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

Senator Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, announced on Tuesday that his committee will hold a hearing to examine two U.S. Supreme Court decisions that benefit employers. The hearing, “Workplace Fairness: Has the Supreme Court Been Misinterpreting Laws Designed to Protect American Workers from Discrimination,” will undertake a review of the Court’s 2001 decision in Circuit City Stores v. Adams, which extended the scope of the Federal Arbitration Act (FAA) to cover employment contracts, and thus sanctioned certain mandatory pre-dispute arbitration agreements, and the more recent opinion in Gross v. FBL Financial Services, Inc. (pdf), which toughened an employee’s burden of proof in bringing a mixed-motive discrimination claim under the Age Discrimination in Employment Act (ADEA). 

Among the witnesses scheduled to testify at the October 7 hearing is the plaintiff in Gross v. FBL Financials Services, Inc. The Court in this case held that a plaintiff bringing an ADEA claim must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. Unlike in Title VII discrimination cases, an employer does not need to prove that it would have made the same decision regardless of age, even if the employee were to produce some evidence that age may have been a contributing factor in the decision. In July, Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, criticized this decision and also called for a committee hearing to examine its repercussions. Both Miller and Leahy have likened Gross to Lilly Ledbetter v. Goodyear Tire, a pay discrimination case that was subsequently overruled by the Lilly Ledbetter Fair Pay Act, signed into law earlier this year. Following next week’s hearing, it is possible that legislation to overturn the Supreme Court’s opinion in Gross will be introduced. Bills aimed at invalidating mandatory, predispute arbitration agreements validated by the Circuit City decision have already been introduced this session, but have thus far received little attention.

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The Department of Justice (DOJ) has awarded $723,000 in grants to various groups nationwide to help combat immigration-related employment discrimination. These grants, administered by the DOJ’s Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), will range from $48,000 to $87,000 for each of the 12 named recipients. According to a press release, these funds will be used to assist discrimination victims; conduct seminars for workers, employers and immigration service providers; distribute educational materials in various languages; and place advertisements in local communities through both mainstream and ethnic media to educate workers and employers about their rights.

In a statement, Loretta King, Acting Assistant Attorney General for the Civil Rights Division, said: “[a]warding grants to professional and community-based organizations better enables us to educate workers and employers about their rights and responsibilities under federal immigration law,” adding, “[o]ur grant recipients, who are well known and respected in their communities, will collaborate with us to prevent immigration-related discrimination in the workplace.”

The twelve groups slated to receive DOJ funding for the immigration-related anti-discrimination initiative are: the Arizona Attorney General’s Office, Civil Rights Division; Asian Pacific American Legal Center of Southern California; Catholic Charities of Dallas; Catholic Charities, Diocese of St. Petersburg, Fla.; Colorado Legal Services; Legal Aid Foundation of Los Angeles (LAFLA); National Farm Worker Service Center; National Immigration Law Center (NILC); New York City Human Rights Commission; Texas RioGrande Legal Aid; University of Iowa; and the Washington Farm Labor Association.

Earlier this month, U.S. Attorney General Eric Holder revealed that with the increased 2010 fiscal year DOJ budget, the agency intended to substantially enlarge the Civil Rights Division and improve enforcement of antidiscrimination laws.

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The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) (P.L. 110-343) (pdf) and Michelle’s Law (P.L. 110-381) (pdf), two laws that impact employer-sponsored group health plans, will take effect for plan years beginning on or after October 3, 2009 and October 9, 2009, respectively.  Calendar year plans have until January 1, 2010 to comply with both laws. 

The MHPAEA requires private group health benefit plans that provide mental health and/or substance use disorder benefits to offer them on a basis equivalent to the medical and surgical benefits provided.  In order to ensure coverage parity, the act imposes several plan design requirements upon group health benefit plans that offer mental health and/or substance use disorder benefits. The bill exempts certain small group health benefit plans and those that would incur a particular level of increased costs for all benefits due to compliance with the parity rule. These exemptions are specific and narrow.

Michelle’s Law similarly imposes certain coverage requirements on group health benefit plans. In essence, this law extends the health plan benefits coverage to a dependent child who is over the age of 18 and enrolled in college and would otherwise lose coverage in the event a medically necessary leave of absence would cause the child to lose full-time student status.

For more information on these laws, see Littler’s ASAPs: Equal Mental Health and Substance Use Benefits Realized by Russell D. Chapman and Andrea Jackson; and Michelle's Law Extends Group Health Benefit Plan Eligibility for Dependent Students on a Medically Necessary Leave of Absence by Steven J. Friedman and Andrea Jackson.

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As expected, Massachusetts Gov. Deval Patrick has named Paul Kirk as the late Sen. Ted Kennedy’s replacement. On Tuesday, the Massachusetts State Senate passed a bill allowing the Governor to name an interim senator until January 19, 2010, when an election for a permanent replacement will be held.

Kennedy’s family allegedly lobbied for Kirk – who is a family friend and former Kennedy staff member – to be selected for the temporary Senate seat. Kirk served as an aide to Sen. Kennedy from 1969 until 1977, and currently is the chairman of the board of directors of the John F. Kennedy Library Foundation. In addition, Kirk is a former chairman of the Democratic National Committee. The close relationship that Kennedy and Kirk shared makes it more likely that Kirk will vote in line with Kennedy’s political beliefs and philosophy.

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The Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) has posted to its website three technical assistance documents for contractors. These guides do not create any new legal requirements, but rather are intended to serve as basic resources for contractors and subcontractors that are subject to laws enforced by the agency.

An updated version of the Technical Assistance Guide for Federal Construction Contractors (pdf) is intended only for government contractors who have construction contracts or subcontracts, including contractors who have federally assisted construction contracts. According to the OFCCP, this document is designed to help these contractors and subcontractors understand their contractual obligation to comply with the laws administered by OFCCP; understand the role of the OFCCP in enforcing federal equal employment opportunity and affirmative action laws that apply to federal contractors and subcontractors; develop written affirmative action programs where appropriate; implement the affirmative action steps that are described in the Standard Federal Equal Employment Specifications; and prepare for an OFCCP compliance evaluation.

A second guide is designed for non-construction contractors and subcontractors who are nonetheless subject to laws enforced by the OFCCP. Such entities include subcontractors who furnish supplies or services that are necessary to perform a federal contract. The Supply & Service Technical Assistance Guide (pdf) provides information on these supply and service contractors’ obligations to comply with OFCCP-enforced nondiscrimination and affirmative action laws, and discusses how to development written affirmative action plans and to prepare for a compliance evaluation.

The final compliance document now available online is a New Contractors’ Guide (pdf). According to the OFCCP, this guide is intended “to introduce new contractors to their EEO obligations, the enforcement process, and the array of resources OFCCP offers to assist contractors in meeting their obligations.”
 

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On Tuesday the Massachusetts State Senate passed a measure that will allow Democratic Governor Deval Patrick to appoint an interim senator to fill the late Sen. Ted Kennedy’s seat. Although no successor has been named at this point, an article in The New York Times says that Paul G. Kirk Jr., a former Kennedy aide and chairman of the Democratic National Committee, is a leading candidate. Former Massachusetts governor and presidential nominee Michael Dukakis has also been suggested as a potential choice.

Filling Kennedy’s seat with a person with whom he held close ties and/or political philosophy makes it more likely that this replacement will share Kennedy’s views on health care and labor legislation, including the Employee Free Choice Act (EFCA). Such an appointment would once again give the Democrats a 60 vote majority in the Senate which may enable them to ward off a potential filibuster on these contentious bills, if the bills can be reconstructed to overcome the misgivings of moderate and conservative Democrats who have yet to commit to their passage. These 60 votes may be illusory, however, as Sen. Robert Byrd (D-W.Va.) continues to suffer from health issues that have kept him away from the Capitol, unless at least one Republican member can be convinced to side with the Democrats on either EFCA or health care reform.
 

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The Equal Employment Opportunity Commission (EEOC) has published in today’s Federal Register (pdf) its proposed revisions to the Americans with Disabilities Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008 (ADAAA). Last week, the EEOC published on its website a question and answer guide regarding these proposed rules.

Effective January 1 of this year, the ADAAA rejected a line of U.S. Supreme Court decisions that narrowed the definition of “disability” under the ADA. The ADAAA significantly expands the scope of ADA coverage, enabling more individuals alleging disability-based employment discrimination to establish that they are disabled under the ADA. To that end, Congress directed the EEOC to revise its ADA regulations to comply with the ADAAA.

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The House of Representatives approved by a vote of 331 to 83 the Unemployment Compensation Extension Act of 2009 (H.R. 3548), a bill that would extend unemployment benefits for 13 weeks in states with high persistent unemployment (8.5% on a rolling three-month average). To pay for this measure, the bill extends for one year a federal unemployment tax (FUTA surtax) that is set to expire at the end of 2009, and has been in place for more than 30 years. This tax requires businesses to pay an annual tax of $14 per worker. The bill would also require that current reporting on newly hired employees include the date work begins to reduce overpayment of UI benefits. In July, Rep. Jim McDermott (D-Wash.), who introduced this legislation, introduced a more comprehensive unemployment insurance bill (H.R. 3404) that included the 13-week benefits extension. The shorter bill was introduced on September 10 as an emergency measure to address continuing high unemployment due to the economic downturn.

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The Equal Employment Opportunity Commission (EEOC) has published a question and answer guide addressing the proposed regulations drafted in response to the Americans with Disabilities Act (ADA) Amendments Act of 2008 (ADAAA). On Wednesday, the EEOC approved the notice of proposed rulemaking (NPRM) by a vote of 2-1 along party lines. Text of the proposed regulations is slated for publication in the Federal Register next week, to be followed by a 60-day public comment period.

The ADAAA, which went into effect on January 1, 2009, significantly expands the definition of “disability” under the ADA, allowing more individuals to fall under the ADA’s protection. Although the ADAAA, like the ADA, defines “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment, the ADAAA changes how each of these components of the definition should be interpreted. According to a Notice issued by the EEOC, the ADAAA:

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USCIS has released a “Supplemental Guide for Federal Contractors” (PDF) regarding the E-Verify program.  The guide contains information concerning:

• applicable regulations;
• instructions on verifying new and existing employees via Form I-9;
• E-Verify enrollment and participation as a federal contractor;
• exemptions and exceptions for qualifying contractors; subcontractors, independent contractors and affiliates;
• enrollment instructions for organizations that qualify for exceptions;
• enrollment instructions for contractors not yet enrolled in E-Verify; and
• instructions for contractors already enrolled in E-Verify.
   

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After much fanfare, Senator Max Baucus (D-Mont.), Chairman of the Senate Finance Committee, yesterday officially released the America’s Healthy Future Act (pdf) for his committee’s consideration. Although designed to appeal to conservatives in comparison to the House’s Affordable Health Choices Act (H.R. 3200) and a similar measure approved by the Senate Health, Education, Labor and Pensions (HELP) committee, it is uncertain whether Baucus’s bill will draw any Republican support, and enough to reach the 60 votes needed to avoid a filibuster.

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On Tuesday Sen. Arlen Specter (D-PA) released some long-awaited details of an amended version of the Employee Free Choice Act (EFCA) that he believes “will meet labor’s objectives” and garner sufficient Congressional support. Speaking before the AFL-CIO Constitutional Convention, Specter predicted that a re-vamped version of EFCA will be passed this year. As reported in The Washington Post, Specter outlined the provisions of this so-called “compromise” bill following the AFL-CIO convention. Notably, Specter said the amended bill omits the controversial “card check” provision that would have allowed the National Labor Relations Board (NLRB) to certify a union as the exclusive bargaining representative based on a majority of signed authorization cards. Instead, according to the Post article, the amended EFCA:

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On Monday President Obama announced his intent to nominate Chai Feldblum to serve as one of the five members of the Equal Employment Opportunity Commission (EEOC).  Yesterday, her nomination was sent to the Senate for confirmation. Feldblum is currently a professor at the Georgetown University Law Center, where she has taught since 1991. According to her faculty bio, Feldblum was instrumental in drafting and negotiating the Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008. She also helped draft and negotiate the Employment Nondiscrimination Act (ENDA) and various medical privacy bills and regulations. In addition, Feldblum is the Director of Georgetown Law Center’s Federal Legislation and Administrative Clinic, and is co-director of Workplace Flexibility 2010, an initiative aimed to advance a national policy on workplace flexibility. Feldblum has written a number of articles and books advocating disability and gay rights, and has on several occasions testified before Congress to promote the ADA Restoration Act of 2007, the ADA Amendments Act of 2008, and employment flexibility to benefit older workers, among other workplace issues.

Feldblum earned her undergraduate degree from Barnard College, and her law degree from Harvard Law School. Feldblum has clerked for Judge Frank M. Coffin on the First Circuit Court of Appeals and for Justice Harry A. Blackmun on the U.S. Supreme Court.

If confirmed by the Senate, Feldblum would be the third Democrat to sit on the EEOC panel. Acting Chairman Stuart Ishimaru and Acting Vice Chair Christine Griffin are both Democrats, while Commissioner Constance Barker is currently the lone Republican serving on the Commission. Republican Naomi Earp, who served as EEOC Chair during the Bush Administration, resigned in the Spring. In July, President Obama nominated Democrat Jacqueline Berrien to serve as the new EEOC Chair.  Acting Vice Chair Griffin – who has been confirmed to serve as the deputy director of the Office of Personnel Management – is allowed to remain on the Commission until a successor is approved.

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Labor Secretary Hilda Solis told attendees of the AFL-CIO Constitutional Convention in Pittsburgh today that she will work with the White House to “make the strongest case possible for the Employee Free Choice Act” and reiterated her position that the Department of Labor (DOL) “is once again back in the enforcement business.”  Her speech also outlined recent DOL enforcement efforts, and proposed regulations to reform the H-2A temporary agricultural worker program.

With respect to DOL enforcement, Solis announced that the agency is “adding nearly 670 additional investigators, inspectors, and other program staff, returning our worker protection efforts to a level not seen since 2001. So far, these resources has allowed the Wage and Hour Division to ensure that contractors on federal stimulus projects pay their workers the prevailing wage rates that they are entitled to.” Solis emphasized that worker safety is a chief concern, noting that since July, the Occupational Safety and Health Administration (OSHA) has completed 689 inspections and issued nearly 1,100 violations resulting in $1.6 million in fines.

Solis touched on immigration reform as well, explaining that the DOL is proposing to restructure the H-2A visa program. According to Solis, the proposed regulations “will reverse what I believe are unjust wage issues and working conditions for vulnerable U.S. and temporary foreign workers,” and “will ensure that before we import temporary workers to meet some labor shortages, U.S. workers have first dibs.”

As for the beleaguered Employee Free Choice Act (EFCA), Solis claimed that “it’s not enough to have fair wages and a safe workplace – workers also need a voice on the job!” To that end, Solis pledged to support EFCA, as well as the use of Project Labor Agreements for large federally funded projects.

President Obama is scheduled to speak at the AFL-CIO convention tomorrow.
 

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On Wednesday, Senate Majority Leader Harry Reid (D-Nev.) announced that Sen. Tom Harkin (D-Iowa) will replace the late Sen. Ted Kennedy (D-Mass.) as Chair of the influential Senate Committee on Health, Education, Labor and Pensions (HELP). In a statement, Harkin said of his succession:

Today I am honored to accept the chairmanship of the Senate HELP Committee. To serve in this capacity is to carry on the legacy of Senator Ted Kennedy, who dedicated his life to ensuring that our economy works for all Americans, guaranteeing every child the opportunity to pursue a quality education and, of course, the cause of his life: access to quality, affordable health care for all Americans. In this last endeavor, I expect to work closely with Senator Dodd, who has guided the HELP Committee so capably in reporting The Affordable Health Choice Act, and who will continue to play a leading role as health care legislation moves to the Senate floor.

Harkin is generally viewed as a close friend of Organized Labor. In addition to favoring healthcare reform, Harkin is a chief Senate sponsor of the Employee Free Choice Act (EFCA) (S. 560, H.R. 1470), and has been vocal in his continuing support for this measure and intent to bring it directly to the Senate floor. Harkin has been instrumental in pushing for a so-called “compromise” bill in an effort to woo back the support of Democratic Senators whose enthusiasm for the legislation has waned in recent months.

Harkin is also largely considered employee-friendly. In response to Harkin’s new leadership position, Rep. George Miller (D-Calif.), chairman of the House Committee on Education and Labor, said in a statement:  “Tom is a longtime friend and I can attest to his strong commitment to improve our nation’s schools, workplaces, and the quality of life for all working families."  Earlier this year, Harkin introduced the Fair Pay Act (S. 904, H.R. 2151), a bill that would amend the Fair Labor Standards Act (FLSA) by introducing the concept of equal pay for comparable – not equal – work.

Since legislation vital to Organized Labor – bills dealing with healthcare, labor, and pension issues must go through the HELP Committee to reach the Senate floor – the appointment increases the influence Harkin has with the Union movement, and in turn may well aid getting a compromise on EFCA through as well.
 

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Last Friday the Occupational Safety and Health Administration (OSHA) announced that its Site-Specific Targeting 2009 (SST) program (pdf) will focus its enforcement efforts on approximately 4,000 high-hazard worksites, including nursing homes and manufacturing establishments. The SST inspection program is based on injury and illness data from OSHA’s 2008 Data Initiative survey of 80,000 employers with 40 or more workers in industries with historically high occupational injury and illness rates. The agency uses this data to determine which work sites will receive comprehensive safety inspections.

According to a press release, this year’s SST program will not use one rate for all types of establishments, but rather will set minimum injury and illness rates for three separate categories of employers: manufacturing, non-manufacturing, and nursing homes. Doing so, the agency claims, will enable OSHA to inspect more facilities that exceed the minimum rate. In addition, some employers that did not respond to an OSHA Data Initiative survey will be automatically added to the inspection list. In a statement, acting Assistant Secretary of Labor for OSHA Jordan Barab said: “[t]hese inspections examine all aspects of a workplace's operations and the effectiveness of its safety and health efforts.”

The push for increased safety inspections is part of a larger enforcement trend within the Department of Labor (DOL). In June, Secretary of Labor Hilda Solis told attendees at the American Society of Safety Engineers’ annual conference: “Make no mistake about it: The Department of Labor is back in the enforcement business.” Jordan Barab similarly emphasized this sentiment, stating: “[t]he law says that employers are responsible for workplace safety and health, and there's a new sheriff in town to enforce the law."

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With the rejection of an 11th–hour appeal, a Maryland district court judge has permitted the new E-verify requirements for federal contractors to become effective September 8, 2009. Federal agencies are now permitted to require federal contractors to use E-Verify to confirm the work eligibility status of their employees. 

For more information, see Littler's ASAP:  Federal Contractors: Be Aware of New E-Verify Requirements in Contracts by Jorge R. Lopez, Joshua Roffman, Aimee Clark Todd and Russell C. Ford. 

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As reported by Daily Journal of Commerce, business groups have appealed the August 25 decision by a federal district court in Maryland upholding the E-Verify Federal Contractor Rule. As previously discussed, the rule is set to take effect on September 8, 2009. If government officials do not voluntarily postpone the effective date, lawyers for the business groups have indicated that they will ask the courts to do so.  Continue reading at Littler's Global Immigration Counsel blog.

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In a recent New York Times article, U.S. Attorney General Eric Holder, Jr. revealed that the Department of Justice (DOJ) intends to substantially increase the Civil Rights Division and enforcement of antidiscrimination laws. The Civil Rights Division prosecutes violations of criminal civil rights statutes and enforces federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, and national origin. Such laws enforced by this division include the Civil Rights Act, the Americans with Disabilities Act, and the Immigration Reform and Control Act.

According to the article, the fiscal year 2010 budget requests an increase of approximately $22 million for the Civil Rights Division, up 18 percent from the prior year. The Division seeks to hire more than 50 civil rights attorneys, a significant boost to this department.

The expansion of the Civil Rights Division and its enforcement efforts is part of a greater predicted trend for this administration. Budgets for the Department of Labor (DOL) and Equal Employment Opportunity Commission (EEOC) have similarly received substantial funding increases for fiscal year 2010. Labor Secretary Hilda Solis has emphasized that stepping up enforcement of workplace laws is a top priority, particularly for the Wage and Hour Division, Office of Federal Contract Compliance Programs (OFCCP), and the Occupational Safety and Health Administration (OSHA). For example, the Wage and Hour Division – the DOL sub-agency responsible for enforcing, among other laws, federal minimum wage, overtime, and child labor requirements of the Fair Labor Standards Act (FLSA) – is expected to hire more than 200 new compliance officers for this purpose. Therefore, employers can anticipate increased scrutiny from these agencies, and should take the necessary steps to comply with workplace laws before facing an agency audit or inspection.
 

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The US Citizenship and Immigration Services (USCIS) announced on August 27 that the expiration date of the current version of the I-9 (Employment Eligibility Verification) form has been extended for three years, until August 31, 2012. This means that employers can use I-9 forms that have a revision date of either February 2, 2009, or August 7, 2009.  Continue reading at Littler's Global Immigration Counsel blog. 

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