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

On Wednesday President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647), which includes provisions expanding military family leave entitlements. Specifically, the Act permits family of active duty members to take up to 12 weeks of job-protected leave in a 12-month period for a “qualifying exigency” arising out of the active duty or call to active duty status of a spouse, son, daughter or parent. A broad range of events and activities are considered qualifying exigencies, including short-notice deployment, child care and school activities, financial and legal arrangements, rest and recuperation, post-deployment activities, counseling, and military events and related activities. Prior to this Act, exigency leave was limited to family of Reserve and National Guard members only.

The Act also enables military caregivers to take up to six months (26 workweeks) of leave in a 12-month period to care for a covered service member or veteran with a serious service-related injury or illness. The Act now covers care for veterans up to five years after the service member leaves the military. This leave is not calculated using the calendar-year method. Rather, the caregiver may take this leave in a single 12-month period, which begins on the first day the employee takes leave and ends 12 months later.

For more information on these new leave entitlements, see Littler's ASAP: Congress Adds Additional Family Military Leave Entitlements to the FMLA by Mark T. Phillis.

 

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Rep. Joe Sestak (D-Pa.) has introduced a bill that would extend by six months the maximum COBRA continuation coverage period for individuals who were involuntarily terminated between April 1, 2009 and December 31, 2009, and amend the American Reinvestment and Recovery Act of 2009 (ARRA or “Economic Stimulus”) by extending the eligibility and maximum assistance periods for the 65 percent COBRA premium assistance available under ARRA. According to a press release, the Extended COBRA Continuation Protection Act of 2009 (H.R. 3930) would extend COBRA benefits in three ways. First, the bill would extend from 9 to 15 months the total allowable time an unemployed worker can receive COBRA premium assistance. Second, the bill extends this assistance to individuals who are involuntarily terminated between January 1 and June 30, 2010. Third, it would extend eligibility for traditional COBRA coverage an additional 6 months, from 18 to 24 months, for individuals terminated at the beginning of the economic recession in 2008. No extended COBRA premium assistance or extended COBRA benefits would extend beyond December 31, 2010.

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The Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) has issued new guidance in the form of 25 frequently asked questions (FAQs) to help plan administrators and service providers of group health and other welfare benefit plans comply with the expanded requirements for reporting service provider fees and other compensation on Schedule C of the 2009 Form 5500 Annual Return/Report of Employee Benefit Plan. The EBSA implemented these requirements – which are effective for plan years beginning on or after January 1, 2010 – as part of a final rule published on November 16, 2007.

According to an EBSA press release, issues covered by the FAQs include the reporting of gifts, entertainment and other non-monetary compensation; compensation to hedge fund investment managers; “look-through” investment funds; mutual fund redemption fees; and ERISA fee recapture accounts.

Earlier guidance on these reporting requirements was released in July 2008.

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The Senate on Tuesday voted 87-13 to proceed with consideration of the Unemployment Compensation Extension Act of 2009 (H.R. 3548), a bill that would, among other things, provide up to 14 additional weeks of unemployment benefits to individuals in all 50 states, and up to 20 additional weeks in states with rates of high, sustained unemployment. This legislation, which cleared the House of Representatives in September, has run into snags in the Senate. Democrats have accused Republicans of stalling passage by drafting amendments to the bill that have nothing to do with unemployment. Tuesday’s cloture vote effectively limits debate on the bill, and thus the consideration of the various amendments that have been proposed.

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Last week the Senate confirmed the nominations of Joseph A. Main to be the assistant labor secretary for the Department of Labor’s Mine Safety and Health Administration (MSHA), and William E. Spriggs to serve as the DOL’s assistant labor secretary for policy.

Main began his career as a coal miner in 1967, and soon after began working in various local union positions for the United Mine Workers of America (UMWA). According to a White House press release, Main started working for the UMWA’s safety division in 1976. Main was appointed Administrator of the UMWA’s Occupational Health and Safety department in 1982, and held that position for 22 years. In this capacity, Main testified in 2000 before the House of Representatives’ Sub-Committee on Workforce Protections, calling for increased MSHA inspections and scrutiny of worksites and mine operators, and improved health and safety standards to protect miners.

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Last Thursday President Obama announced has his intent to nominate P. David Lopez to serve as general counsel of the Equal Employment Opportunity Commission (EEOC). According to a White House press release, Lopez has worked at the EEOC for 13 years both in the field and at the agency’s headquarters. Lopez presently serves as a supervisory trial attorney with the EEOC’s Phoenix District Office. Prior to working for the EEOC, Lopez worked at the Civil Rights Division, Employment Litigation Section, at the U.S. Department of Justice from 1991 to 1994, and was an associate in a private law practice from 1988-1991. Lopez earned his law degree from Harvard Law School in 1988, and his undergraduate degree in Political Science from Arizona State University in 1985, magna cum laude.

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Seventy-seven bus and truck drivers are banned from operating commercial motor vehicles and 84 commercial carriers face enforcement charges as a result of the Department of Transportation’s (DOT) Federal Motor Carrier Safety Administration (FMCSA) first national drug and alcohol strike force. During a 10-day period in September, FMCSA safety investigators examined the drug and alcohol safety records of commercial drivers employed by bus companies, including school bus drivers, interstate passenger carriers, hazardous material transporters and general freight long-haul trucking companies. This enforcement action is the first time that the FMCSA has ever proactively looked for operators and drivers that violate the agency’s drug and alcohol regulations.

In a DOT press release, U.S. Transportation Secretary Ray LaHood said: “Violators of our drug and alcohol policies have no business driving a commercial vehicle. Programs like the drug and alcohol strike force are helping remove the most dangerous offenders from our roadways.” As a result of the strike force, the cited commercial drivers face civil penalties in addition to being prevented from operating commercial vehicles. The targeted employers are subject to charges that they unlawfully used a driver that has tested positive for illegal drugs and for not instituting a drug and alcohol program, among other violations. According to the FMCSA, among the goals of the strike force is to “identify motor carriers in violation of federal drug and alcohol testing requirements and to remove from the road commercial truck and bus drivers who jump from carrier to carrier to try and evade federal drug and alcohol testing and reporting requirements.”

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It appears that hope for easy passage of an amended unemployment insurance benefits extension bill introduced earlier this month has faded. The Unemployment Compensation Extension Act of 2009 (H.R. 3548), which would extend UI benefits in all 50 states, has run into opposition from Senate Republicans who have either introduced or plan to introduce a number of amendments in an alleged attempt to stall the legislative process.

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On Thursday, the Senate voted 68 to 29 to approve the conference report (pdf) to the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647), which contains provisions expanding Family and Medical Leave Act (FMLA) military family leave entitlements that were enacted as part of the Fiscal Year 2008 National Defense Authorization Act. These FMLA amendments allow eligible employees to take up to 12 weeks of job-protected leave in a 12-month period for any “qualifying exigency” arising out of the active duty or call to active duty status of a spouse, son, daughter or parent. In addition, eligible employees are permitted to take up to 26 weeks of job-protected leave in a “single 12-month period” to care for a covered servicemember with a serious injury or illness. The 2010 National Defense Authorization bill would allow family of active duty members in regular service to take advantage of exigency leave provided for by these FMLA amendments, as well as extend military caregiver leave to veterans. Current Department of Labor (DOL) regulations limit access to exigency leave to family of Reserve and National Guard members only, and do not permit family members to take leave to care for servicemembers once they have left the military, even though certain injuries and illnesses (such as traumatic brain injury and post traumatic stress disorder) may not manifest themselves until months or years after the injury occurs.

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On Tuesday the Senate approved by a vote of 79-19 the conference report for the Department of Homeland Security Appropriations bill (H.R. 2892) that includes provisions extending the E-Verify employment verification system and other visa programs. The House approved the conference report on October 15.

The bill will allocate $137 million to the E-Verify program – which is extended by three years under this bill – for its operation and improvement. In addition, the legislation extends the EB-5 investor visa program, which provides visas to individuals who invest at least $1 million in a new commercial enterprise which will benefit the U.S. economy and create at least 10 full-time jobs. The visa programs for religious workers and medical students are also extended by this legislation.

Notably, the Senate conference report dropped more stringent E-Verify provisions that the Senate had approved in July.  Those provisions would have made the E-Verify and EB-5 programs permanent, and allowed employers to verify the employment status of all employees.

The president is expected to sign the DHS appropriations bill into law.

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Despite a great deal of protest from several Republicans and the business community, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 15 to 8 to approve the nominations of Craig Becker, Mark Pearce, and Brian Hayes to be members of the National Labor Relations Board (NLRB). President Obama named Pearce and Becker, both Democrats and widely considered pro-labor, as nominees on April 24 of this year. Hayes, a Republican and Senate committee staff member, was selected on July 9. Now that these nominations have cleared the HELP committee, they will be sent to the Senate floor as a package for final approval.

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The Occupational Safety and Health Administration (OSHA) has published in today’s Federal Register an advance notice of proposed rulemaking (ANPRM) (pdf) calling for public comment, data, and other input to help the agency develop a standard to address the fire and explosion hazards associated with combustible dust. For the purposes of the ANPRM, “combustible dust” includes “all combustible particulate solids of any size, shape, or chemical composition that could present a fire or deflagration hazard when suspended in air or other oxidizing medium.”

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Sen. Al Franken (D-Minn.) has introduced the Nurse and Health Care Worker Protection Act of 2009 (S. 1788), legislation that would direct the Secretary of Labor to issue an occupational safety and health standard on safe patient handling and injury prevention, and require health facilities to implement safe patient handling plans consistent with the rule.  A companion bill (H.R. 2381) was introduced in the House of Representatives on May 13 of this year.

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Last Thursday, Rep. Nathan Deal (R-GA) introduced two healthcare-related bills applicable to employers. The Improved Employee Access to Health Insurance Act of 2009 (H.R. 3821) would prevent states from enacting any law that prevents an employer from instituting an auto-enrollment process for employee health insurance coverage, so long as the participant or beneficiary has the option to decline coverage.

The second bill introduced by Rep. Deal (H.R. 3822) would allow employers that do not offer health benefits to provide tax-free defined contributions and administrative assistance to employees who opt to buy health insurance coverage on their own. The offer of assistance and tax-free contributions would not be considered a group health plan for Employee Retirement Income Security Act (ERISA) or the Public Health Service Act purposes.

The Improved Employee Access to Health Insurance Act has been referred to the House Committee on Education and Labor. H.R. 3822 has also been referred to this committee, as well as to the House Committees on Energy and Commerce and Ways and Means.
 

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Last week, lawmakers introduced legislation that would increase employer tax credits to encourage hiring. The Helping Invigorate and Revive our Economy Act of 2009 (HIRE America Act) (H.R. 3784) would expand the Work Opportunity Tax Credit (WOTC) and increase employer-provided child care credits, in addition to making the WOTC permanent. As it stands, the WOTC is set to expire on August 31, 2011.

In a press release, Rep. Tom Rooney (R-Fla.), who along with Rep. John Boccieri (D-Ohio) introduced the bill, explained that the legislation would increase the income tax credit for employers for each employee who is eligible under current WOTC criteria up to 50 percent. The bill would also create a new income tax credit for all other hires outside the current WOTC up to 30 percent. In addition, the bill would increase the maximum wage eligibility for veterans under the current WOTC from $12,000 to $16,000, and boost tax credits for employers who offer childcare services or benefits to employees up to 35 percent.

This bill has been referred to the House Committee on Ways and Means.
 

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Rep. Luis Gutierrez (D-IL), chair of the Congressional Hispanic Caucus Immigration Task Force, has outlined a set of core principles that he plans to include in a comprehensive immigration reform bill. In a press release issued October 13, Gutierrez stated:

We simply cannot wait any longer for a bill that keeps our families together, protects our workers and allows a pathway to legalization for those who have earned it. It is time we had a workable plan making its way through Congress that recognizes the vast contributions of immigrants to this country and that honors the American Dream. I am preparing such a plan, and will introduce it in the near future.

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Sen. Claire McCaskill (D-MO) has introduced legislation that would expand whistleblower protections to non-federal employees who disclose information about the misuse of federal funds. The Non-Federal Employee Whistleblower Protection Act of 2009 (S. 1745) would shield employees of companies that receive funding from any government agency (in the form of either grants or contracts) from retaliation for making protected disclosures involving waste or fraud. The bill also expands the scope of covered actions, outlines the burden of proof in whistleblower cases, and prevents employers from forcing employees to waive their whistleblower rights.

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The House of Representatives voted 409 to 11 yesterday to approve the Airline Safety and Pilot Training Improvement Act (H.R. 3371), a bi-partisan bill that would establish new flight safety standards and pilot training requirements. This legislation – which the House Transportation Committee approved without amendment on July 30 – would do the following:

• Establish the Federal Aviation Administration (FAA) Task Force on Air Carrier Safety and Pilot Training (“Task Force”) that would be comprised of air carrier representatives, labor union representatives, and aviation safety experts. The Task Force would be responsible for, among other things, evaluating best practices in the air carrier industry and providing recommendations on air carrier management responsibilities for flight crewmember education and support, flight crewmember professional standards, flight crewmember training standards and performance, and mentoring and information sharing between air carriers. Every 180 days the Task Force would report its findings to Congress and make recommendations for legislative and regulatory action.

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The Department of Labor (DOL) has confirmed that Lorelei Boylan has withdrawn her nomination for Administrator of the agency’s Wage and Hour Division (WHD) for family reasons. The WHD is a sub-agency within the DOL’s Employment Standards Administration (ESA) responsible for enforcing federal labor laws concerning, among other topics, minimum wage, overtime pay, recordkeeping, youth employment and special employment, family and medical leave, migrant workers, lie detector tests, worker protections in certain temporary worker programs, and the prevailing wages for government service and construction contracts. President Obama named Boylan as his choice to lead the WHD on April 14, 2009. The WHD is expected to ramp up its enforcement efforts in the coming months, so whoever President Obama nominates in her stead will be charged with hiring and training new compliance officers, among other responsibilities.

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The Equal Employment Opportunity Commission (EEOC) has issued an updated Technical Assistance Document (TAD) – Pandemic Preparedness in the Workplace and the Americans with Disabilities Act – to address how employers may prepare their workplaces for pandemic influenza outbreaks and still remain in compliance with the Americans with Disabilities Act (ADA). The TAD was amended in response to employers’ frequently asked questions about workplace preparation for, and reaction to, outbreaks of the H1N1 virus, which has become more widespread in recent months.

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In a closely-watched vote, the Senate Finance Committee approved by a 14 to 9 margin the America’s Healthy Future Act (pdf), a healthcare overhaul bill drafted by committee chairman Max Baucus (D-Mont.). Sen. Olympia Snowe (R-Maine) was the only Republican committee member to cross party lines and vote in favor of the measure. The committee’s final draft of this bill was released on October 2 after weeks of contentious markup by committee members. Now that this bill has been approved, Senators Baucus, majority leader Harry Reid (D-Nev.), and Christopher Dodd (D-Conn.) face the daunting task of combining the provisions of this bill with the Affordable Health Choices Act (S. 1679) (pdf), the healthcare reform bill that has already cleared the Senate Health, Education, Labor and Pensions (HELP) Committee. Among other differences between the two bills, the former contains neither a public health insurance option nor stringent employer mandates, while the latter does.

Meanwhile, the House of Representatives, whose version of the healthcare bill – America's Affordable Health Choices Act (H.R. 3200) – cleared the House Ways and Means, Education and Labor, and Energy and Commerce Committees in July, is reportedly working to meld the proposals from each of these committees to draft a bill that can be brought to the House floor for a vote. Edits to the bill from the House Ways and Means Committee can be found here; those from the House Education and Labor Committee can be found here; and those from the House Energy and Commerce Committee can be found here.

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Senators Harry Reid (D-Nev.), Max Baucus (D-Mont.), Jack Reed (D-R.I.) and Jeanne Shaheen (D-N.H.) have introduced a new bill, the Emergency Unemployment Compensation Extension Act of 2009 (S.A. 2668 to H.R. 3548), that would extend unemployment insurance benefits for individuals in all 50 states. Under the terms of this legislation, unemployed workers would receive up to 14 weeks of additional benefits. Those in states with unemployment rates above 8.5 % would be entitled to an additional 6 weeks of benefits. The measure would be funded by extending through June 30, 2011, the Federal Unemployment Tax assessed on employers.

According to a press release issued from Sen. Reid’s office, the bill would also update the Unemployment Insurance Modernization provision in the American Recovery and Reinvestment Act ( “ARRA” or the “Economic Stimulus Package”) to allow victims of sexual assault who have left their job to be eligible for benefits under the “compelling family reasons” clause. Additionally, the legislation specifies that railroad workers facing expiring unemployment benefits would be eligible for additional weeks.

This measure is intended as a substitute for the Unemployment Compensation Extension Act of 2009 (H.R. 3548), which would have extended unemployment benefits for 13 weeks only in states with high persistent unemployment (8.5% on a rolling three-month average). The original bill passed the House of Representatives last month, but stalled in the Senate when lawmakers from states with unemployment rates that did not exceed the requisite threshold cried foul. Sen. Shaheen – who led the chorus of disenchantment by writing a letter to the Senate urging that benefits be extended in all 50 states – co-authored the new bill.

Given the current state of the economy and mounting unemployment rates, this measure is expected to receive widespread support in both houses of Congress.

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In an informal opinion letter released October 6, 2009, the Equal Employment Opportunity Commission (EEOC) determined that requiring employees to complete a health risk assessment as a precondition to receiving payment from an employer-funded health reimbursement arrangement can violate the Americans with Disabilities Act (ADA) in certain circumstances.

The letter, written by EEOC Assistant Legal Counsel Peggy Mastroianni, was in response to an employer that asked whether requiring employees to answer more than 100 questions in several categories, including “Personal Health,” “Health Choices-Alcohol and Tobacco,” “Health Changes,” and “Family Health History,” as a prerequisite to receiving health expense reimbursement under an employer-funded health reimbursement plan would violate the ADA. Mastroianni explained that the ADA permits employers to make disability-related inquiries and obtain medical information from employees in certain circumstances, such as if the inquiry is job-related and consistent with business necessity, is part of a follow-up to a request for a reasonable accommodation, or is part of a voluntary wellness program. A program is considered “voluntary” if the employees are neither required to participate nor penalized for non participation.

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The Department of Labor (DOL), Internal Revenue Service (IRS), and the Centers for Medicare and Medicaid (CMS) have published in the Federal Register interim final rules (pdf) governing Sections 101 through 103 of Title I of the Genetic Information Nondiscrimination Act of 2008 (GINA). Title I of GINA amended the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act (PHS Act), the Internal Revenue Code of 1986 (Code), and the Social Security Act (SSA) to prohibit discrimination in health coverage based on genetic information. Sections 101-103 contain provisions banning discrimination based on genetic information in health insurance coverage and group health plans. The EEOC has not yet issued final rules interpreting Title II of GINA, which prohibits discrimination in employment based on genetic information, and limits the acquisition and disclosure by employers and other entities of such information.

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The Department of Homeland Security (DHS) has published in today’s Federal Register a final rule rescinding the controversial “no-match” rule. The rule – which has been enjoined by a lawsuit filed in 2007 and therefore never implemented – created safe harbor procedures for employers that receive no-match letters from the Social Security Administration (SSA) or notice of suspect documents letters from the U.S. Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country. In essence, the rule would have required that no-match letters or ICE notices be accompanied by a set of procedures for employers to follow to address any flagged identification discrepancies. Following the prescribed steps would allow an employer to avoid a finding that it had constructive knowledge of a worker’s illegal status, thus incurring civil and criminal liability under the Immigration Reform and Control Act of 1986.

According to DHS, the agency will instead focus its resources on alternative programs to reduce unauthorized employment, including E-Verify and ICE Mutual Agreement Between Government and Employers (IMAGE), among other programs.

The final rule is effective November 6, 2009.

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The Senate approved by a vote of 68 – 30 an amendment (S.A. 2588) to the defense appropriations bill (H.R. 3326) that would prohibit federal contractors or subcontractors receiving defense department funds from forcing their employees or independent contractors to sign, as a condition of employment, agreements to arbitrate certain employment-related claims. Specifically, the amendment bans contractors or subcontractors at any tier that receive funds from the appropriations bill from enforcing mandatory, pre-dispute agreements to arbitrate “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” The provisions of this amendment would not apply to employment contracts that are not enforceable in this country.

The appropriations bill including the above amendment was approved by a vote of 93-7. This version of the bill will now need to be reconciled with that approved by the House in July.

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As expected, lawmakers have introduced legislation in both houses of Congress that would overturn the Supreme Court’s opinion in Gross v. FBL Financial Services, Inc., a decision that made it tougher for employees to bring mixed-motive discrimination claims under the Age Discrimination in Employment Act (ADEA). In Gross, the Supreme Court held that employees must prove by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse decision. An employer therefore does not carry the additional burden of proving that it would have made the same decision regardless of age, even if the employee were to produce some evidence of age bias in the decision-making process. According to a press release, the new bill, Protecting Older Workers Against Discrimination Act (H.R. 3721, S. 1756):

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The Senate Finance Committee, after two weeks of much-publicized markup, has released its final version of healthcare reform legislation. Introduced by Sen. Max Baucus (D-Mont.) on September 16, America’s Healthy Future Act (pdf) has been considered the most conservative of the healthcare overhaul bills, as it contains neither a public health insurance option nor an employer mandate requiring the provision of health benefits. The bill does, however, impose on employers certain obligations. Specifically, the latest version of the bill would require the following:

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On Tuesday, the Senate is scheduled to vote on an amendment (S.A. 2588) to the Defense Appropriations Bill (H.R. 3326) that would effectively prevent federal contractors or subcontractors at any tier that receive funding under the appropriations bill from using mandatory pre-dispute binding arbitration agreements with their employees or independent contractors in civil rights and sexual harassment matters.  Introduced by Senators Al Franken (D-Minn.) and Mary Landrieu (D-La.), the amendment would insert the following provision into the appropriations bill:

Sec. 8104. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

(b) The prohibition in subsection (a) does not apply with respect to employment contracts that may not be enforced in a court of the United States.
 

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A bill that would temporarily provide an additional 13 weeks of unemployment insurance benefits to states with high and sustained unemployment has lost momentum in the Senate. The Unemployment Compensation Extension Act of 2009 (H.R. 3548) sailed through the House of Representatives on September 22 by a vote of 331 to 83.  Obstacles to this measure arose in the Senate, however, where some lawmakers have expressed concern that this bill would be unfair to those states that have not exceeded 8.5% unemployment (for a rolling three-month average), as required by the bill to qualify for additional benefits.

Leading the criticism is Sen. Jeanne Shaheen (D-NH), who argued that the UI benefits extension should apply to all 50 states. In a statement and letter to the Senate signed by 14 fellow Democratic Senators and two Independents, Shaheen said that “unemployed workers face equally severe challenges no matter what state they live in, and they should be given the support they need.”

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The Occupational Safety and Health Administration (OSHA) announced that it has started its one-year national emphasis program (NEP) (pdf) on recordkeeping to assess the accuracy of injury and illness data recorded by employers. Under this program, OSHA inspectors will conduct audits of at most 50 employers with at least 40 employees. No more than five worksites will be targeted per OSHA region. Those selected will be employers in one of 21 named industries that have reported the highest rates of missed work, restricted work activity, or job transfers. Such industries include animal (except poultry) slaughtering, scheduled passenger air transportation, foundries, concrete pipe manufacturing, soft drink manufacturing, and couriers.

The audit will include a safety and health walkaround inspection of the workplace on the first day of the review. The compliance officers will examine the employees' records in order to identify occupational injuries and illnesses that may have occurred to those employees from 2007 to 2008. OSHA will then compare its findings to the records the employer provided to the agency to find any discrepancies. As part of the NEP, OSHA will review medical records, workers’ compensation records, insurance records, payroll/absentee records and, if available, company safety incident reports, company first-aid logs, alternate duty rosters, and disciplinary records pertaining to injuries and illnesses. The agency will also review records that are stored offsite. Additionally, the OSHA compliance officers will conduct interviews with employees, management, the record keepers, and medical staff. If recordkeeping violations are identified, the inspectors will propose citations and penalties.

Those employers that currently participate in OSHA’s Voluntary Protections Programs or Safety and Health Achievement Recognition Program (SHARP) will be exempt from the NEP.
 

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Patricia Shiu took the helm of the Office of Federal Contract Compliance Programs (OFCCP) this week. The OFCCP is the DOL sub-agency charged with administering and enforcing three laws that prohibit discrimination and require federal contractors and subcontractors to implement affirmative action plans. Shiu was named as the new OFCCP director in August.  Her current position within the DOL does not require a Senate confirmation. However, when the DOL’s Employment Standards Administration (ESA) – the umbrella agency within the DOL that encompasses the OFCCP along with three other sub agencies – is abolished, Shiu will report directly to the Secretary of Labor. Had Shiu taken her job after the dissolution of the ESA, she would likely have had to face a formal Senate confirmation process. At this point, it is unclear what title Shiu will hold after the ESA’s dissolution.

Prior to taking the job at the OFCCP, Shiu served as the Vice President for Programs at the Legal Aid Society-Employment Law Center (LAS-ELC) in San Francisco. Shiu has also worked as the director of the Society’s Work and Family Project, and lobbied for the passage of California’s Family Rights Act and its regulations. In 1993, former U.S. Secretary of Education Richard Riley appointed Shiu to the Department of Education’s Civil Rights Reviewing Authority. In addition, Shiu is a former member of NELA’s Executive Board, and served as one of its vice presidents.

Shiu’s advocacy of family leave and employment anti-discrimination issues makes it likely that she will champion the pending Paycheck Fairness Act (H.R. 12, S. 182), which, among other things, would reinstate the OFCCP’s discarded Equal Opportunity survey. The EO survey allowed the agency to gather certain employment information from federal contractors and subcontractors related to their Affirmative Action Programs, personnel activity and compensation. The legislation also provides the OFCCP with additional investigative methodologies to use in performing compensation analysis. As head of the OFCCP, Shiu will also be responsible for hiring and training a projected 200 new compliance officers.
 

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The Supreme Court has agreed to decide whether the deadline for filing a disparate impact employment discrimination claim under Title VII of the Civil Rights Act should be 300 days after a discriminatory practice is announced or after it is implemented. In the case at issue – Lewis v. City of Chicago – the City of Chicago administered a written test to 26,000 firefighter applicants. The results of this test were divvied up by score into three levels: “well qualified,” “qualified,” and “not qualified.” Only about 11 percent of the 1,782 applicants who fell into the “well qualified” category were African American. Although applicants whose scores landed them in the “qualified” tier would be placed on the eligible list for the jobs since they passed the exam, shortly after the scores were announced the City reported that it expected to hire only about 600 of the 1,782 “well qualified” applicants, leading the remaining job hopefuls to believe they would not be hired. The actual hiring process took several months.

A class of approximately 6,000 African American applicants who fell into the “qualified” category filled suit against the City over a year later, claiming that the test had a disparate impact on minority candidates. A federal judge in Chicago initially ruled in favor of the plaintiffs. The Seventh Circuit reversed this decision last year, finding that the plaintiffs failed to file a claim with the Equal Employment Opportunity Commission (EEOC) within the statutorily-prescribed 300 days of the announcement of the test results. According to the Seventh Circuit, “[t]he first injury in this case was the classification of the black applicants as merely ‘qualified’ on the basis of a test that they contend was discriminatory.” The court therefore rejected the plaintiff’s argument that the discriminatory event was the application of the test results – i.e., the failure to hire the affected African American candidates. The Seventh Circuit also rejected the plaintiff’s “continuing violation” theory, explaining that “the statute of limitations begins to run upon injury (or discovery of the injury) and is not restarted by subsequent injuries.”

In their petition for Supreme Court review, the plaintiffs allege that the circuits are split on this issue of timeliness. The Second, Fifth, Ninth, Eleventh, and District of Columbia circuits, they claim, have held that each time an employer relies on a facially neutral policy that disparately impacts a protected class constitutes a new violation of Title VII. The Third and Sixth circuits, in contrast, have held that a claim ripens when the employees or applicants become aware of the alleged discriminatory practice.

The outcome of this case will be significant. If the Supreme Court agrees with the firefighter applicants, an employer might be subject to a disparate impact discrimination lawsuit years after an initially unchallenged policy is adopted.

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