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

The House of Representatives has voted 237 to 185 to approve the Corporate and Financial Institution Compensation Fairness Act of 2009 (H.R. 3269), a measure that would give shareholders of public companies an advisory vote on executive compensation. Earlier this week, the House Committee on Financial Services voted 40-28 to advance this “Say-on-Pay” legislation.

In addition to providing shareholders with a nonbinding approval vote over executive compensation and golden parachutes, this bill would direct federal agencies to establish regulations requiring certain financial institutions to disclose the structure of their incentive-based compensation arrangements to determine whether such arrangements encourage inappropriate risk. This bill would also prohibit covered financial institutions from rewarding their executives and corporate officers with compensation structures that encourage risky behavior. Moreover, if enacted into law, this legislation would require the members of public company compensation committees to be independent, and would establish authority for such committees to use independent consultants and counsel. While it took only ten days from the date of introduction for this bill to clear the House, it will face a more difficult path in the Senate, where many have voiced concern that the measure would allow the government to unnecessarily intrude on private business operations.

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Rep. Lynn Woolsey (D-CA) and Sen. Chris Dodd (D-CT) have introduced a bill in both chambers of Congress that would enhance family and medical leave benefits for family members of veterans. The Supporting Military Families Act of 2009 (H.R. 3403, S. 1543) would amend the Family and Medical Leave Act’s (FMLA) military family provisions that were enacted as part of the Fiscal Year 2008 National Defense Authorization Act that entitle family or primary caregivers of military members to take up to 26 weeks of unpaid leave to care for the wounded service member. The new bill would extend the time in which the family member could take such leave, and expand the scope of those who would be covered by these medical exigency leave provisions.

According to a press release issued by Rep. Woolsey’s office, this bill would:

• Extend the twenty-six weeks of leave to family members of veterans for up to five years after a veteran leaves service, if he or she develops a service-related injury or illness that was incurred, or, in the case of an existing injury, was aggravated while on active duty.
• Extend exigency leave to covered active duty members in regular military service. Current Department of Labor (DOL) regulations limit access to exigency leave to Reserve and National Guard members only.
• Extend exigency leave eligibility to those service members deployed to a foreign country. The current law limits availability of exigency leave to those deployed “in support of a contingency operation.”

The House version of this bill has been referred to House Committee on House Administration. The Senate companion bill has been referred to the Senate Committee on Health, Education, Labor and Pensions.

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On Thursday, the House Committee on Transportation and Infrastructure approved by voice vote a bi-partisan bill that would establish new training and service standards for commercial pilots. Introduced by Rep. Jerry Costello (D-IL), Chairman of the House Aviation Subcommittee, along with 28 cosponsors, the Airline Safety and Pilot Training Improvement Act of 2009 (H.R. 3371) would, among other things, raise the minimum flight hours requirement for obtaining a commercial pilot’s license, implement measures to address pilot fatigue, and establish better pilot screening methods.

According to a press release issued by Rep. Costello, key provisions of the bill include:

• Requiring airline pilots to hold a Federal Aviation Administration (FAA) Airline Transport Pilot license (1,500 minimum flight hours required). This is an increase from the prior 250-minimum hour requirement.
• Establishing comprehensive pre-employment screening of prospective pilots that would include an assessment of a pilot’s skills, aptitudes, airmanship and suitability for functioning in the airline’s operational environment.
• Requiring airlines to establish pilot mentoring programs, create Pilot Professional Development Committees, modify training to accommodate new-hire pilots with different levels and types of flight experience, and provide leadership and command training to pilots in command.
• Creating a Pilot Records Database to provide airlines with fast, electronic access to a pilot’s comprehensive record. Information would include pilot’s licenses, aircraft ratings, check rides, Notices of Disapproval and other flight proficiency tests.
• Directing the FAA to update and implement a new pilot flight and duty time rule and fatigue risk management plans to more adequately track scientific research in the field of fatigue.
• Requiring air carriers to create fatigue risk management systems approved by the FAA.
• Requiring the FAA to ensure that pilots are trained on stall recovery and upset recovery, and that airlines provide remedial training on such maneuvers.
   

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A bill that would provide shareholders of public companies with an advisory vote on executive compensation and golden parachutes and that has additional special provisions regarding incentive compensation and risk management applicable to certain financial institutions has been given the green light to move to the House floor. The House Committee on Financial Services voted 40-28 on Tuesday to advance the Corporate and Financial Institution Compensation Fairness Act of 2009 (H.R. 3269).  In addition to providing shareholders of public companies with the ability to vote their approval of such executive compensation packages, this legislation requires members of public company compensation committees to be independent, and establishes an ability for the compensation committee to engage the services of independent consultants and counsel. Separately, in sections affecting financial institutions, this bill would require reporting of incentive compensation and its relationship to risk management and would authorize regulators of such institutions to prohibit compensation structures that encourage inappropriate risks. 

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After a lengthy public comment period and legal challenges, a U.S. Department of Transportation (DOT) drug testing regulation requiring employees of aviation, railroad, motor carrier, mass transit, pipeline and maritime industries who previously failed a drug test to partially disrobe and be directly observed during return-to-work and follow-up tests will go into effect August 31, 2009.  Continue reading at Littler's Workplace Privacy Counsel blog. 

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On Tuesday President Obama announced his intent to nominate David Michaels as the assistant secretary of the Occupational Safety and Health Administration (OSHA). Michaels, an epidemiologist, is currently a research professor at the Department of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services, where he also directs the Department’s doctoral program.

Prior to working at George Washington University, Michaels was nominated by former President Clinton to serve as Assistant Secretary of Energy for Environment, Safety and Health. His responsibilities included protecting the health and safety of workers, neighboring communities and the environment surrounding the nation’s nuclear weapons facilities. In that position, according to his biography posted on George Washington University’s website, Michaels “was the chief architect of the historic initiative to compensate workers in the nuclear weapons complex who developed cancer or lung disease as a result of exposure to radiation, beryllium and other hazards. Since its enactment in 2000, The Energy Employees Occupational Illness Compensation Program has provided more than $4.5 billion in benefits to sick workers and their families.” In addition, Michaels oversaw the promulgation of the Chronic Beryllium Disease Prevention and Nuclear Safety Management rules.

Michaels has written a book and a number of articles on workplace safety standards and contaminants, including Doubt is Their Product: How Industry's Assault on Science Threatens Your Health, Selected Science: An Industry Campaign To Undermine An OSHA Hexavalent Chromium Standard, Scientific Evidence and the Regulatory System: Manufacturing Uncertainty and the Demise of the Formal Regulatory System (pdf), Beryllium's Public Relations Problem: Protecting Workers When There Is No Safe Exposure Level (pdf), and Manufacturing Uncertainty: Contested Science And The Protection Of The Public's Health And Environment (pdf).

Michaels earned his undergraduate degree in History at the City College of New York, and his Master of Public Health degree in Epidemiology and doctoral degree in Sociomedical Sciences at Columbia University.

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Even though the highly controversial Employee Free Choice Act (EFCA) has lost support and one of its main components – card check recognition – reportedly is on the verge of being eliminated, the State of Hawaii has chosen another path and has enacted a bill resembling the EFCA in almost every respect. On July 15, the state overrode Governor Linda Lingle’s veto and passed House Bill 952, a measure that amends the Hawaii Employment Relations Act (HERA) by allowing the state’s Labor Relations Board to certify the results of a representation election based on a majority of signed authorization cards, mandates arbitration in the event a first contract is not reached within a specified period of time, and imposes civil penalties for unfair labor practices. While this bill is more limited in scope than the federal EFCA (H.R. 1409, S. 560) due to the fact that it only impacts certain employers, mainly agricultural with an annual revenue over a certain threshold, it will surely impact a number of private-sector as well as possibly Hawaii state employers that are not covered by the National Labor Relations Act. In addition, organized labor will no doubt use Hawaii as an example to push for the enactment of similar measures in other states.

Employees covered by this measure will be able to bypass a secret ballot union representation election if the state’s Labor Board determines that a majority of employees have signed valid authorization cards in favor of representation. After a union is certified and issues a request to collectively bargain, the Hawaii employer must commence bargaining with 10 days. If after 90 days the parties remain at an impasse, either may request conciliation. If after an additional 20 days (30 under the proposed federal EFCA) the parties still cannot reach an agreement, the matter will be referred to an arbitrator whose decision is binding for two years. The Hawaii mini-EFCA also imposes fines of up to $10,000 per unfair labor practice that is committed willfully or repeatedly. It is becoming clear that Congress will not follow Hawaii’s lead and is already moving away from consideration of the card check provisions of EFCA. However, for organized labor and certain employers in Hawaii, labor relations is entering a whole new era.

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The Senate on Friday confirmed by voice vote the nomination of Harry Hoglander to be a Member of the National Mediation Board (NMB). The three-member NMB is the independent federal 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 and member of the Florida Bar Association who worked as a legislative specialist for Rep. John Tierney (D-Mass.) on matters concerning transportation, labor, defense and veterans affairs. Hoglander’s term is set to expire on July 1, 2011.
 

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Legislation introduced by Reps. George Miller (D-CA) and Lynn Woolsey (D-CA) would freeze the statute of limitations for the recovery of backpay under the Fair Labor Standards Act (FLSA) from the date an employer is notified of an investigation by the Department of Labor’s (DOL) Wage and Hour Divisions (WHD) until the date the Agency informs the employer that the investigation is complete. The Wage Theft Prevention Act (H.R. 3303) was drafted in response to the newly-released Government Accountability Office (GAO) Report (pdf) to the House Committee on Education and Labor on ways to reduce wage theft.  The Report recommended, among other things, that the Department of Labor (DOL) needed to improve its investigative process and suspend the statute of limitations to protect workers against the loss of pay while wage and hour investigations are ongoing. This GAO Report was released as a follow-up to an undercover investigation into the WHD’s handling of employee complaints from July 2008 to March 2009. According to a press release, the GAO report found that many wage and hour investigations were inadequately handled and eventually dropped because the statute of limitations was deemed too short and investigations too long. Currently, the statute of limitations for recovery of back wages under the FLSA is 2 years from the date of the violation, or 3 years in the event of a willful violation. According to Miller, “[t]his bill will hold those responsible for stealing workers’ wages by helping to ensure that legitimate complaints can be properly investigated.”

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A recent order issued by the National Labor Relations Board (NLRB or Board) may herald the agency’s handling of other petitions seeking to resolve questions of union representation brought about by the UNITE HERE / Workers United split. The Board’s Order, issued July 21, 2009, affirmed the Regional Director’s decision issued July 12 dismissing the employer’s petition. Although the Board’s apparent adoption of a unified response to petitions filed in the wake of the UNITE HERE / Workers United split may provide some guidance as to how the Board will address these questions in the future, its chosen course of action avoids any discussion of whether a schism in the union occurred, and should lay the groundwork for potential federal court challenges.

In the case at issue, the employer, Royal Laundry, was faced with competing claims by UNITE HERE and the Western States Regional Joint Board (WSRJB) to represent its employees. Each union claimed to be the legitimate union representative of the bargaining unit. Prior to this, the employees had been members of Local 75 of UNITE HERE, but their executive board chose to endorse a petition to disaffiliate from UNITE HERE and join other Joint Boards and Locals to form a new union, Workers United. In the process, the local’s executive board retained its shop stewards and Joint Board staff representatives.

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Senator Roland Burris (D-IL) has introduced a bill that would extend temporarily the 18-month period of healthcare continuation coverage required by the Consolidated Omnibus Budget Reconciliation Act (COBRA). The COBRA Coverage Extension Act of 2009 (S. 1488) would provide up to 24 months of continuation coverage under group health plans required under COBRA, the law that amended the Employee Retirement Income Security Act (ERISA), the Internal Revenue Code and the Public Health Service Act to provide continuation of group health coverage for certain qualifying former employees, retirees, spouses, former spouses and dependent children. Specifically, S. 1488 would entitle any individual who is eligible for and has elected continuation coverage under COBRA as of the date of this bill’s enactment, and whose coverage would end before 12 calendar months had elapsed from the date of enactment due to an 18-month continuation limitation, to continue coverage until a full 12 months had passed after the date of enactment, or 24 months after the date of the qualifying COBRA event, whichever is earlier. This bill has been referred to the Senate Committee on Health, Education, Labor, and Pensions.

This bill joins another recent measure aimed at extending COBRA continuation coverage. The House’s much-publicized healthcare bill, America's Affordable Health Choices Act of 2009 (H.R. 3200), includes an amendment that would extend COBRA coverage until the individual becomes covered under another employer’s group health plan or under a health insurance exchange plan, the latter of which would be created under the bill itself. The extension would not apply to certain medical flexible spending arrangements. Offered by Rep. Susan Davis (D-CA), this amendment was approved by voice vote by the House Committee on Education and Labor on July 17. Given the development of the health insurance exchange system would not be established until the year 2013 at the earliest, it is conceivable that if this bill were to pass, COBRA continuation coverage could be extended for years. This healthcare bill has been approved by both the House Committees on Education and Labor, and Ways and Means.

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Last week the Equal Employment Opportunity Commission (EEOC) issued a technical assistance document outlining an employee’s rights and obligations when presented with a severance package in exchange for a waiver of employment discrimination claims. The document, Understanding Waivers of Discrimination Claims in Employee Severance Agreements, explains in a question and answer format when a waiver of rights under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA) would be deemed valid. The document places special emphasis on waivers of rights under the ADEA by clarifying the seven factors that must be satisfied under the Older Workers Benefit Protection Act (OWBPA) for an ADEA waiver to be considered “knowing and voluntary.” The document also presents a checklist for employees in the event they are offered a severance agreement and a sample waiver form.

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On July 24, 2009, the federal minimum wage will increase from $6.55 per hour to $7.25 per hour.  This increase is the third and final increase in a three phase process. In light of the impending increase, there are several issues of which employers must be aware to prepare for the change  Continue reading at Littler's Wage and Hour Counsel blog.

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In an attempt to save the Employee Free Choice Act (EFCA) from filibuster and potential failure, a handful of Democratic Senators have reportedly agreed to remove the highly contentious “card check” from the current version of the bill (H.R. 1409, S. 560).  According to an article published in The New York Times, the card check provision would be replaced by a shorter campaign period prior to an election, but other controversial EFCA measures would remain. Specifically, the article notes that expected EFCA revisions would require union elections to be held in as few as 5 or 10 days after 30 percent of workers sign authorization cards favoring union representation. In addition, lawmakers are reportedly considering provisions allowing union organizers to access company property during an organizing campaign, and preventing employers from requiring employees to attend employer-conducted information sessions often dubbed “captive audience” meetings. Since a revised EFCA bill has not yet been unveiled (much less negotiated or challenged), it is uncertain at this point which of these conditions, if any, will be included.

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President Obama has announced his intent to nominate Jacqueline Berrien as Chair of the Equal Employment Opportunity Commission (EEOC). Berrien currently serves as Associate Director-Counsel of the NAACP Legal Defense and Educational Fund (LDF). According to the White House press release on her nomination, Berrien worked as a Program Officer in the Ford Foundation’s Peace and Social Justice Program from 2001 to 2004. Before that, Berrien was an assistant counsel with LDF and directed the Fund’s voting rights and political participation work. According to biographical information provided by the NAACP, as assistant counsel Berrien represented African-American voters in proceedings before the U.S. Supreme Court, the U.S. Courts of Appeals and the U.S. District Courts. Prior to working for the LDF, Berriern was a staff attorney with the Lawyers' Committee for Civil Rights and the American Civil Liberties Union. Additionally, Berrien has taught in trial advocacy programs at Fordham and Harvard law schools and served on the adjunct faculty of New York Law School. After graduating law school, Berrien clerked for the Honorable U.W. Clemon, the first African-American appointed to the U.S. District Court in Birmingham, Alabama.

Berrien earned her law degree from Harvard Law School, where she served as a General Editor of the Harvard Civil Rights-Civil Liberties Law Review, and received her undergraduate degree from Oberlin College.

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On Tuesday, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) published in the Federal Register (pdf) a proposed rule implementing President Obama’s Executive Order (EO) encouraging the use of Project Labor Agreements (PLAs). Issued on February 6 of this year, EO 13502: Use of Project Labor Agreements for Federal Construction Projects (pdf) declares it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .” Specifically, this EO states:

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Rep. Lynn Woolsey (D-CA) has introduced the Balancing Act of 2009 (H.R. 3047), a bill aimed at working families that combines a number of provisions from previously-introduced family and medical leave legislation. In addition to addressing issues such as childcare and medical need assistance, this bill would, among other things, amend the Family and Medical Leave Act (FMLA) to provide for paid time off to care for a new baby or sick family member, provide paid sick leave, and allow employees to take time off to attend their children’s school or extracurricular activities, attend to the needs of elderly family members, receive routine medical care, as well as address issues related to domestic violence or sexual assault. The bill also includes a business child care incentive grant program in addition to a section promoting teleworking.

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Chairmen of the House Committees on Education and Labor, Ways and Means, and Energy and Commerce finally unveiled the House Democrats’ massive 1,018 healthcare reform bill on Tuesday. The much-anticipated America’s Affordable Health Choices Act (H.R. 3200) (pdf) was introduced following a number of delays caused, in part, by concern over many of the bill’s more controversial provisions, such as the public health insurance option and employer mandates. These contentious provisions remain in the final bill, albeit with some greater leeway for small employers.

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Last week Senator Ron Wyden (D-Ore.) introduced the Military Family Leave Act of 2009 (S. 1441), a bill that would grant military family members temporary annual leave for the member's deployment. Specifically, the legislation would allow the spouse, child or parent of a member of the uniformed services to take up to two weeks of annual leave from his or her job if the service member receives notice of an impending call or order to active duty in support of a contingency operation, or is deployed in connection with a contingency operation. This leave could be taken intermittently or on a reduced leave schedule. The employee would be entitled to two workweeks of leave for each military family member called to active duty. The employee could elect – but the employer could not insist upon – the substitution of accrued paid time off for the leave provided for under this legislation. An employer may require, however, that certification to support the family member’s military situation be provided in a timely manner.

This bill also prevents an employer from terminating or otherwise discriminating against an employee who takes such military family leave, and compels the reinstatement of the employee to his or her position (or an equivalent one) without loss of benefits upon returning to work.

This bill, which adds a new chapter to Part III of title 38 of the U.S. Code, has been referred to the Senate Committee on Health, Education, Labor and Pensions.

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Last week Senator Patty Murray (D-WA) introduced legislation that would close a Family and Medical Leave (FMLA) loophole for airline pilots and flight attendants. The Airline Flight Crew Technical Corrections Act (S. 1422) would change the hours of service requirements to enable more airline industry employees to take FMLA leave. On February 9 of this year, the House passed by voice vote a nearly identical bill (H.R. 912).

As the law currently stands, employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months and for at least 1,250 hours during the previous 12 months, which amounts to at least 60 percent of a standard 40-hour workweek. This method of calculation impacts employees in the airline industry, whose time spent on the job between flights or on mandatory standby does not count as “hours worked” under the Fair Labor Standards Act (FLSA), which the courts use to determine the requisite number of hours for FMLA purposes. This bill would clarify that the hours pilots or flight attendants work or for which they are paid – not just those spent in flight – count toward the minimum hours calculation. Specifically, an airline flight crew member would be eligible to take FMLA leave if he or she had worked or been paid for 60 percent of the applicable monthly guarantee, or the equivalent amount annualized over the preceding 12-month period, and if he or she had worked or been paid for at least 504 hours during the previous 12-month period.

This bill, which is co-sponsored by Senators Chris Dodd (D-CT), Kit Bond (R-MO), Susan Collins (R-ME), Lisa Murkowski (R-AK), and Jim Webb (D-VA), has been referred to the Senate Committee on Health, Education, Labor and Pensions.

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Last week the Senate voted to accept an amendment (S. AMDT. 1375) to the Department of Homeland Security’s (DHS) Appropriations Bill (H.R. 2892) that would prevent the DHS from revoking its “No-Match” Rule. This rule – which was blocked by court order and never implemented – established procedures that employers could follow in the event they receive notices from the Social Security Administration (SSA) or DHS informing them that their employees’ names and Social Security numbers listed on W-2 earnings reports do not match SSA records. According to Sen. David Vitter (R-La.), who introduced the amendment at issue, the No-Match rule “provided clear guidance on the appropriate responsibility of the employer, the appropriate due diligence the employer should undertake if they receive a letter from the Social Security Administration informing them there is not a proper match under those records,” and is therefore necessary to address illegal employment and clarify an employer’s responsibility in the event they are put on notice that they might be employing an illegal alien.

The DHS, on the other hand, has faulted this process on the grounds that the No-Match letters are sent months or even a year after the information is initially provided. In addition, according to the DHS, identification information is often called into question due to typographical errors or unreported name changes. On July 8, the DHS announced its intent to rescind the 2007 rule, and instead support E-Verify, which the agency claims will result in more timely and accurate No-Match letters.

Sen. Vitter’s amendment would essentially block the DHS from acting on this rule by prohibiting funds provided in the appropriations bill from being used to rescind the regulation. The amendment would also prevent further delays in implementing the no-match rule, which has been blocked by litigation filed by both organized labor and business groups.
 

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On July 10, the Office of Management and Budget (OMB) sent a memorandum (pdf) to the heads of executive departments and agencies encouraging the use of Project Labor Agreements (PLAs) until a final rule implementing President Obama’s Executive Order on this subject is implemented. On February 6 of this year, Obama issued Executive Order (EO) 13502: Use of Project Labor Agreements for Federal Construction Projects (pdf), which declared it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .” Specifically, the EO stated, in pertinent part:

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President Obama has announced his nomination of Brian E. Hayes, Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), to be a Member of the National Labor Relations Board (NLRB or Board). If confirmed, Hayes would join current member Peter Schaumber as the second Republican to serve on the five-member Board. 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 opposing party. In April, Obama named Democrats Craig Becker and Mark Pearce as his other picks to fill the three vacant seats. Current NLRB Chairman Wilma Liebman is also a Democrat. On July 9, the White House sent the nominations of Becker, Pearce and Hayes to the Senate for confirmation.

According to information provided by the White House announcement, before serving as a Senate staffer, Hayes worked for 25 years in private practice as a management-side labor and employment attorney. Prior to entering the private sector, Hayes clerked for the Chief Judge of the National Labor Relations Board and then as Counsel to the Chairman of the NLRB. While working in private practice, Hayes taught classes in Labor Law, Collective Bargaining, Arbitration and Employment Litigation at Western New England Law School. Has earned his undergraduate degree at Boston College and his law degree from Georgetown University Law Center.

It is not yet clear when confirmation proceedings will occur, or whether the three pending nominees will be considered as a package or individually.

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The Employment Standards Administration (or “ESA” in DOL-speak) is not well-known outside the Beltway and the community of wage and hour practitioners. ESA is an umbrella organization responsible for management and oversight of four subordinate agencies:

• The Wage and Hour Division (“WHD”)
• The Office of Federal Contract Compliance Programs (“OFCCP”)
• The Office of Labor-Management Standards (“OLMS”), and
• The Office of Workers' Compensation Programs (“OWCP”)

The Assistant Secretary of ESA and the Administrator of the Wage and Hour Division are both positions whose incumbents must be nominated by the President and confirmed by the Senate. The Directors of the OFCCP, OLMS and OWCP are appointed by the Secretary of Labor.

On July 8, 2009, Acting Assistant Secretary of ESA, Shelby Hallmark, announced that the ESA will be abolished in November, with the leaders of the four agencies – WHD, OFCCP, OLMS and OWCP reporting directly to the Secretary of Labor.  Continue reading at Littler's Wage & Hour Counsel blog.

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Yesterday, the Senate approved by voice vote an amendment (S. AMDT. 1371) to the Department of Homeland Security (DHS) appropriations bill (H.R. 2892) that would make the E-Verify program permanent. Currently a voluntary initiative, E-Verify is an Internet based system operated by DHS in partnership with the Social Security Administration (SSA) that allows employers to electronically verify the employment eligibility of potential and current employees. The amendment – introduced by Sen. Jeff Sessions (R-Ala.) – requires that all government contractors who do work for the federal government use E-Verify to screen their potential hires. Following introduction of the amendment, Sen. Charles Schumer (D-NY) criticized the E-Verify program, saying that it is a flawed system that “creates havoc for both employers and employees.” Because, Schumer alleged, identification can be easily faked using stolen Social Security numbers, employers who accept documentation on good faith have no guarantees under the current system that they won’t be targeted by Immigration and Customs Enforcement (ICE) for hiring illegal aliens. Schumer has been a strong proponent of a biometric-based federal employment verification system. Schumer’s motion to table Sen. Sessions’ amendment was rejected by a vote of 53-44. The House of Representatives’ version of the DHS appropriations bill had included a 2-year extension of E-Verify, so it is uncertain at this point whether a limited or permanent E-Verify extension will be approved in the final appropriations bill.

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Rep. Paul Hodes (D-NH) this week introduced the Small Business Health Care Affordability Act of 2009 (H.R. 3115), a bill that would provide small businesses and their employees with tax credits for health insurance coverage. According to the terms of this legislation, employers with 50 or fewer employees would be entitled to a an annual tax credit of up to $1,000 per employee for providing individual health insurance coverage, and up to $2,250 annually for providing family coverage. The plan would also provide healthcare premium assistance for small business employees and their dependents.

This legislation has been referred to the House Committee on Ways and Means. If enacted, the provisions of this bill would apply to taxable years beginning after December 31, 2009.

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On July 1, U.S. Immigration and Customs Enforcement (ICE) initiated a significant new audit initiative by issuing Notices of Inspection (“NOIs”) to 652 businesses, which is more in one day than ICE issued throughout the entire last fiscal year.  Continue reading at Littler's Global Immigration Counsel blog.

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As we predicted, Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, has announced that he intends to hold a hearing regarding the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, which was issued on June 18.  In Gross, the Court 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. An employer does not have to prove 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 Court decided, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.

Although a positive ruling for employers, Miller criticized this decision in a press release, stating: “The Supreme Court’s ruling will make it even more difficult for workers to stand up for their basic rights in the workplace. A narrow majority of the Supreme Court has once again overturned decades of precedent and congressional intent and sided with powerful corporate interests on a workplace discrimination case.” He further warned that “[l]ike with the Lilly Ledbetter case, Congress may be forced to clarify the law’s intent so we can prevent the damage this decision will have on workers’ civil rights.” The Lilly Ledbetter Fair Pay Act – which was signed into law in January – expressly overturned the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. by extending the time period in which employees can assert pay discrimination claims. Therefore, expect the introduction of legislation aiming to amend the ADEA to effectively nullify the Gross opinion, and make it easier for a plaintiff to bring successful disparate impact age discrimination claims against employers.

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On Monday, President Obama announced his intent to nominate George H. Cohen to serve as the director of the Federal Mediation and Conciliation Service (FMCS), the independent federal agency charged with, among other things, handling the arbitration and mediation of labor disputes and contract negotiations. If the Employee Free Choice Act passes with its current first contract interest arbitration provisions intact, Cohen presumably would be charged with implementing those provisions as well.

According to biographical information published by the Peggy Browning Fund, a nonprofit corporation dedicated to educating law students and providing work experience in the area of workers' rights, Cohen practiced for 40 years as a well-respected union-side labor lawyer. During this period, he argued five cases before the U.S. Supreme Court involving matters ranging from collective bargaining to workplace safety.

Before being named as Obama’s pick for FMCS Director, Cohen worked as a mediator, and currently is a member of the Mediation Panel of the U.S. Circuit Court of Appeals for the D.C. Circuit. Prior to working in the private sector, Cohen served as an attorney advisor and appellate attorney for the National Labor Relations Board, and – according to the aforementioned bio – is credited with “help[ing] shape the progressive, union and worker friendly agenda of the ‘Kennedy Board.’” Cohen has also served as the Union Co-Chair of the first American Bar Association (ABA) Committee on Sports and Entertainment Law and the first ABA Committee on the Occupational Safety and Health Law. Additionally, Cohen has taught the Art of Collective Bargaining among other labor-related courses as an adjunct professor at Georgetown Law School.

Cohen received his undergraduate and law degrees from Cornell University and its Law School, and an LLM degree from Georgetown Law.

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