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

Legislation introduced by Rep. Lynn Woolsey (D-Ca.) would amend the Family and Medical Leave Act (FMLA) by extending coverage to domestic partners, and permitting leave to be taken to address acts of domestic violence, sexual assault and stalking. The Domestic Violence Leave Act (H.R. 2515) would authorize FMLA leave to be taken on behalf of oneself or for a family member to seek medical attention, legal assistance, and psychological counseling for, or recovery from injuries caused by, domestic violence, sexual assault or stalking. Leave could also be taken to participate in safety planning or any other activity necessitated by the above factors that must be undertaken during work hours. Under the terms of this bill, an employer may seek certification that the employee is legitimately taking FMLA leave for the reasons outlined in the Act. A similar bill recently introduced in the House and Senate – the Healthy Families Act – would provide paid leave to employees affected by acts of domestic violence, sexual assault or stalking.

The second portion of the Domestic Violence Leave Act would amend the language of the FMLA by including the phrase “or domestic partner” in every instance where “spouse” is mentioned. Federal employees would also be covered by this bill.

This legislation has been referred to the House Committees on Education and Labor, Oversight and Government Reform, and House Administration.
 

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Last week Rep. Donna Edwards (D-Md) introduced legislation that would amend the Fair Labor Standards Act (FLSA) to establish a base minimum wage for tipped employees. The Working for Adequate Gains for Employment in Services Act or “WAGES Act” (H.R. 2570) – which has 20 co-sponsors – would take effect 90 days after the bill’s enactment, mandating that tipped employees be paid at least $3.75 per hour. This amount would increase to $5.00 per hour beginning July 1, 2011. The following year, this base amount would increase to 70 percent of the minimum wage as established under section 6(a)(1) of the FLSA, or $5.50 per hour, whichever amount is greater.

If enacted, this bill would have significant impact on the service industry. Under the terms of this legislation, the Secretary of Labor would be required to publish any increase in the base amount for tipped employees at least 10 days in advance of any change.

The WAGES Act has been referred to the House Committee on Education and Labor.

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Last week Rep. Joe Wilson (R-S.C.) introduced the Freedom From Union Violence Act of 2009 (H.R. 2537), a bill that would impose a fine of up to $100,000 and/or a prison sentence of up to 20 years for anyone who commits an act of violence or extortion during a labor dispute. This legislation amends section 1951 of title 18 of the United States Code, an anti-racketeering measure more commonly known as the Hobbs Act. The Hobbs Act is a federal law prohibiting actual or attempted robbery or extortion affecting interstate or foreign commerce. According to a press release issued by Wilson’s office, a loophole in the Hobbs Act permits “violence and intimidation on behalf of labor unions . . . if it is ruled that such coercion was to further a ‘legitimate’ union objective.” Wilson further claims that this loophole “opens the door for extortion and violence against American workers.”

The Freedom From Union Violence Act would close this loophole and include a provision stating that:

whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion, or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section, shall be fined not more than $100,000, imprisoned for a term of not more than 20 years, or both.

The bill explicitly exempts conduct that is “incidental to otherwise peaceful picketing during the course of a labor dispute.”

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

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Last week, the Senate confirmed President Obama’s nominations for three important administration positions. Seth Harris has been approved to serve as deputy secretary of the Department of Labor (DOL), the second-highest position within the DOL. Harris is a former law professor and DOL policy aide for the Clinton administration, and has written a number of articles in favor of flexible work arrangements.

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President Obama announced this morning that Sonia Sotomayor is his pick to replace U.S. Supreme Court Justice David Souter when he steps down next month. Sotomayor is the first Hispanic woman to be nominated to the high court, and is considered by some conservatives to be an activist judge with left-leaning tendencies. The daughter of Puerto Rican parents, Sotomayor is a judge on the Second U.S. Circuit Court of Appeals. Before serving on the Second Circuit, Sotomayor worked as a trial judge and prosecutor. As an appellate judge, Sotomayor has issued decisions on a number of employment-related cases, more often than not siding with the plaintiffs. Scotusblog has posted an in-depth analysis of Sotomayor’s appellate opinions in civil cases.

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During a press conference held this morning, Rep. Alan Grayson (D-Fla.) – whose district includes popular tourist spots in Orlando – introduced the Paid Vacation Act of 2009, a bill that would mandate paid vacation leave for most employees.  According to a press release, the measure would require employers with 100 or more employees to provide a week of paid vacation. After three years, businesses with a minimum of 50 employees would have to meet the same requirement, while those with 100 or more employees would be required to provide employees with two weeks of paid vacation leave. To be entitled to take such paid leave, employees would have to work for at least one year. Part-time employees would need to work a minimum of 25 hours per week and 1,250 hours per year to be eligible.

An article at Roll Call notes that the response to this proposal has been somewhat lukewarm. Critics of the measure have emphasized that a blanket federally-mandated vacation policy will not work in all organizations, would impose additional burdens on businesses in an already weak economy, and could affect hiring decisions for some employers.  

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A bill recently introduced in the Senate would prevent employers from firing or otherwise disciplining volunteer firefighters and other emergency medical personnel for missing work while responding to emergencies or other major disasters. The Volunteer Firefighter and EMS Personnel Job Protection Act (S. 1025), introduced by Sen. Thomas Carper (D-Del.), would apply to volunteer workers who are specifically deployed to respond to an emergency situation. Employees must, however, provide employers with written verification—within a reasonable period of time—that the absence was due to a legitimate emergency, and that the employee responded in an official capacity.

The protections offered by this bill would not extend to emergency duty-related absences exceeding 14 days in a given year. Additionally, the protections would not apply if the employee responds to an emergency or major disaster without being officially requested to do so, and if he or she fails to provide the requisite verification of the emergency. Additionally, the terms of this bill would permit an employer to reduce an employee’s regular pay for the time the employee is absent due to the emergency situation. The bill provides employees with a private right of action in civil court against an employer for violations of this Act. The bill would also direct the Secretary of Labor to conduct a study on the impact that this legislation would have on employers of volunteer firefighters and emergency workers.

This bill has been referred to the Senate Committee on Health, Employment, Labor and Pensions.
 

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After the Employee Free Choice Act’s (EFCA) momentum seemed to come to a screeching halt when Sen. Arlen Specter (D-Pa), along with other Democrats, announced last month that they would not vote for cloture on the bill, efforts to revive the measure are mounting. Yesterday, Sen. Tom Harkin (D-Iowa) – one of EFCA’s chief sponsors – said that he is “actively” talking with those Democratic senators who have expressed reservations about the “card check” legislation to try to come up with a compromise bill that he could take directly to the Senate floor.  In the alternative, Harkin claimed that he would move forward with the original bill sometime in June. In response, business groups have reiterated their position that any so-called compromise would be unacceptable.

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A bill that would require employers to provide paid sick leave to employees was reintroduced in the House of Representatives on Monday by Rep. Rosa DeLauro (D-Conn.), and co-sponsored by 101 others. The Healthy Families Act (H.R. 2460) would allow employees to earn one hour of paid sick time for every 30 hours worked up to a maximum of 56 hours (seven days) annually. Employees could take this leave to attend to their own or a family member’s illness, or use the paid time off for preventative care such as doctor’s appointments. In addition, the bill provides leave for employees who are the victims of domestic violence, stalking or sexual assault. Employers with 15 or more employees would be covered by this legislation.

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A couple of bills introduced in recent weeks would have significant impact on the health care industry. A bill introduced last week by Rep. John Conyers (D-MI) would require the establishment of a safe patient handling and injury prevention standard for direct-care registered nurses and other health care workers. The Nurse and Health Care Worker Protection Act of 2009 (H.R. 2381) would order the Secretary of Labor to propose a standard under the Occupational Safety and Health (OSH) Act within one year of the bill’s enactment. The final standard – which would, among other things, eliminate manual lifting of patients through the use of assistive patient handling equipment and other mechanical devices – would be issued within two years of this date.

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Last week the Small Business Health Options Program (SHOP Act) (H.R. 2360) was reintroduced by Rep. Ron Kind (D-WI). This bill has bipartisan support, with 25 co-sponsors. In essence, this legislation would amend the Public Health Service Act to create state or nationwide health insurance purchasing pools for small businesses and the self-employed. A small business for purposes of this bill would be one with fewer than 100 employees who work an average of at least 35 hours per week. Self-employed individuals covered by this act must earn at least $5,000 in net earnings or not less than $15,000 in gross earnings from self-employment in the preceding taxable year.

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The U.S. Supreme Court has held that an employer does not necessarily violate the Pregnancy Discrimination Act (PDA) when it pays pension benefits calculated in part under an accrual rule – applied prior to the PDA’s enactment – that gave less retirement credit for pregnancy than for medical leave generally. The Court in AT&T v. Hulteen (pdf) further held that the benefit calculation rule used by the employer in this case was part of a bona fide seniority system that insulated it from a Title VII challenge.

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The Wage and Hour Division (WHD) of the Department of Labor (DOL) has issued an opinion letter (FMLA2009-1-A) clarifying that an employer’s internal notification policy regarding employee attendance can be enforced against an employee attempting to take leave under the Family and Medical Leave Act (FMLA) so long as compliance with the notice policy is practicable given the employee’s particular circumstances. In a previous opinion letter dated January 15, 1999 (FMLA-101) the DOL had concluded that employers’ call-in/no show policies and related disciplinary measures could not be applied so long as the employee provided notice within two business days that the leave was FMLA-related, regardless of whether such notice could have been provided sooner. To the extent that FMLA-101 created a blanket “two-day rule” for providing FMLA notice, the WHD is rescinding it.

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Within the next six months, the Equal Employment Opportunity Commission (EEOC) expects to develop and/or issue six regulations affecting workplace laws and practices. According to the agency’s spring regulatory agenda released on Monday, regulations implementing the employment provisions of the Genetic Information Non-Discrimination Act (GINA) are expected to be issued by the end of this month. The EEOC’s proposed GINA regulations were published earlier this year.

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A number of federal agencies including the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) are requesting information in advance of a future rulemaking on group health plans. Specifically, the EBSA’s Request for Information (RFI) seeks input on questions related to the mental health parity provisions made by the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The RFI was published in the April 28, 2009 edition of the Federal Register.

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The Department of Labor (DOL) has published in today’s Federal Register its semiannual regulatory agenda. (pdf)  The agenda lists all regulations the agency expects will be under review or development until April 2010, as well as those completed within the past six months. Specifically, the document lists 13 items in the pre-rule, proposed rule, final rule, and long-term action stages, along with a brief description, review timetable, comment period, and agency contact information for each regulation. 

Of the 13 regulations, four are listed as being under section 610 review. Section 610 of the Regulatory Flexibility Act (RFA) requires each federal agency to develop a plan for the periodic review of its rules that have or will have a significant economic impact on a substantial number of small entities. Those regulations currently under such review by the Occupational Safety and Health Administration (OSHA) include the bloodborne pathogens and methylene chloride standards. Also included in this review category are the explosives and blasting standard in the pre-rule stage at the Mine Safety and Health Administration (MSHA) and the plan assets – participant contributions regulation under review by the Employee Benefits Security Administration (EBSA). 
 

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Legislation providing employers with various incentives for promoting employee health may receive serious consideration now that Congress is contemplating major healthcare reform. A recent article published in The New York Times claims that proposals such as the Healthy Workforce Act (H.R. 1897, S. 803), which would provide employers with a tax credit for 50 percent of the costs incurred in implementing “effective and comprehensive” employee wellness programs, could be incorporated into broader healthcare reform. The article also claims Congress may loosen legal restrictions to enable employers to use monetary rewards or penalties to encourage healthy lifestyles.

While many employers currently offer some form of wellness plan or benefits, doing so must be done with care. As the NYT article emphasizes, employers need to be mindful of tax, labor, and insurance laws when implementing such incentive programs. Paid gym memberships, for example, may count as an employee’s taxable income. Moreover, employers must take care not to discriminate on the basis of an employee’s health status or medical history. Critics also argue that the carrot and stick approach to promoting employee wellness may constitute a form of lifestyle discrimination, and could amount to an invasion of privacy. The proposals floating around Congress seek to remove some of these legal landmines to make it easier for employers to establish wellness programs. Given that one of President Obama’s eight principles for health legislation is that it must “invest in prevention and wellness,” such proposals are likely to receive attention in the coming months.  For additional employment law issues associated with wellness initiatives, see Littler’s Report Employer Mandated Wellness Initiatives: The Continuum from Voluntary to Mandatory Plans.

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On April 30, the Department of Homeland Security (DHS) issued a Fact Sheet discussing its revised Worksite Enforcement Strategy. The DHS enforcement strategy was revised at the direction of DHS Secretary Janet Napolitano after she expressed concerns that enforcement efforts were targeted more at employees rather than employers abusing the law. Indeed, the Fact Sheet acknowledges that there were more than 6,000 arrests related to worksite enforcement in 2008, but only 135 employers were arrested.  Continue reading at Littler's Global Immigration Counsel blog. 

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The U.S. Court of Appeals for the District of Columbia Circuit has held that the National Labor Relations Board (“NLRB” or “Board”) acted without authority in entering an order against a company for alleged unfair labor practices, as the two-member panel did not constitute a quorum as required by the National Labor Relations Act (NLRA). In Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB (pdf), the only issue before the appellate court was whether the Board had the statutory authority make its decision, not whether its findings, conclusions and remedies were justified.

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Two bills were introduced this week that seek to amend the Family Medical Leave Act (FMLA) and its regulations. On Wednesday, Rep. Carol Shea-Porter (D-NH) introduced legislation that would reverse Department of Labor (DOL) regulations on the FMLA that were issued in November 2008.  The Family and Medical Leave Restoration Act (H.R. 2161) would essentially nullify the new DOL regulations, restore prior ones, and direct the Secretary of Labor to revise additional regulations under this Act.

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