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

On April 29, 2009 the World Health Organization (WHO) raised the pandemic alert level to Phase 5, with Phase 6 indicating that a global pandemic is under way. While most countries will not be affected at Phase 5 (characterized by human-to-human spread of the virus into at least two countries in one WHO region), the declaration of Phase 5 is a strong signal that a pandemic is imminent and that the time to finalize the organization, communication and implementation of the planned mitigation measures is short. (See our previous blog entry for additional coverage of this event).

The WHO warnings and 6-phase scale is directed primarily at governments and public health authorities. The U.S. is implementing its own pandemic plans, currently planning and taking action as if the WHO alert level will reach Phase 6. The Obama administration, however, is not closing the U.S.-Mexico border, or any other borders for that matter.

Employers should continue to monitor public health authorities (both state and federal) including changes to travel, public meeting guidelines and other pertinent updates. The CDC is the primary resource for up-to-date information and many agencies will defer to the CDC’s information. The CDC is issuing interim guidance for various professions and industries. Additional pandemic planning and checklists can be found on the CDC’s website and www.pandemicflu.gov.

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Senator Russ Feingold (D-WI) has reintroduced the Arbitration Fairness Act (S. 931), a bill that would render unenforceable predispute agreements mandating arbitration of employment, consumer, franchise or civil rights claims. A similar bill was introduced in the House by Rep. Henry Johnson (D-GA) on February 12 (H.R. 1020).  The Senate bill, however, contains an additional provision that would expressly overturn the recent Supreme Court decision in 14 Penn Plaza L.L.C v. Pyett, in which the Court held that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate Age Discrimination in Employment Act (ADEA) claims is enforceable as a matter of federal law.  According to a press release issued by Sen. Feingold, the terms of the bill would not prohibit pre-dispute arbitration clauses in collective bargaining agreements, but would reverse Penn Plaza “to make it clear that such agreements may not waive employees’ rights to take federal and state statutory or constitutional claims to court.”

This bill has been referred to the Senate Committee on the Judiciary.
 

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To commemorate Equal Pay Day, Sen. Tom Harkin (D-Iowa) and Rep. Eleanor Holmes Norton (D-DC) reintroduced the Fair Pay Act (S. 904, H.R. 2151).  While full text versions of these bills are not yet available, they are believed to be substantially similar if not identical to the bills Harkin and Holmes Norton introduced during the last congressional session. Notably, this bill would amend the Fair Labor Standards Act (FLSA) by introducing the concept of equal pay for comparable – not equal – work. Specifically, the Fair Pay Act would make it unlawful to discriminate against employees:

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On April 28, both the House and Senate conducted hearings to address the adequacy of employer incentives for maintaining safe workplaces and penalties for violating Occupational Safety and Health (OSH) laws. Lawmakers in both chambers stressed the need for OSH reform.

The House Committee on Education and Labor’s hearing examined whether the Occupational Safety and Health Administration’s (OSHA) laws ensure that employers who fail to protect their workers are adequately penalized and deterred from committing future violations. Claiming that penalties against employers who commit OSH Act violations are “shockingly low,” Rep. Lynn Woolsey (D-Calif), Chair of the House Education and Labor Committee's Subcommittee on Workforce Protections, testified that the bill she introduced last week – the Protecting America’s Workers Act (PAWA) – would provide necessary OSH Act reform, including increased civil and criminal penalties for employers. A video of her testimony can be found here.

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The Department of Labor’s (DOL) Office of Labor-Management Standards (OLMS) has announced that it plans to issue a notice of proposed rulemaking regarding revisions to the Labor Organization Officer and Employee Report (LM-30) financial disclosure form. Form LM-30, which had been revised in 2007, requires union officers and employees (except employees performing exclusively clerical or custodial services) to report certain financial transactions and financial interests in order to make public any actual or potential conflict between their personal financial interests and their obligations to the labor organization and its members. The proposed rulemaking will focus on the changes made by the 2007 regulatory revisions which, the agency claims, dramatically altered the old Form LM-30 and instructions that had not substantially changed in over 40 years.

The new LM-30 raised the ire of organized labor, as it imposed new requirements and expanded the form from two to nine pages. The AFL-CIO filed a lawsuit – AFL-CIO v. Chao – in the U.S. District Court for the District of Columbia to enjoin the use of the new form, alleging that the DOL lacked the authority to impose the new rule, and that the form’s expanded requirements are arbitrary and capricious. This case is still pending. The revised rule will address the scope and extent of the reporting obligations, and the questions raised by the recent litigation. Until these questions are resolved, the OLMS will accept either the old Form LM-30 or the new one for compliance purposes.

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Recently-introduced legislation would require employers to provide Worker Adjustment Retraining Notification (WARN) Act notices to employees in the event of mass layoffs that occur at more than one worksite, and would double the penalties for violations. The Alert Laid off Employees in Reasonable Time (ALERT) Act (H.R. 2077), introduced by Rep. Luis Gutierrez (D-Ill) and co-sponsored by four others, expands the current WARN requirement that employers provide 60 days’ notice of an impending mass layoff affecting either 500 employees or 33 percent of the workforce impacting at least 50 employees at one particular worksite.

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Claiming that his political philosophy is now more in line with Democrats than Republicans, Senator Arlen Specter (R-Pa) recently announced his intent to run for reelection as a Democratic in the 2010 primary. If he were to win as a Democrat in 2010, and Al Franken wins his fight to take Norm Coleman’s Minnesota senate seat as is expected, the Democratic party, with two independents voting with the Democratic caucus, will have the 60 votes needed to stave off any senate filibuster if all vote according to party lines on a particular issue. Although Specter rebuffs the suggestion that he will be an automatic 60th vote for cloture, and claims his position on the Employee Free Choice Act (EFCA) will not change, his decision has necessarily raised concern within the Republican party. In earlier statements, Specter stated his opposition to the EFCA, but support for consideration of revisions to the National Labor Relations Act, specifically the election procedures and some remedial provisions. Even with Specter’s change in party affiliation, enough Democratic Senators oppose cloture on EFCA to make passage unlikely. However, Specter’s position on other aspects of the Democratic labor and employment law agenda may change with Specter’s defection.

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The Obama administration declared a public health emergency regarding the swine flu outbreak to ensure that the Department of Health and Human Services has the resources it needs to respond quickly and effectively in the event that the pandemic threat level is raised.

The World Health Organization recently raised the alert level to phase 4 — level six being a full pandemic — meaning that there is sustained transmission among people in at least one country. Monday was the first time this alert level was raised above phase 3.  Secretary Janet Napolitano, head of the Department of Homeland Security, told reporters that the U.S. is preparing as if the swine flu outbreak is a full pandemic. President Obama assures the public that it is not a cause for alarm but rather a "heightened state of alert.” Labor Secretary Hilda Solis has recently stated that enforcing worker safety and health regulations would be one of her top priorities. 

Employers should assemble a pandemic team and devise a plan if they have not already done so. The team should develop a coordinated and efficient pandemic response plan so that the needed public health information is gathered and transmitted, and that communications to managers and employees about operations, cleaning protocols, leave of absences and benefits are consistent and effective. This information should be disseminated so anticipated disruptions are managed effectively while avoiding litigation risks and panic in the workplace.  

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Last week Assistant Senate Majority Leader Richard Durbin (D-Ill.) and Sen. Charles Grassley (R-Iowa) introduced legislation that would completely reform the H-1B and L-1 visa guest worker programs. The H-1B and L-1 Visa Reform Act (S. 887) aims to close perceived loopholes in the programs that critics argue allow foreign workers to displace qualified Americans seeking the same employment.

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A bill seeking to amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations was reintroduced last week. Drafted by Rep. Lynn Woolsey (D-Calif) and co-sponsored by 16 others, the Protecting America’s Workers Act (PAWA) (H.R. 2067) had been introduced in both the 109th and 110th Congresses without success. President Obama had been a co-sponsor of a previous version. The most recent version of PAWA contains even stiffer penalties than those proposed in the earlier versions. Recent workplace safety violations have focused attention on PAWA, so this bill could have more success this session. In fact, Labor Secretary Hilda Solis has recently stated that enforcing worker safety and health regulations would be one of her top priorities.

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Labor advocate and founding executive director of the American Rights at Work (ARW) Mary Beth Maxwell is joining the Department of Labor (DOL) as a senior advisor to Secretary of Labor Hilda Solis. According to an ARW press release, Maxwell will work with the White House Task Force on Middle Class Working Families, the Obama Administration’s new initiative aimed at “restoring labor standards, improving workplace safety, enhancing work and family balance, protecting retirement security, and helping protect middle- and working-class incomes.”

Maxwell has been a vocal advocate of the beleaguered Employee Free Choice Act (EFCA), and was widely rumored to be Obama’s pick to serve as Secretary of Labor. Maxwell is most known for her work at the ARW, a nonprofit advocacy organization begun in 2003 whose mission is to “promote the freedom of workers to join a union and bargain collectively.” Solis herself has ties to the ARW, having once served as the organization’s treasurer and board member. Prior to working at the ARW, Maxwell served as National Field Director for Jobs with Justice, an organization affiliated with the Service Employees International Union with which Secretary Solis is closely aligned. Her other positions have included acting as Deputy Field Director for NARAL, directing the pro-choice organization’s electoral, legislative, media, and fundraising training programs for local affiliates. Maxwell has also worked as Field Director for the United States Student Association.
 

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President Obama has announced his intent to nominate Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS). The USCIS is the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. To that end, the USCIS adjudicates, among other things, the petitions and applications of potential immigrants and guest workers.

Born in Cuba, Mayorkas is currently a litigation partner in a private law firm. Prior to entering private practice, Mayorkas served as the U.S. Attorney for the Central District of California, where – at the age of 39 – he began as the youngest U.S. Attorney in the country. In this position, Mayorkas prosecuted a wide variety of cases, including those involving public corruption, investment fraud, civil rights violations, high-tech and computer-related crime, organized crime, environmental crime, and international money laundering. In addition, the National Law Journal has named Mayorkas as one of the "50 Most Influential Minority Lawyers in America."

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President Obama has announced his plans to nominate Craig Becker and Mark Pearce as board members of the National Labor Relations Board (NLRB or Board). The five-member Board serves as a quasi-judicial body in deciding cases under the National Labor Relations Act (NLRA). Board Members are appointed to five-year terms, with the term of one member expiring each year. The Board traditionally consists of three members selected by the party controlling the White House, and two from the other party. Becker and Pearce, along with Chairwoman Liebman, would constitute the three Democratic-selected seats. Assuming President Obama follows precedent, only one Republican Board seat will remain vacant. When and how that seat will be filled is not clear.

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Legislation that would amend the Employee Retirement Income Security Act (ERISA) which would prohibit certain entities that have some relationship with a retirement plan involving a plan's investments from providing investment advice for participants and beneficiaries under individual account plans was introduced this week. The Conflicted Investment Advice Prohibition Act of 2009 (H.R. 1988) would add a paragraph to ERISA defining and outlining specific qualifications and requirements for an “independent investment advisor” with respect to an individual account plan. If this bill becomes law, it is possible that a huge number of existing relationships between plans and investment providers would need to be abrogated.

According to Rep. Robert Andrews (D-NJ) who introduced the bill, the purpose of this legislation is to “restore ERISA’s prohibition on self-interested investment advisers providing advice to employer-sponsored retirement accounts, thereby safeguarding the retirement savings of millions of hardworking Americans.”

This bill has been referred to the House Committee on Education and Labor.

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Representatives Gabrielle Giffords (D-AZ) and Sam Johnson (R-TX) have introduced a bill that would establish a mandatory electronic verification system to take the place of E-Verify. As reported at Workforce.com, Giffords and Johnson hope their bill, the New Employee Verification Act of 2009 (H.R. 2028), will either be the foundation for employment verification in a broader immigration bill or move through Congress on its own.  Continue reading at Littler's Global Immigration Counsel blog.

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Rep. John Kline (R-Minn) has introduced legislation that would amend the Workforce Investment Act of 1998 to make non-union training programs eligible for Federal funding under the “Green Jobs” program. The Energy Independence and Security Act of 2007 (H.R. 6) established an energy efficiency and renewable worker training program through a provision known as the Green Jobs Act. The Green Jobs Improvement Act (H.R. 2026) would permit access to these programs by removing the mandate that eligible entities “partner with labor organizations.”

This bill has been referred to the House Committee on Education and Labor.
 

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The Equal Employment Opportunity Commission (EEOC) has issued a technical assistance document outlining employer best practices for avoiding discrimination against workers with caregiving responsibilities. The document, Employer Best Practices for Workers with Caregiving Responsibilities, supplements Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, a guidance document the EEOC released on this topic in 2007. The earlier document specifically examines how federal anti-discrimination laws apply to workers with certain family caregiving obligations. The new guidance provides suggestions for best practices that an employer can proactively adopt to potentially lessen the chances of committing EEO violations against caregiving employees. Suggestions include implementing personal or sick leave policies that allow employees to use leave to care for sick family members, flexible work arrangements, part-time opportunities with proportional compensation and benefits, and equal-opportunity policies that address unlawful discrimination against caregivers.

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In the weeks since a litany of Senators recently spoke out against the Employee Free Choice Act (EFCA), organized labor has nonetheless complained that it deserves an up-or-down vote on whether to take away employees’ right to vote in secret on unionization. With little hope that these Senators will change their position, Andy Stern, head of the Service Employees International Union (SEIU), has now acknowledged that the prospects for EFCA’s passage look grim, indicating the first large fissure in organized labor’s efforts to pass EFCA. In an interview with The Washington Post, admitting a strategic error on the part of EFCA supporters, Stern intimated that the version of EFCA introduced in the Senate – which contains, among other things, the infamous “card check” and mandatory arbitration provisions – was introduced in this form to mirror the companion bill introduced in the House, and that this strategy might not have been the best one to ensure EFCA’s passage. According to the article, Stern said:

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Senator Richard Durbin (D-IL) has reintroduced a bill in the Senate designed to use the tax code as a carrot to encourage U.S. companies to create and maintain domestic jobs with specific pay and benefits standards and maintain neutrality toward union organizing efforts. The Patriot Employers Act (S. 829) was initially introduced by Durbin – and co-sponsored by former Senator Obama – in 2007. While the current bill has not yet been released for publication, it is believed to contain the same provisions set forth in the earlier version. That bill would provide “Patriot Employers” with a 1 % tax credit if they do the following:

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On April 20, 2009, U.S. Citizenship and Immigration Services (USCIS) provided its second update regarding the H-1B cap count. USCIS has received approximately 44,000 H-1B petitions subject to the regular cap of 65,000. This represents only 1,000 additional filings since April 13th and means that new H-1B petitions may still be filed.  Continue reading at Littler's Global Immigration Counsel blog.

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The Equal Employment Opportunity Commission (EEOC) announced that it will hold a public meeting on Wednesday, April 22 to discuss discrimination against employees with caregiving responsibilities. At this meeting, the agency will release a new document, Employer Best Practices for Workers with Caregiving Responsibilities. This document will supplement formal guidance the EEOC issued on this topic in 2007.

The meeting will be held at the EEOC’s Washington, D.C. headquarters at 131 M Street, N.E. at 10 a.m. (Eastern Time). The scheduled panelists include: Cynthia Calvert, Deputy Director, The Center for WorkLife Law; Karen Minatelli, Director of Work and Family Programs, National Partnership for Women and Families; Heather Boushey, Senior Economist, Center for American Progress; and Jeff Norris, President, Equal Employment Advisory Council.
 

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On April 16, 2009, the U.S. Department of Defense announced that the effective date of the Federal Contractor E-Verify Rule will be delayed until June 30, 2009. To that end, the federal government will include the new E-Verify clause in affected contracts on or after June 30, 2009. The government will also take steps to reach out to affected contractors to bi-laterally modify existing affected contracts on or after that date. Continue reading on Littler's Global Immigration Counsel blog.

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President Obama has picked Thomasina Rogers as his nominee for Chair of the Occupational Safety and Health Review Commission (“OSHRC” or “Review Commission”). The OSHRC is a quasi-judicial independent federal agency created to decide contests of citations or penalties resulting from Occupational Safety and Health Administration (OSHA) workplace inspections. As Chair, Rogers would be in charge of the administrative operations of the Review Commission, as well as participate with other commissioners in case adjudication.

Rogers was appointed to the Review Commission in 1998 by former President Bill Clinton, and served as Chair from 1999-2002. She was reappointed in April 2003. In 1994, Rogers served as a chair of the Administrative Conference of the U.S. until its dissolution at the end of 1995. In addition, Rogers served for seven years in the Federal Government's Senior Executive Service (SES). While at the SES, Rogers worked as legal counsel to the Equal Employment Opportunity Commission (EEOC), where she had primary responsibility for managing the development of the Americans With Disabilities Act (ADA) employment regulations.

Rogers is a graduate of Northwestern University and Columbia University School of Law.

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President Obama has chosen Lorelei Boylan as his nominee for Administrator of the Department of Labor’s Wage and Hour Division. The Wage and Hour Division (WHD) is a sub-agency within the Department of Labor’s (DOL) Employment Standards Administration (ESA) responsible for enforcing federal labor laws concerning, among other topics, minimum wage, overtime pay, recordkeeping, youth employment and special employment, family and medical leave, migrant workers, lie detector tests, worker protections in certain temporary worker programs, and the prevailing wages for government service and construction contracts.

Boylan currently serves as the Director of Strategic Enforcement at the New York State Department of Labor, Labor Standards Division. According to a White House press release, Boylan supervises the Apparel Industry/Fair Wages Task Force, a state-wide specialized unit charged with investigating low-wage industries for wage and hour violations. Prior to heading the Task Force, Boylan spearheaded the Bureau of Immigrant Workers’ Rights, a newly formed division of New York’s DOL, where she developed policies to assist those with limited English proficiency. Prior to working for New York’s DOL, Boylan practiced law as an Assistant Attorney General in the New York State Attorney General’s Office. She was hired under the Honor’s Program to represent the State in defensive and affirmative litigation. In this capacity, Boylan investigated businesses for violations of state and federal labor laws and represented the Department of Health in New York State Supreme Court and the New York Court of Appeals. Before becoming a lawyer, Boylan worked for several years for a global monitoring company, counseling firms on compliance with state and federal labor laws, OSHA, immigration and tax laws.

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U.S. Labor Secretary Hilda Solis has appointed Jordan Barab as deputy assistant secretary for the Occupational Safety and Health Administration (OSHA). Barab will also serve as acting assistant secretary for OSHA as of April 13.

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President Obama has chosen Jane Oates as his nominee for assistant secretary of the Department of Labor’s Employment and Training Administration (ETA).  The ETA is the DOL’s sub-agency tasked with administering federal government job training and worker dislocation programs, federal grants to states for public employment service programs, and unemployment insurance benefits. The ETA provides these services primarily through state and local workforce development systems.

Currently, Oates is the executive director of the New Jersey Commission on Higher Education and senior policy advisor to Governor Jon S. Corzine. Oates also serves on the State Employment and Training Commission (SETC), the State Commission on Adult Literacy and Education, New Jersey High School Redesign Task Force, the Public Sector Work Group and chairs the State Educators Health Benefits Commission and the Governor’s Schools Board of Overseers. Before taking her current position in 2006, Oates served as the senior policy advisor on higher education, national service, adult literacy, education research and workforce issues to Sen. Edward Kennedy (D-Mass.) on the U.S. Senate Committee on Health, Education, Labor and Pensions.

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The Occupational Safety and Health Administration (OSHA) has released its revised Field Operations Manual (FOM). (pdf)  According to an OSHA news release, this document, formerly known as the Field Inspection Reference Manual, “constitutes OSHA's general enforcement policy and procedures for use by the agency's field offices in conducting inspections, issuing citations and proposing penalties. It is the guiding document for OSHA's compliance officers, whose mission is to assure the safety and health of America's working men and women.”

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Yesterday the immigration community was surprised to learn that while the 20,000 H-1B numbers set aside for the advanced U.S. degree cap were nearly all accounted for, only two-thirds of the 65,000 regular H-1B cap numbers were used up. This means that the U.S. Citizenship and Immigration Services (USCIS) continues to accept applications for initial H-1B status more than a week after the H-1B filing season opened up on April 1st. This is in stark contrast to the 133,000 H-1B petitions received within the first two days of filing last year.  Continue reading on Littler's Global Immigration Counsel blog.

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The Internal Revenue Service (IRS) has issued Notice 2009-27, which provides guidance on the COBRA premium subsidy that was created under the American Recovery and Reinvestment Act of 2009 (ARRA), or 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 qualify as “assistance eligible.”

The IRS guidance provides 27 pages of detailed questions and answers on issues including who qualifies as an assistance eligible individual, what constitutes an involuntary termination for purposes of the definition of an assistance eligible individual, how to calculate a premium reduction, and which types of coverage are suitable for premium reductions, among other topics.

For more information on the IRS guidance, see Littler’s ASAP: IRS Clarifies Key Provisions of the New COBRA Subsidy by: Nancy L. Ober.

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The Department of Labor (DOL) has posted on its website expanded employer guidance on the premium Consolidated Omnibus Budget Reconciliation Act (COBRA) subsidies provided for by the American Recovery and Reinvestment Act of 2009 (ARRA), or stimulus plan. A significant portion of this Q & A guidance, FAQs For Employers About COBRA Premium Reduction Under ARRA, clarifies the new COBRA notice requirements under ARRA. ARRA requires employers and plan sponsors to notify certain current and former plan participants and their beneficiaries about the reduction in health premium costs. Earlier this month, the DOL posted on its website model notices that an employer can provide to current and former employees to comply with the ARRA notice provisions.

The expanded guidance provides a number of examples to help employers determine who should receive the full version of the general, abbreviated general and alternative notices, and who should receive the notice in connection with extended election periods. Other portions of the Q & A address more general topics concerning the COBRA subsidy, such as which plans are subject to the premium reduction provisions, and who is eligible to receive this benefit.

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The Occupational Safety and Health Administration (OSHA) has published a new guidance document on its respiratory protection standard. The document, Assigned Protection Factors for the Revised Respiratory Protection Standard, (pdf) provides employers with information for selecting respirators for employees exposed to airborne contaminants.

The Respiratory Protection standard applies to general industry, construction, longshoring, shipyard and marine terminal workplaces, and governs fit testing, medical evaluations, specific training and proper respirator use.

OSHA revised its existing Respiratory Protection standard in 2006 to add Assigned Protection Factors (APF) and Maximum Use Concentration (MUC) provisions. The APF is the workplace level of respiratory protection that a respirator or class of respirators is able to provide to workers. Employers use APF numbers to select the appropriate class of respirators to provide the necessary level of protection against airborne contaminants. According to OSHA’s Deputy Assistant Secretary of Labor Donald G. Shalhoub: “proper respirator selection prevents exposure to hazardous contaminants and is an important component of an effective respiratory protection program. . . . This guidance document serves as another useful resource for protecting the health and safety of workers at risk for respiratory illnesses.”
 

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A bill that would provide a tax credit to companies offering “effective and comprehensive wellness programs” was introduced in both the House and Senate yesterday. The Healthy Workforce Act (H.R. 1897, S. 803) would amend the Internal Revenue Code (IRC) to provide a credit for 50 percent of the costs employers would incur in implementing such wellness programs for their employees. The bill was introduced by Senators Tom Harkin (D-IA) and John Cornyn (R-TX) and Representatives Earl Blumenauer (D-OR) and Mary Bono Mack (R-CA). Similar legislation was introduced and debated in 2007 but died in committee.

According to information provided by Sen. Harkin, to be eligible for this credit, businesses would need to provide programs that include, among other elements, “health risk assessments, health awareness and behavior change programs, meaningful incentives for program participation and an employee committee that tailors programs to meet workforce needs.” While the current bill has not yet been published, it is likely the same if not substantially similar to the bill introduced in 2007. That bill capped the credit amount at $200 per employee for businesses with fewer than 200 employees, and $100 per employee for those with more than 200 employees.

The House bill has been referred to the House Committee on Ways and Means, and the Senate version to the Senate Committee on Finance.

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Sen. Arlen Specter’s (R-Pa.) announcement that he would not vote for cloture on the Employee Free Choice Act (EFCA) now appears to have only been a prelude to a rapid decline in support from Democrats who formerly supported the Act, including some unlikely defectors. Recently, Sen. Dianne Feinstein (D-Calif.) – who cosponsored the same legislation in 2007 – announced that due to the faltering economy, she would not support EFCA in its current form. Instead, she claimed – as did Specter – that she would support a compromise measure. According to an article by the Los Angeles Times, Feinstein said: “[t]his is an extraordinarily difficult economy, and feelings are very strong on both sides of the issue. I would hope there is some way to find common ground that would be agreeable to both business and labor.”  It should be noted that both the business community and organized labor are on record as strongly opposing any compromise on EFCA.

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In an opinion released today, the U.S. Supreme Court in 14 Penn Plaza L.L.C v. Pyett held that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate Age Discrimination in Employment Act (ADEA) claims is enforceable as a matter of federal law.

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