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

On Monday, the Pension Benefit Guaranty Corporation (PBGC) issued a proposed rule that would, among other things, conform the agency’s reportable events regulation under the Employee Retirement Income Security Act (ERISA) and other PBGC regulations to the changes made by the Pension Protection Act of 2006 (PPA 2006). According to the PBGC’s overview of the proposed rule published in the Federal Register, the new regulations would do the following:

• amend the PBGC’s reportable events regulation to make the advance reporting threshold test consistent with the PPA 2006 funding rules and PBGC’s new variable rate premium rules;
• eliminate most automatic waivers and filing extensions currently available under the reportable events regulation;

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Last week, Rep. Rosa Delauro introduced the Keep Americans Working Act (H.R. 4135) in the House of Representatives. An identical bill (S. 1646) was introduced in the Senate by Sen. Jack Reed (D-RI) in August. This bill would encourage employers to implement temporary work share programs as an alternative to layoffs, and entitle those employees working reduced hours to receive proportionate unemployment benefits.

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Senators Bernie Sanders (I-Vt.) and Charles Grassley (R-Iowa) have introduced legislation that would prevent large companies that conduct mass layoffs from hiring foreign labor through guest worker programs. The Employ America Act (S. 2804) (pdf) builds on similar prohibitions included in the American Recovery and Reinvestment Act (ARRA or “Economic Stimulus”), which prevents companies receiving funds through the Troubled Asset Relief Program (TARP) from replacing laid-off citizen workers with foreign labor. Under the terms of the Employ America Act, no guest worker visa petitions would be approved unless the employer provides written certification that it has not provided a notice of a mass layoff pursuant to the Worker Adjustment and Retraining Notification (WARN) Act in the past 12 months, and does not intend to do so. The provisions of the WARN Act apply to employers with more than 100 employees that lay off at least a third of their workforce and 50 or more workers. If such a large employer has instituted a mass layoff, any visa applications already approved would expire 60 days after the WARN notice is provided. An employer would be exempt from this requirement if it provides written certification that the total number of its citizen workers employed in the United States have not and would not be reduced as a result of the mass layoff.

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The Occupational Safety and Health Administration (OSHA) is seeking comment on its proposal to extend the Office of Management and Budget’s (OMB) approval of the information collection requirements set forth in the Personal Protective Equipment (PPE) Standard for general industry. OSHA’s information collection requirements under the general requirements for PPE include a hazard assessment of potential workplace hazards necessitating PPE, and verification that the assessment has been conducted. In addition, this standard requires that employers provide training and certification for each worker who is required to wear PPE. OSHA seeks comments on, among other things, whether these information collection requirements are necessary for the proper performance of the Agency’s functions, including whether the information is useful; whether OSHA’s estimate of the burden of the information collection requirements are accurate; the quality, utility, and clarity of the information collected; and ways to minimize the burden on employers who must comply with there requirements.

Comments must be submitted by January 22, 2010 and contain the identification number: OSHA-2009-0028. Comments sent via regular mail, hand delivery, express mail, messenger, or courier service must be provided in triplicate to the OSHA Docket Office, Docket No. OSHA-2009-0028, U.S. Department of Labor, Occupational Safety and Health Administration, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. In the alternative, comments can be made electronically to the Federal eRulemaking Portal at http://www.regulations.gov, or via fax if no longer than 10 pages to: (202) 693-1648.

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Last week, Rep. Lloyd Doggett (D-Tex.) introduced a bill that aims to close tax loopholes that enable companies to provide highly compensated employees with generous retirement benefits at the expense of lower- and middle-income workers. The Retirement Fairness Act of 2009 (H.R. 4126) adds two sections to the Internal Revenue Code (IRC) to modify the rules relating to the nondiscrimination requirements in qualified pension plans and to include part-time employees in determining the minimum coverage requirements for these plans. The net effect of these changes would be to limit the use of Qualified Supplemental Executive Retirement Plans (Q-SERPs), which permit certain highly paid executives from paying themselves additional retirement benefits funded through their workers’ pension plans.

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

Photo credit:  Kameleon007

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As anticipated, the Department of Labor’s the Employee Benefits Security Administration (EBSA) has withdrawn its final rule (pdf) published on January 21, 2009 regarding the provision of investment advice to participants and beneficiaries in individual account plans such as 401(k)s and beneficiaries of individual retirement accounts (IRAs) and related plans. Last week, the EBSA issued a final rule extending the applicability and effective dates of the investment advice rule, which would have taken effect on November 18.

The withdrawn rule would have implemented a statutory prohibited transaction exemption under the Employee Retirement Income Security Act (ERISA) and parallel provisions in the Internal Revenue Code made by the Pension Protection Act (PPA), and provided an additional administrative class exemption. According to the EBSA, the agency received a number of comments that raised concerns about the potential for investment adviser self-dealing as a result of these provisions. Commenters claimed that the rule does not contain strong enough safeguards to protect the interests of plan participants and beneficiaries from potential conflicts of interest. The EBSA concluded that given these and other legal and policy concerns raised, the Department is justified in withdrawing its final rule, and intends to propose new regulations on the statutory prohibited transaction exemption under ERISA shortly.

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On Wednesday, Senate Majority Leader Harry Reid (D-Nev.) released a long-awaited version of healthcare overhaul legislation that he intends to submit to the Senate floor. Offered in the form of a substitute bill, the Patient Protection and Affordable Care Act (pdf) is a compromise between two other Senate measures, the America’s Healthy Future Act (S. 1796), which cleared the Senate Finance Committee in October, and the Affordable Health Choices Act (S. 1679), a bill passed by the Senate Health, Education, Labor and Pensions (HELP) Committee this summer. The House passed its own healthcare bill, the Affordable Health Care for America Act (H.R. 3962), earlier this month.

Some key components of this 2,074-page bill include a mandate for most legal residents to obtain health insurance, the establishment of health insurance “exchanges” through which certain individuals and families could receive federal subsidies to help them purchase health insurance on their own, an excise tax on insurance plans with relatively high premiums, regulations of the insurance industry itself, and monetary penalties for large employers that do not offer health benefits.

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At a symposium in Washington, D.C., US Citizenship and Immigration Services (USCIS) announced that an additional 1,000 Notices of Inspection (NOI) will be issued. This is a significant move and reveals the administration's intent to increase enforcement actions against employers that engage in the unlawful hiring of undocumented workers. This year alone, Immigration Customs and Enforcement has issued 1,044 NOIs, which is three times as many NOIs than were issued in 2008. Adding another 1,000 NOIs drastically increases this statistic. To further illustrate the administration's aggressive pursuit of employers, Notices of Fines totaling $24 million have been issued in 2009, compared with $2.4 million in 2008. Also, during 2009, 100 companies and individuals have been barred from doing business with the federal government, whereas only one company was barred last year.  Continue reading at Littler's Global Immigration Counsel blog.

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On Wednesday, Rep. Steve King (R-Iowa) re-introduced the National Right-to-Work Act (H.R. 4107).  The stated purpose of this bill is “to preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities.” Specifically, this bill would amend the National Labor Relations Act (NLRA) and the Railway Labor Act (RLA) to repeal the provisions in these Acts that permit employers, pursuant to a collective bargaining agreement that is a union security agreement, to require employees to join a union as a condition of employment, and require the payroll deduction of union dues or fees as a condition of employment.

Identical bills were introduced in the House and Senate during the 109th and 110th Congresses, but failed to gain sufficient traction. The current bill has been referred to the House Committee on Education and Labor.

Photo credit:  YanC

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The Department of Defense (DoD) has adopted without change an interim rule that provides whistleblower protections for DoD contractor employees. The interim rule, issued on January 15, 2009, implemented portions of the National Defense Authorization Acts for Fiscal Years 2008 and 2009 that added these whistleblower rights and protections. Specifically, the added protections prevent government contractors from discharging, demoting, or otherwise discriminating against employees as a reprisal for disclosing to government officials information regarding waste or mismanagement, danger to public health or safety, or a violation of law related to a DoD contract.

The interim rule expanded the types of information covered by existing whistleblower protections, in addition to the categories of government officials to whom the information could be reported without reprisal. The rule also established time periods in which the Inspector General and agency head must act on the employee’s complaint of a whistleblower violation, and allows the employee to bring a claim in federal court once he or she has exhausted all administrative remedies. Pursuant to the new rule, all solicitations and contracts must include a clause informing employees of their whistleblower rights.

These requirements became final as of November 19, 2009.

Photo credit:  Lkmorlan

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The Genetic Information Nondiscrimination Act (GINA) takes effect on November 21, 2009. How does GINA impact employers?  GINA does the following: (a) prohibits employers from discriminating against an employee based upon genetic information, (b) places broad restrictions on an employer’s deliberate acquisition of genetic information, (c) mandates confidentiality for genetic information that employers lawfully collect; (d) strictly limits disclosure of such information, and (e) prohibits retaliation against employees who complain about genetic discrimination.  Continue reading at Littler's Workplace Privacy Counsel blog.

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As promised, Sen. Chris Dodd (D-Conn.) and Rep. Rosa DeLauro (D-Conn.) have introduced in both chambers of Congress emergency legislation that would provide most employees with up to seven paid sick days to care for themselves or a family member with a contagious illness, including the H1N1 influenza virus. The Pandemic Protection for Workers, Families, and Businesses Act (S. 2790, H.R. 4092) would allow employees to use these sick days to tend to their own flu-like symptoms, obtain a medical diagnosis or preventive treatment, care for a sick child, or care for a child whose school or child care facility has been closed due to the spread of a contagious illness. Part-time employees would also be entitled to paid leave on a pro-rated basis. Employees would have the discretion to decide whether they need to take leave, although the Department of Labor (DOL) could issue a regulation requiring medical certification. In addition, the bill would make it unlawful for an employer to take an adverse action or otherwise discriminate against employees that avail themselves of these leave benefits. If enacted, the terms of this bill would take effect within 15 days, and sunset after two years. Employers that already provide up to seven days of annual paid sick leave would not be required to provide additional benefits.

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According to the Equal Employment Opportunity Commission’s (EEOC) annual report released this week, the agency received 93,277 private sector discrimination charges in 2009, the second highest number in 20 years. The Performance and Accountability Report FY 2009 (PAR) (pdf) noted that the number of private sector charges is projected to exceed 100,000 by the end of fiscal year 2010.

According to the PAR, the increase in charges is due in part to the additional statutory authority given to the agency through the passage of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and the Lilly Ledbetter Fair Pay Act of 2009. The EEOC claims that it has already felt the effects of the ADAAA, as there was a 10.6 percent rise in the number of ADA charges filed (21,451) compared to the 19,401 ADA charges filed in FY 2008. The agency anticipates a small increase in the number of charges filed with EEOC as a result of the enactment of the Genetic Information Nondiscrimination Act of 2008 (GINA), the employment provisions of which take effect on November 21, 2009.

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Both the Department of Labor’s Employee Benefits Security Administration (EBSA) and the Pension Benefit Guaranty Corporation (PBGC) have issued final rules published in today’s Federal Register that affect employer-provided pension plans. The EBSA’s final rule (pdf) delays until May 17, 2010 the effective and applicability dates of final rules under the Employee Retirement Income Security Act (ERISA) and parallel provisions in the Internal Revenue Code (IRC) dealing with the provision of investment advice to participants and beneficiaries in individual account plans such as 401(k)s and individual retirement accounts (IRAs). The rules, which were issued during the final days of the Bush administration, would have permitted advisers affiliated with mutual funds, brokerage firms and other companies that sell investments to provide investment advice to 401(k) and IRA participants. EBSA’s Assistant Secretary Phyllis C. Borzi has already announced that the agency plans to withdraw and rework this rule, which would have gone into effect on November 18. On January 20, 2009, Chief of Staff Rahm Emanuel directed agency heads to consider delaying any rule that had not yet taken effect to give the new administration a chance to review the law and policy involved.

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The New York Times reports that the Obama Administration will push to implement immigration reform measures in the first quarter of 2010. Department of Homeland Security Secretary Janet Napolitano indicated in an address to the Center for American Progress that immigration reform will be put on the political agenda early in 2010. Napolitano sent a clear message to Congress that it should be ready for movement on immigration. Specifically, Napolitano referred to a "three-legged stool" approach that will incorporate tougher enforcement laws aimed at employers and illegal immigrants, a streamlined system for legal immigration, and a stringent process to allow illegal immigrants to become legal. It is anticipated that the Administration's focus on securing the border and targeting employers that hire undocumented workers will substantially increase while the foundation is laid to introduce an immigration reform initiative to Congress.

This entry was written by Ian R. Macdonald.

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Last week Sens. Sherrod Brown (D-Ohio) and Robert Casey (D-Pa.) introduced the COBRA Subsidy Extension and Enhancement Act of 2009 (S. 2730), a bill that would enhance the COBRA continuation health coverage subsidy program created by the American Recovery and Reinvestment Act of 2009 (“ARRA” or “Economic Stimulus”). Under the current program, the government provides certain qualifying unemployed workers with a 65 percent subsidy of their health insurance premiums for up to nine months. Individuals who first became eligible to take advantage of this temporary COBRA assistance in March 2009 will lose their coverage beginning in December 2009. The COBRA Subsidy Extension and Enhancement Act would extend this deadline, as well as increase the amount of the subsidy and the number of individuals who would be able to take advantage of this program.

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The Department of Labor’s (DOL) Wage and Hour Division (WHD) has posted to its website information sheets discussing the interplay between pandemic flu preparation/response and compliance with the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). Both guidance documents are in question and answer form, and address common wage, hour, and leave issues employers face when employees or their family members become sick with the H1N1 influenza virus or other pandemic flu.

Both fact sheets: Pandemic Flu and the Fair Labor Standards Act: Questions and Answers (pdf) and Pandemic Flu and the Family and Medical Leave Act: Questions and Answers (pdf) can be found here.

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On Tuesday the Senate cleared a bill 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 also passed by voice vote a nearly identical bill (H.R. 912).

During floor consideration of the Senate bill, Sen. Patty Murray (D-Wash.), who introduced the legislation, stated:

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Secretary of Labor Hilda Solis has issued four orders detailing the authority of the four sub-agencies within the Department of Labor’s (DOL) Employment Standards Administration (ESA) that are now standalone agencies as a result of the ESA’s November 8 dissolution.  The four orders (Secretary’s Order 7-2009, 8-2009, 9-2009, and 10-2009) describe the delegation of authority and assignment of responsibilities to the directors of the Office of Federal Contract Compliance Programs (OFCCP), Office of Labor-Management Standards (OLMS), Wage and Hour Division (WHD), and the Office of Workers’ Compensation Programs (OWCP), respectively. Prior to November 8, these four entities had been under the ESA’s organizational umbrella. The directors of these agencies now report directly to the Secretary of Labor.

All four orders, published in today’s Federal Register and effective as of November 8, cancel the Secretary’s Order 1-2008 regarding the ESA. All existing DOL orders, directives, policies and guidance that reference this earlier Order are now amended to refer to one of the four new standalone entities, as appropriate.

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President Obama has announced his intent to nominate Cynthia Attwood to be a member of the Occupational Safety and Health Review Commission (OSHRC). The OSHRC is the independent federal agency responsible for adjudicating contests of citations or penalties resulting from an Occupational Safety and Health Administration (OSHA) workplace inspection. The agency, which functions as an administrative court, is also charged with establishing procedures for conducting hearings, receiving evidence, and rendering decisions.

According to a White House press release on her nomination, Attwood served for eight years as an Attorney Advisor for the Department of Labor's (DOL) Administrative Review Board, and then for three years as an Administrative Appeals Judge on this Board. In addition, Attwood spent more than 10 years in the Senior Executive Service at the DOL, both as the Associate Solicitor for Occupational Safety and Health and as the Associate Solicitor for Mine Safety and Health. After receiving her law degree from the University of Minnesota, Attwood began her career as a civil rights litigator at the Department of Justice.

Photo credit: dra_schwartz

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Legislation introduced in both chambers of Congress would extend for one year a tax incentive program that encourages small businesses to provide wage differentials to their employees called to active duty. The Small Business and Military Family Assistance Act of 2009 (H.R. 4042, S. 2748) would provide a tax credit for employers with fewer than 50 employees that chose to pay the difference between their employee reservists’ regular wages and their military pay while in active service. This bill would provide these small businesses with a credit equal to 20 % of the pay differential, up to $4,000.

In a press release Klein stated: “Many small businesses voluntarily choose to support our troops by making up the difference between military and civilian pay when one of their employees is called to active duty service. This is the right thing to do, and these businesses should be supported and rewarded with tax incentives.” If enacted, this tax credit would be extended to December 31, 2011.

The Senate version of this bill has been referred to the Senate Finance Committee. The House companion bill has been referred to the House Committee on Ways and Means. 

Photo Credit: soldiersmediacenter
 

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During a November 10 Senate subcommittee hearing on the H1N1 influenza virus (“swine flu”) and paid sick leave, Senator Chris Dodd (D-Conn.) announced that he plans to introduce a bill that would entitle most employees to take up to 7 days of paid sick leave to deal with the H1N1 or seasonal flu. According to a press release, under the terms of this bill workers would be entitled to the paid leave for their own flu-like symptoms, medical diagnosis or preventive care, to care for a sick child, or to care for a child whose school or child care facility has been closed due to the spread of flu. The decision to take this leave would be left to the employee’s discretion, although the Department of Labor could issue regulations requiring medical certification. If signed into law, the provisions of this bill would take effect 15 days after enactment, and sunset after 2 years.

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The Occupational Safety and Health Administration (OSHA) has created a website that contains guidance materials for employees and employers on how to reduce exposure to the H1N1 influenza virus (“swine flu”) in the workplace. Separate fact sheets recommending additional precautions are available for employers and workers in the health care industry.

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On Monday, President Obama issued an executive order to promote the federal government’s hiring of veterans. The executive order, Employment of Veterans in the Federal Government, creates an interagency Council on Veterans Employment – chaired by the Secretary of Labor and the Secretary of Veterans Affairs – that will advise the President and the Director of the Office of Personnel Management on the veterans’ employment initiative (“Initiative”) created by the executive order, and serve as a national forum for promoting veterans’ employment opportunities in the executive branch. Under the Initiative, most federal agencies will be required to establish a Veterans Employment Program office that will be responsible for helping veterans find jobs within those agencies. In addition, these offices will be in charge of implementing veteran’s recruitment programs and training programs for veterans with disabilities, providing mandatory annual training to the agency’s human resources personnel and hiring managers, coordinating employment counseling to help match veterans’ career goals with the needs of the agency, and transitioning service members into the workforce, among other responsibilities.

According to a press release, the Initiative “underscores to federal agencies the importance of recruiting and training veterans, aims to increase the employment of veterans within the Executive Branch, and helps recently hired veterans adjust to service in a civilian capacity.”

Photo credit: Captainflash

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On Saturday, the House of Representatives passed the Affordable Health Care for America Act (H.R. 3962) by a vote of 220-215. Rep. Anh “Joseph” Cao (R-La.) was the only Republican House member to vote in favor of this healthcare overhaul legislation, while 39 House Democrats dissented.

Among other things, this nearly 2,000-page bill requires most individuals to purchase health insurance, and most large employers to either offer their employees health insurance or contribute funds (in the form of an 8 percent payroll tax) on their behalf to help subsidize the coverage they would instead obtain through health insurance exchanges. Smaller employers would either be subject to a smaller annual payroll tax, or be exempt from this “pay or play” requirement entirely. The bill also creates a public health insurance option that would be available within the exchange. Additionally, almost all employer-sponsored health plans would be required to meet essential benefit package requirements beginning in 2018. This legislation also imposes a number of restrictions on insurance providers. For example, this bill would prohibit preexisting condition exclusions in health insurance plans, lifetime limitations on benefits, and the practice of charging higher health insurance rates based on factors such as gender or health status.

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The Equal Employment Opportunity Commission (EEOC) has posted on its website an updated “EEO is the Law” poster (pdf) and supplement (pdf) to reflect changes made by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which goes into effect November 21, 2009. Title II of GINA prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements. The new posters also revise information in light of the Americans with Disabilities Act Amendments Act of 2008.

Employers can either print and post the new November 2009 “EEO is the Law” poster, or post the “EEO is the Law” supplement poster alongside the EEOC’s September 2002 “EEO is the Law” or the OFCCP’s August 2008 “EEO is the Law” posters. Information on how to order new posters can be found here.

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This morning, President Obama signed the Worker, Homeownership, and Business Assistance Act of 2009 (H.R. 3548) into law.  Originally titled the Unemployment Compensation Extension Act of 2009, this Act will extend by 14 weeks unemployment benefits in all 50 states. Those states with high, sustained rates of unemployment – averaging at least 8.5 % over a three-month period – will receive up to 20 additional weeks of benefits.

The Senate approved this measure by a vote of 98-0 on November 4. Although the House had approved a less expansive version of this bill in September, it voted 403-12 to pass the Senate’s amended version on November 5. Despite Congress’s overwhelming approval of this legislation, final passage was delayed several weeks when a number of senators sought to include amendments that were unrelated to unemployment.  The amendments the Senate eventually agreed to incorporate in the final bill extend through April 30, 2010 the $8,000 first-time homebuyer tax credit, and allow businesses to apply their 2008 or 2009 operating losses to any five years prior to 2008, enabling them to receive tax refunds for those years. Those businesses that accepted funds through the Troubled Asset Relief Program (TARP) would be ineligible for this tax relief. In addition, the Act contains provisions updating the Unemployment Insurance Modernization provision in the American Recovery and Reinvestment Act to allow victims of sexual assault who have left their job to be eligible for benefits under the “compelling family reasons” clause. This measure is funded by extending the employer-paid Federal Unemployment Tax Act (FUTA) surtax until June 30, 2011.

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The Department of Health and Human Services (HHS) has published interim final rules that conform the enforcement regulations of the Health Insurance Portability and Accountability Act (HIPAA) to those made by the Health Information Technology for Economic and Clinical Health Act (the HITECH Act) regarding the electronic transmission of health information. Signed into law as part of the American Recovery and Reinvestment Act of 2009 (ARRA or ”Economic Stimulus”), the HITECH Act, among other things, modified the HHS Secretary’s authority to impose civil monetary penalties for violations of HIPAA rules occurring after Feb. 18, 2009. These HITECH Act revisions significantly increase the penalty amounts the Secretary may impose for such violations.

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On the heels of its Tuesday announcement of a proposal to accommodate organized labor’s wishes by radically changing the way votes are cast and counted in airline and railroad union elections, the National Mediation Board (NMB) has now scheduled a meeting (pdf) on the subject to take place December 7, 2009. The stated purpose of the meeting is to supplement the comment procedure outlined in the Notice of Proposed Rulemaking by “providing another opportunity for interested persons to provide their views to the Board on this important matter.”

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Rep. George Miller (D-Calif.), chairman of the House Education and Labor Committee, and Rep. Lynn Woolsey (D-Calif.), chair of the Workforce Protections Subcommittee, have introduced a bill that would provide up to five paid days of sick leave per year to employees who are told to miss work on account of a contagious illness. The stated purpose of the Emergency Influenza Containment Act (H.R. 3991) – which applies to employers with 15 or more employees – is to “ensure that American workers are able to follow, without financial harm, the recommendations of their employer and public health authorities to stay home when they have symptoms of a contagious disease that may put co-workers, customers, or the public at risk.” Under the terms of this legislation, which covers both full- and part-time workers, employees would be entitled to this paid leave only if they are sent home or advised to stay home by their employers. Employees who decide to stay home on their own claiming to be sick would not have access to this leave.

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On Tuesday, President Obama submitted to the Senate the nomination of Republican Victoria Lipnic to be a Commissioner of the Equal Employment Opportunity Commission (EEOC). Lipnic currently practices management-side labor and employment law. Before entering private practice, Lipnic served as the U.S. Assistant Secretary of Labor for Employment Standards from 2002 until 2009, where she oversaw the Employment Standards Administration (ESA). Lipnic has also worked as Workforce Policy Counsel to the Republican members of the House Committee on Education and Labor, and as labor and employment in-house counsel for the U.S. Postal Service. During the Reagan administration, Lipnic served as a special assistant for business liaison to U.S. Secretary of Commerce Malcolm Baldrige.

Earlier this year, Obama nominated Democrats Jacqueline Berrien to serve as the agency’s Chair, and Chai Feldblum to be an EEOC member. It is likely that all three nominees will be considered as a package. Current members Acting Chairman Stuart Ishimaru and Acting Vice Chair Christine Griffin are both Democrats, while Commissioner Constance Barker is the lone Republican serving on the five-seat Commission. Republican Naomi Earp, who served as EEOC Chair during the Bush Administration, resigned in the spring. 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. If Lipnic’s nomination is confirmed, she will serve as EEOC Commissioner until July 1, 2015.
 

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On Tuesday, the National Mediation Board (NMB) published in the Federal Register a proposed rule (pdf) to amend its representation election procedure. Upsetting decades of settled policy, Members Harry Hoglander and Linda Puchala, former union officials, have launched a full-court press intended to make it easier for labor organizations to expand union membership in the air and rail industries.

Under the existing and well-settled approach, a majority of employees eligible to vote in representation elections determines the outcome of the election. So, in effect, employees who chose not to participate are counted as “no union” votes. The proposed rule would change this policy to base the voting outcome on the majority of those who actually vote, as is the practice in non NMB-governed industries.

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The Congressional Budget Office (CBO) and the Joint Committee on Taxation (JCT) have issued a preliminary analysis (pdf) of the Affordable Health Care for America Act (H.R. 3962), the new healthcare overhaul bill introduced on October 29, 2009. The CBO estimates that under this bill, approximately six million additional people would obtain health insurance coverage from their employers by the year 2019. In addition, the CBO estimated that by 2019, roughly 21 million people would purchase their own coverage through the new insurance “exchanges” created by the bill.

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The U.S. Supreme Court has agreed to decide whether the National Labor Relations Board (NLRB) has the authority to decide cases with only two sitting members. The Court has granted a petition to review the decision in New Process Steel v. National Labor Relations Board (08-1457) (pdf), in which the Court of Appeals for the Seventh Circuit upheld a two-member Board decision against a challenge claiming that two members were insufficient to constitute a quorum of the Board and therefore could not decide cases. The same day this case was decided, the U.S. Court of Appeals for the District of Columbia Circuit reached the opposite conclusion in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB (pdf), finding that the two-member panel did not constitute a quorum. The First Circuit has weighed in on this issue as well, upholding the two-member panel’s authority to issue orders in Northeastern Land Services, Ltd. v. NLRB (pdf).  

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On October 28 President Obama signed into law the Department of Homeland Security Appropriations bill (H.R. 2892), a measure that includes provisions extending the E-Verify employment verification program by three years, and allocating $137 million to the program 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. The final version of this appropriations bill omitted more stringent provisions that would have made E-Verify and the EB-5 investor program permanent, and allowed employers to verify the employment status of current employees. The bill appropriates $139 million to the U.S. Immigration and Customs Enforcement (ICE) to hire 100 new special agents to conduct worksite enforcement investigations and employer audits.

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In a presentation before the National Safety Council’s (NSC) annual Congress & Expo last week, the Occupational Safety and Health Administration (OSHA) revealed its preliminary list of the top ten most frequent workplace safety violations for 2009. According to a NSC press release, the number of top ten violations has increased almost 30 percent from the previous year. OSHA’s final report outlining the top ten violations will be published in the December edition of NSC’s Safety+Health magazine.

The following is an excerpt from the NSC’s press release describing the top ten violations:

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