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

The City of New Haven’s failure to use test results that would have disqualified any African American firefighters from receiving a promotion was discriminatory against the white and Hispanic test takers who received qualifying scores, and was therefore unlawful under Title VII of the Civil Rights Act, according to the U.S. Supreme Court in Ricci v. DeStefano. (pdf)  In this closely decided and much-anticipated decision, the Court held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”

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On Thursday, members of both the House and Senate reintroduced the Federal Oversight, Reform, and Enforcement of the WARN (FOREWARN) Act (H.R. 3042, S. 1374).  This legislation would amend the Worker Adjustment and Retraining Notification (WARN) Act by requiring more and smaller employers to notify workers of mass firings or plant closings and increasing employer penalties and enforcement mechanisms.

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By a vote of 29 to 17, the House Committee on Education and Labor on June 24 approved a bill that would mandate certain 401(k) fee disclosure requirements, and require that investment advice provided to employees regarding employer-sponsored retirement plans be independent and free of any conflict of interest. The 401(k) Fair Disclosure and Pension Security Act of 2009 (H.R. 2989) combines provisions of two other bills that were approved by the House Education and Labor’s Subcommittee on Health, Employment, Pensions and Labor on June 17 by votes of 13 to 8 along party lines. Those two bills are the 401(k) Fair Disclosure for Retirement Security Act (H.R. 1984) sponsored by Rep. George Miller (D-CA) and the Conflicted Advice Prohibition Act (H.R. 1988) sponsored by Rep. Robert Andrews (D-NJ).

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Rep. Barney Frank (D-Mass.) has reintroduced the Employment Non-Discrimination Act of 2009 (H.R. 2981), a bill that would create comprehensive employment anti-discrimination protections for individuals based on their sexual orientation or gender identity. For purposes of this bill, “gender identity” is defined as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” “Sexual orientation” means “homosexuality, heterosexuality, or bisexuality.” The provisions of this bill would impact the private sector as well as local, state and federal government employers.

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On Friday, House Democrats unveiled an 852-page rough draft of a healthcare reform bill prepared by members of the House Ways and Means, Energy and Commerce, and Education and Labor Committees. A copy of the full bill and summaries of its various components can be found here.

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As anticipated, the Senate on Friday confirmed the nomination of Jane Oates as assistant secretary for the Department of Labor’s (DOL) 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 Senate approved the nomination by voice vote, as is typical for most nominees once he or she has been approved by the applicable Senate committee. Earlier this month, the Senate Committee on Health, Education, Labor and Pensions sanctioned Oates’s nomination to head the ETA. Oates currently is the executive director of the New Jersey Commission on Higher Education and senior policy advisor to Governor Jon S. Corzine.

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In a 5-4 decision delivered by Justice Clarence Thomas, the U.S. Supreme Court in Gross v. FBL Financial Services, Inc. (pdf) has held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision, and that an employer need not show that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Thus, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.

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In a public meeting held Wednesday, the Equal Employment Opportunity Commission (EEOC) voted 2-1 to revise its Americans with Disabilities Act (ADA) regulations to conform with changes to the law made by the ADA Amendments Act of 2008 (ADAAA). The proposed revisions will now be forwarded to the Office of Management and Budget (OMB) for review before they can be formally published in the Federal Register.

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Senator John Isakson (R-Ga.) 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 established an energy efficiency and renewable worker training program through a provision known as the Green Jobs Act. The Green Jobs Improvement Act (S. 1238) would permit access to federal funding for these programs by removing the mandate that eligible entities “partner with labor organizations.” In essence, if this bill is enacted any contractor – regardless of union affiliation – with an accredited training program would be able to compete for federal grants under the Green Jobs Act. On April 22, 2009, Rep. John Kline (R-Minn.) introduced a companion bill (H.R. 2026) in the House.

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

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Last week both the House and Senate released details about their respective healthcare plans. The Senate Committee on Health, Education, Labor, and Pensions (HELP) recently unveiled a draft of its massive and contentious healthcare bill.  A press release announcing the publication of the Affordable Health Choices Act and copy of the draft bill can be found here. (pdf)  A brief summary of the legislation can be found here. (pdf)  Although the over 600-page bill is still a work in progress, some key provisions will no doubt stir intense debate in the coming weeks. Notably, the bill would change the regulation of private health insurance plans. For example, the bill would ban preexisting condition exclusions, and prohibit discrimination and premium variance based on health status, medical condition (physical and mental), claims experience, medical history, genetic information, gender, and disability, among other factors. The proposal also includes different options for establishing a public health plan, and permits dependents to stay on their parents’ plans until age 26.

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Last week Rep. Carolyn Maloney (D-NY) and Sen. Jeff Merkley (D-OR) introduced the Breastfeeding Promotion Act of 2009 (H.R. 2819, S. 1244), a bill that would, among other things, amend Title VII of the Civil Rights Act to clarify that breastfeeding and expressing breast milk in the workplace are protected activities; amend the Fair Labor Standards Act (FLSA) to require large employers to provide time and privacy for lactation; and establish a tax credit for employers that provide a suitable environment for employees to breastfeed or express milk.

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Legislation introduced by Rep. Steve King (R-IA) and Sen. Jim DeMint (R-SC) would amend the National Labor Relations Act (NLRA) to allow employers to refuse to hire undercover union organizers, commonly known as “salts.” The Truth in Employment Act (H.R. 2808, S. 1227) was introduced with 19 co-sponsors in the House, and three in the Senate. Specifically, this bill would add the following provision to Section 8(a) of the NLRA:

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The Senate Committee on Health, Education, Labor, and Pensions (HELP) has approved the nomination of Jane Oates to serve as the 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. Currently, Oates is the executive director of the New Jersey Commission on Higher Education and senior policy advisor to Governor Jon S. Corzine. Prior to this position, 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.

In other agency news, President Obama recently announced his intent to nominate Harry Hoglander to serve on the National Medication Board (NMB) for a third term. 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. Hoglander has been a member of the NMB since August 6, 2002, and has twice served as its chairman. A former commercial airline and U.S. Air Force pilot, Hoglander also served as the executive vice-president of the Airline Pilots Association. In addition, Hoglander is an attorney who worked as a legislative specialist for Rep. John Tierney (D-Mass.) for matters concerning transportation, labor, defense and veterans affairs. 

This entry has been revised to reflect the following correction:

Correction:  June 18, 2009

The Washington D.C. Employment Law Update blog entry posted June 12 provided incorrect information regarding the nomination of Jane Oates to serve as the assistant secretary of the Department of Labor's Employment and Training Administration (ETA).  Oates's nomination has been approved by the Senate HELP Committee; the Senate has not yet confirmed her nomination.

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On Monday the House of Representatives passed by voice vote the Wounded Veteran Job Security Act (H.R. 466), a bill that would amend the Uniformed Services Employment and Reemployment Rights Act (USERRA) to prohibit acts of discrimination and reprisal against an employee who is absent from work to receive medical treatment for a service-connected illness, injury or disability. Specifically, under this legislation these employees:

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Senator Russ Feingold (D-Wisc.) has reintroduced the Promoting Health Care Purchasing Cooperatives Act (S. 1165), a bill that would authorize the Secretary of Health and Human Services (HHS) to award grants to certain groups of employers to develop health care purchasing cooperatives. The legislation includes a grant application process for both self-insured and small businesses.

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The Department of Labor’s (DOL) Administrative Review Board (ARB) has upheld an administrative law judge’s (ALJ) finding that three hospitals that receive payments from a Health Maintenance Organization (HMO) for providing medical services to U.S. Government employees are covered federal subcontractors that must comply with the equal employment opportunity and affirmative action obligations imposed by the Office of Federal Contract Compliance Programs (OFCCP).

The three hospitals at issue in OFCCP v. UPMC Braddock had HMO contracts with the University of Pittsburgh Medical Center (UPMC) health plan to provide medical products and services to federal employees. The UPMC health plan, in turn, had contracted with the U.S. Office of Personnel Management (OPM) to provide such medical coverage. The three hospitals, therefore, did not directly contract with the OPM.

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A bill introduced in both the House and Senate would amend the National Labor Relations Act (NLRA) to permit an employer to award individual employees with financial incentives beyond the pay or compensation level specified in a collective bargaining agreement (CBA). Introduced by Senator David Vitter (R-LA) and Rep. Tom McClintock (R-CA), the Rewarding Achievement and Incentivizing Successful Employees Act or the “RAISE Act” (H.R. 2732, S. 1184) would add the following provision to section 9(a) of the NLRA:

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A bill introduced by Rep. Gabrielle Giffords (D-AZ) would extend the E-Verify program through September 2014. The Employee Verification Amendment Act of 2009 (H.R. 2679) would also order a General Accounting Office (GAO) study to determine the cause of errors made by this employment verification system, and its effects on small businesses.

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The federal government has told a Maryland judge that it plans to delay for the fourth time the effective date of a rule requiring certain federal contractors and subcontractors to use the E-Verify program. The rule – which would amend the Federal Acquisition Regulation (FAR) to mandate that specified contractors use the electronic employee verification system for current and prospective hires – was initially issued on November 14, 2008, and was to take effect January 15, 2009. Due in part to a lawsuit challenging the legality of the rule, the implementation date was pushed to February 20, then again to May 21 and June 30. The government has requested a stay of the litigation so that the new administration can review the authority of the rule. Pursuant to this request, the government said it would move the start date of the rule until September 8, 2009. A formal announcement of this delay is expected to be published in the Federal Register.

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