave Insurance Act of 2009 (H.R. 1723) would create an employee- and employer-financed insurance fund to provide for the paid leave.

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The following summarizes some federal agency happenings this week:

Phyllis Borzi is Tapped to Serve as Assistant Secretary of DOL’s EBSA

President Obama has nominated Phyllis C. Borzi to serve as the Assistant Secretary of Labor for the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA). The EBSA is the organization within the DOL whose mission it is to educate and assist the 150 million Americans covered by more than 679,000 private retirement plans, 2.5 million health plans, and similar numbers of other welfare benefit plans; as well as plan sponsors and members of the employee benefits community.

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A report released yesterday by the Government Accountability Office (GAO) reveals that the Wage and Hour Division (WHD) of the Department of Labor (DOL) mishandled 9 out of 10 cases brought to them by a team of undercover agents posing as employees. According to Rep. George Miller (D- Calif.), chair of the House Education and Labor Committee, minimum wage, overtime and child labor complaints were “routinely brushed aside, improperly tracked, or inadequately investigated.” A video of his remarks at a hearing discussing the GAO's undercover investigation can be found here.  Rep. Miller claimed that the WHD “dropped the ball” on pursuing employee complaints, including those involving unlawful child labor, and often discouraged employees from pursuing their claims. According to Rep. Miller, Elaine Chao, the Secretary of Labor under the Bush Administration, was “absent without leave” during her time in charge of the DOL.

In response to this report’s findings, current Secretary of Labor Hilda Solis released a statement promising the following:

The department's Wage and Hour Division has already begun the process of adding 150 new investigators to its field offices to refocus the agency on these enforcement responsibilities. In addition, under the American Recovery and Reinvestment Act, the agency will hire 100 investigators to ensure that contractors on stimulus projects are in compliance with the applicable laws. The addition of these 250 new field investigators, a staff increase of more than a third, will reinvigorate the work of this important agency, which has suffered a loss of experienced personnel over the last several years.

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In a move sure to be welcomed by the business community, Senator Arlen Specter (R-Pa) has announced that he opposes the Employee Free Choice Act (EFCA) at this time, and will vote against cloture.  Speaking on the Senate floor, Specter claimed that given the current economic climate, “[t]his is a particularly bad time to enact Employee Free Choice legislation. . . I have made up my mind. Knowing I will not support cloture on this bill, senators may decide to move on and amend the NLRA [National Labor Relations Act] as I have suggested . . . ” Specter suggests amending the NLRA to require quicker elections, easier access by unions to employees, and heftier penalties for employer unfair labor practices, among other measures. He argues that this is “a better way to expand labor's clout in collective bargaining” as opposed to eliminating the secret ballot and instituting mandatory arbitration in the event a first contract is not reached within a specified period of time.

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In the wake of heavy criticism and a lawsuit filed by seven major airline companies, the Federal Aviation Administration (FAA) has decided to revoke its revised pilot and flight attendant rest rules for long-range flights. Instead, the agency announced it will work with airlines to study safety measures over the coming year.

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President Obama has picked Kathleen Martinez to be the Assistant Secretary for Disability Employment Policy (ODEP). The ODEP is a sub-cabinet level policy agency in the Department of Labor that coordinates efforts to develop and implement policies and practices for the hiring of people with disabilities in both the public and private sectors.

Blind since birth, Martinez has specialized in promoting disability rights throughout her career. She is currently the executive director of the World Institute on Disability (WID). In this position she has been instrumental in producing the international webzine DisabilityWorld (www.disabilityworld.org) in English and Spanish. Martinez also directs Proyecto Visión, the WID’s National Technical Assistance Center, to increase employment opportunities for Latinos with disabilities in the United States.

In 2002, Martinez was appointed by former President Bush as one of fifteen members of the National Council on Disability, an independent federal agency responsible for advising the President and Congress on disability policy. In 2005, Martinez was appointed as one of eight public members on the State Department’s Committee on Disability and Foreign Policy
 

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The Department of Labor (DOL) proposes to suspend for nine months the H–2A regulations published on December 18, 2008, which became effective on January 17, 2009. The amended rules—implemented in the closing days of the Bush administration—were intended to make it easier for agricultural employers to hire foreign workers on a temporary or seasonal basis to fill agricultural jobs where U.S. workers were unavailable. The sweeping changes to the H-2A regulations have proven to be difficult for the DOL to implement.  Continue reading on Littler's Global Immigration Counsel blog.

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A bill introduced last week would amend the Internal Revenue Code (IRC) to provide a tax credit for qualified donations of employee services. The Incentive to Serve Tax Act (H.R. 1644) would provide employers with a qualified employee service donation credit equal to 25 percent of the qualified wages paid to the employee performing the services.

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Legislation introduced by Rep. Thaddeus McCotter (R- MI) would amend the Internal Revenue Code to provide employers with a tax credit for hiring veterans. The Veterans’ Employment Transition Support Act of 2009 (VETS Act of 2009) (H.R. 1647) would grant a one-time tax credit to employers, and apply to the employment of any veteran certified as such by the designated local agency.

Employers would be granted credit in the amount of 40 percent of the employee’s first-year wages. A greater tax credit is available for the hiring of disabled veterans. The Act creates a sliding percentage tax benefit scale based on the degree of the employee’s disability. The amendments made by this Act would apply to veterans who begin work after the date of enactment.

This bill has been referred to the House Committees on Energy and Commerce, Education and Labor, and Ways and Means.

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On Friday, the United States Citizenship and Immigration Services (USCIS) announced that employers receiving funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act (covered funds) must meet additional requirements before hiring foreign nationals to work in the H-1B specialty occupation category.

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President Obama has chosen Joseph Szabo to head the Federal Railroad Administration (FRA). The FRA is the agency within the U.S. Department of Transportation charged with, among other things, promulgating and enforcing rail safety regulations, conducting research into equipment design and operating practices, and consolidating government support of rail transportation activities.

Szabo, a fifth-generation railroad worker, is currently the state legislative director in Illinois for the United Transportation Union (UTU), the nation’s largest rail union. In 1984 Szabo was elected as secretary/treasurer of UTU Local 1290, and eventually became the local’s delegate and legislative representative. He worked his way up the union ladder to become vice chairman of the UTU Illinois legislative board in 1991, and was eventually elected to serve as the union’s state director in 1996. In 2006, Szabo was appointed a vice president of the Illinois AFL-CIO, and in October 2008 was elected to a four-year term. Since January 15, 2009, Szabo has worked on an interim assignment in the UTU’s National Legislative Office in Washington, D.C., serving as Alternate National Legislative Director.

In response to Obama’s nomination of Szabo, UTU International President Mike Futhey stated that Szabo is “the first FRA administrator to come out of the ranks of rail labor. It is a validation that this Obama administration is a friend of organized labor.”
 

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The Department of Labor (DOL) has released on its website model Consolidated Omnibus Budget Reconciliation Act (COBRA) notices employers can provide to current and former employees as a means of complying with the notification mandates set forth in the American Recovery and Reinvestment Act of 2009 (ARRA), otherwise referred to as the stimulus package. ARRA, among other things, includes a provision that authorizes a 65 percent federal subsidy for continuing health care coverage under COBRA for employees who were involuntarily terminated between September 1, 2008 and December 31, 2009. Additionally, ARRA requires employers and plan sponsors to notify certain current and former plan participants and their beneficiaries about this reduction in health premium costs.

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Bills introduced in both chambers of Congress would amend the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code to prohibit preexisting condition exclusions in health plans. The Preexisting Condition Patient Protection Act of 2009 (H.R. 1558, S. 623) would preclude exclusions in group health plans as well as health insurance coverage in the group and individual markets.

The legislation also orders the Secretary of Health and Human Services (HHS) to provide Congress with a report within two years of the law’s enactment on the Act’s impact on health benefits coverage. Pursuant to this report, the HHS is authorized to request data from group health plans and health insurance issuers, including the number, nature, and dollar amount of claims made by enrollees, changes in the demographic composition of enrollees, and other information the Secretary deems appropriate.

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A bill introduced this week would debar or suspend contractors that unlawfully employ illegal aliens from federal contracting. The Border Control and Contractor Accountability Act of 2009 (H.R. 1555) authorizes the head of any executive agency awarding a federal contract to debar or suspend the contractor for three years and terminate the contract if it is determined, by a preponderance of the evidence, that the contractor directly employed or had knowledge of a subcontractor’s employment of any worker who is not authorized to work in this country, unless the contractor agrees to fire the employee.

Additionally, this act stipulates that any contractor awarded contracts by the Department of Homeland Security must use the E-Verify employee work authorization verification program.

This bill was referred to the House Committees on Homeland Security and Oversight and Government Reform.

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President Obama has nominated T. Michael Kerr to serve as the assistant secretary for administration and management at the Department of Labor (DOL), and M. Patricia Smith as DOL solicitor.

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In an informal discussion letter dated March 6, 2009, the Equal Employment Opportunity Commission (EEOC) has determined that requiring employees to take health risk assessments in order to obtain health insurance coverage would violate the Americans with Disabilities Act (ADA).  According to EEOC Associate Legal Counsel Peggy R. Mastroianni, such a mandatory health assessment would violate the ADA’s provisions requiring disability-related inquiries and medical examinations to be job-related and consistent with business necessity.

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A bill introduced this week would guarantee employers the right to implement English-only policies in the workplace.  Introduced by Rep. Tom Price (R-GA) and co-sponsored by 34 others, the Common Sense English Act (H.R. 1588) would amend the Civil Rights Act of 1964 by adding the following provision:

(o) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to require employees to speak English while engaged in work.

Earlier this month, the United States Commission on Civil Rights (USCCR) re-opened the period for public comment on English-only policies in the workplace.  On December 12, 2008, the USCCR held a briefing on this issue. According to the USCCR, the goal of the briefing was to examine whether employers have the legal authority to specify English as the official language of the workplace. The Equal Employment Opportunity Commission has taken the position that English-only policies risk national origin discrimination – a position that was heavily criticized by business interests during the Dec. 12 briefing.

The Common Sense English Act has been referred to the House Committee on Education and Labor.

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The Department of Labor has made available to employers a nationwide database of job candidates with disabilities.  The database currently lists 1,921 candidates seeking employment in a variety of fields. Private sector, nonfederal government and nonprofit employers can request unlimited searches by contacting the DOL’s Employer Assistance and Recruiting Network toll-free at (866) 327-6669.

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In addition to other problems with the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560), this controversial labor bill is also inconsistent with international law, so claims a letter sent to congressional leaders by the United States Council for International Business (USCIB) and the United States Chamber of Commerce (“U.S. Chamber”).  According to the letter, EFCA’s modification of the National Labor Relations Act (NLRA) to institute a card check union representation recognition process that potentially displaces the secret ballot election and forces parties to engage in mandatory binding arbitration in the event an initial collective bargaining agreement is not reached within a set period of time “contradict[s] principles of international labor law, as they have been defined by the International Labor Organization (ILO).”

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Legislation introduced last week would allow private university students who serve as teaching and research assistants to form or join a union. The Teaching and Research Assistant Collective Bargaining Rights Act (H.R. 1461) would amend the National Labor Relations Act (NLRA) by including such students in the definition of “employee.” Specifically, the bill would add the following provision:

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A bill introduced last week would amend several provisions of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The Servicemembers Access to Justice Act of 2009 (H.R. 1474) adds a number of new sections that, among other things, enhance USERRA enforcement and increase employer penalties in the event of a violation.

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President Obama has nominated Linda Puchala to hold a seat on the National Mediation Board (NMB). The three-member NMB is the agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively. Puchala would take the seat currently held by Bush-appointee and NMB Chair Read Van de Water.

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As previously discussed, the stimulus provisions regarding changes to the Consolidated Omnibus Budget Reconciliation Act (COBRA) are complex and confusing. Below, we address some common misconceptions about these provisions.

Misconception 1: The notices about the COBRA subsidy need to be distributed only to those employees who are involuntarily terminated.

Clarification: The COBRA subsidy provision requires that notices about the Federal COBRA subsidy are distributed to all employees who had or has a qualifying event from September 1, 2008 to December 31, 2009. Even if the employer believes that the employee will not qualify for the subsidy (e.g., the employee voluntarily terminated employment), that employee must receive the notice about the subsidy.

Example: Employee's hours are reduced and employee is reassigned, and employee resigns in response. Employee is entitled to the normal COBRA notice of rights and opportunity to elect continuation coverage, and in addition, the notice of the COBRA subsidy.

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Pursuant to the Obama administration’s announced intent to reverse a midnight regulation governing health care providers, the Department of Health and Human Services has published in the Federal Register its proposed rescission of the so-called provider conscience rule, published on December 19, 2008. The rule prohibits employment discrimination against health care workers if they harbor religious or moral objections to providing certain services such as abortion and the dispensing of birth control. This rule was controversial not only because it might have limited women’s access to certain health care services, but also because it subjected employers to potentially conflicting laws regarding religious discrimination in the workplace.

Comments on this proposed rescission are due by April 9, 2009. Such comments may be submitted electronically at http://www.Regulations.gov. Click on the link: “Comment or Submission” and enter the keywords: “Rescission Proposal.” Alternatively, comments may be made via email to proposedrescission@hhs.gov. Written comments (one original and two copies) may also be sent to: Office of Public Health and Science, Department of Health and Human Services, Attention: Rescission Proposal Comments, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Room 716G, Washington, DC 20201.

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In a late session yesterday, the Senate voted to approve the $410 billion omnibus appropriations bill (H.R. 1105).  The House had approved this measure – which extends the E-Verify and EB-5 investor visa programs until September 30, 2009 – on February 25.  In addition to temporarily extending these immigration programs, H.R. 1105, which is a combination of nine appropriations bills held over from the Bush administration, provides $56.3 billion to the Department of Labor. This amount is more than $2 billion over what the Bush administration had allocated for this agency.

Although the E-Verify program was extended until September 30, Sen. Jeff Sessions (R-Ala.) had offered an amendment to the bill that would have extended E-Verify for an additional five years. This amendment was tabled by a vote of 50-47.

President Obama is expected to sign this bill shortly.

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The day unions have been anticipating – and businesses have been dreading – has arrived. The Employee Free Choice Act (EFCA) was formally introduced in the 111th Congress today in both the House and Senate, although with noticeably fewer co-sponsors this time around. The Senate bill, sponsored by Senators Tom Harkin (D-Iowa) and Ted Kennedy (D-Mass.), was introduced with 40 co-sponsors, compared to 46 in 2007. In the House, Rep. George Miller (D-Calif.) introduced a companion bill with 223 co-sponsors, 7 fewer than when the bill was originally introduced last session. The discrepancy is compounded by the fact that Democrats gained seats in both houses in the past election, and may be a harbinger of the fight to come.

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While much of the labor-related legislative focus has been on the re-introduction of the Employee Free Choice Act (EFCA), another bill has slipped virtually unnoticed into the halls of Congress. The National Labor Relations Modernization Act (NLRMA) (H.R. 1355), introduced by Rep. Joe Sestak (D-Pa.), would amend the National Labor Relations Act (NLRA) to require employers to provide unions with equal access to employees prior to a representation election, increase employer penalties for unfair labor practices, and expedite the collective bargaining process. This bill resembles EFCA in many ways, but lacks the highly-contentious “card check” provision that obviates the need for a secret ballot election. While the supporters and opponents of EFCA continue to express a stiff resistance to any change in their relative positions – either EFCA as written or not at all – the NLRMA is the first attempt at striking a compromise position.

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During the White House Forum on Health Reform last week, President Obama expressed his desire for an overhaul of the nation’s health care system. But he would leave the details of this overhaul, however, up to the legislature. Therefore, it can be expected that a variety of health care reform bills will flood the docket in the coming months. While the majority of these bills will inevitably die in committee, aspects of these various proposals could be incorporated into a more comprehensive bill that would be expected to receive serious consideration. Democratic leaders have said that they hope to move comprehensive legislation to the House floor before the August recess.

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With rumors swirling that the Employee Free Choice Act (EFCA) may be introduced as early as tomorrow, both union and business interests have marshaled their forces in Washington. Both sides plan to descend on Congress this week in an effort to sway the remaining Senate holdouts. It seems increasingly likely that EFCA will be introduced in the Senate first, as support in the Senate is more tenuous than that in the House. Unions will have their work cut out for them, however, as even EFCA supporters have begun to acknowledge that gaining enough votes to invoke cloture – and thus avoid the inevitable filibuster – has become something of an uphill battle.

On ABC’s This Week, Sen. Claire McCaskill (D-Mo.) admitted: “I’m not sure that we have the votes” for cloture. Among those with wavering support are Sens. Blanche Lincoln (D-Ark.) and Mary Landrieu (D-La.), who will no doubt be prime targets for this week’s lobbying campaign. Democratic senators in right-to-work states also face pressure from their business constituents to oppose the bill. EFCA fell nine votes short in the Senate when it was first introduced in 2007, so every vote is critical. Although EFCA’s passage in the House is virtually guaranteed, some Democratic representatives have already voiced their opposition. On Friday, Rep. Dan Boren (D-Okla.) became the first House Democrat to openly declare his position against EFCA. More could follow. Until then, it will certainly be an interesting week. Among the possibilities to watch for is the potential for negotiations that could transform EFCA into something that might convince middle of the road Senators to support it.

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A bill that would give employees a statutory right to request flexible work terms and conditions was reintroduced this week. The Working Families Flexibility Act (H.R. 1274), introduced by Reps. Carolyn Maloney (D-NY), George Miller (D-Calif.), John Lewis (D-Ga.) and Elijah Cummings (D-Md.), would give workers the right to request flexible work options to balance the demands of their jobs and home life. This legislation was patterned after similar laws in Europe. Reps. Maloney and Miller had introduced this bill in the last congressional session (H.R. 4301). While still a senator, President Obama co-sponsored a companion bill (S. 2419) in the Senate along with Sen. Ted Kennedy (D-Mass.) and former Sen. Hilary Clinton (D-NY).

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The initial predictions that the Employee Free Choice Act (EFCA) would be introduced in Congress within the first 100 days of the Obama administration may yet prove to be true. Earlier this year, as interest and attention turned to our failing economy and emergency rescue measures, many revised their estimates, forecasting that EFCA would not make its debut until this spring at the earliest. It now appears, however, that EFCA may be reintroduced as soon as Monday.  According to a number of sources, including the National Association of Manufacturer’s blog ShopFloor and the Los Angeles County Federation of Labor, AFL-CIO, rumor has it that Rep. George Miller (D-Calif.) and Sen. Ted Kennedy (D-Mass.) are expected to introduce EFCA – also known as the “card check” legislation – on March 9, 2009.  If this rumor is accurate, Monday will spark the beginning of what promises to be a highly contentious legislative battle.

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The United States Commission on Civil Rights (USCCR) has re-opened the period for public comment on English-only policies in the workplace. On December 12, 2008, the USCCR held a briefing on this issue. A transcript of that briefing is available at the USCCR’s website.  Written statements of invited panelists and a link to the C-SPAN broadcast can also be found at the agency’s site.  (click on the heading: Commission Extends Comment Period on English in the Workplace Briefing until April 20, 2009).

According to the USCCR, the goal of the briefing was to examine whether employers have the legal authority to specify English as the official language of the workplace. The Equal Employment Opportunity Commission (EEOC) has taken the position that English-only policies risk national origin discrimination – a position that was heavily criticized by business interests during the Dec. 12 briefing.

Comments on English-only policies will be accepted until April 20, 2009.  Such comments may be sent by mail to: English in the Workplace Comments, US Commission on Civil Rights, 624 Ninth Street, NW, Washington, DC 20425, or via e-mail to comments@usccr.gov.

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The Equal Employment Opportunity Commission (EEOC) has published in the Federal Register its proposed regulations for Title II of the Genetic Information Non-Discrimination Act (GINA). GINA – which, among other things, prohibits employment discrimination based on genetic information, bars the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements – mandates that the EEOC issue implementing regulations by May 21 of this year. Title II of GINA, which governs the employment provisions of the Act, takes effect on November 21, 2009.  Comments on the proposed regulations are due by May 1, 2009.

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