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

The Department of Labor’s Employee Benefits Security Administration (EBSA) has released a fact sheet explaining how the Defense Department’s 2010 appropriations bill (“2010 DOD Act”) extends the Consolidated Omnibus Budget Reconciliation Act (COBRA) premium reduction provided by the American Recovery and Reinvestment Act (“ARRA” or “Economic Stimulus”). In general, the 2010 DOD Act extended the COBRA premium reduction eligibility period for two months until February 28, 2010 and increased the maximum period for receiving the subsidy for an additional six months (from nine to 15 months).  Among other things, the fact sheet outlines who is now eligible for the premium reduction, the new period of coverage, and notice requirements plan administrators must provide in light of the extension. The fact sheet explains that plan administrators are now required to provide notice about the changes made to the COBRA premium reduction provisions to individuals who have already been provided a COBRA election notice, unless the election notice included the updated premium reduction information. These notices must be given to assistance eligible individuals by February 17, 2010. Individuals who have been terminated on or after October 31, 2009 and will lose health coverage must be provided this notice “within the normal timeframes for providing continuation coverage notices.” Those who had reached the end of the reduced premium period before the legislation extended it to15 months must be provided this notice within 60 days of the last day they were eligible to receive COBRA premium assistance under the old rules.

Photo credit:  Andriy Solovyov

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Before the Senate adjourned for the holiday break, it returned to the President for reconsideration (pdf) the nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB). President Obama announced his intent to nominate Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, in April.  Becker was officially nominated in July.

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This morning, the Senate voted 60-39 along party lines to approve the Patient Protection and Affordable Care Act (H.R. 3590), the Senate’s healthcare overhaul bill. On Monday, the Senate voted to end debate on the package of amendments to the bill known as the “manager’s amendment,” enabling the amended legislation to be voted on before the Senate recessed for the holidays.

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Two bills introduced in both the House and Senate last week would make significant changes to the H-2B guest worker program. Both the Increasing American Wages and Benefits Act of 2010 (S. 2910) introduced in the Senate, and the H-2B Program Reform Act of 2009 (H.R. 4381) introduced in the House of Representatives, would establish new procedural and monetary requirements for employers that seek to hire temporary foreign workers, as well as impose stiffer penalties for noncompliance with these new requirements.

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On December 21, 2009, the President signed a Law that amends the COBRA Subsidy provision of the American Recovery and Reinvestment Act (ARRA). The Law extends the time that certain former employees may receive and may qualify for subsidized COBRA continuation coverage.

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As expected, President Obama has signed into law a bill that will enable more airline employees to avail themselves of leave under the Family and Medical Leave Act (FMLA). The Airline Flight Crew Technical Corrections Act (S. 1422) was approved by the House of Representatives by voice vote on December 1.  The Senate passed this measure on November 10.

The bill sought to close a perceived loophole in the FMLA’s hours of service requirements for pilots and flight attendants whose unconventional work schedules often failed to qualify them for FMLA leave. In order to be entitled to FMLA leave, employees must have worked for their employer for at least 12 months and for at least 1,250 hours during the previous 12-month period, which equates to at least 60 percent of a standard 40-hour work week. Under the Fair Labor Standards Act (FLSA), which is used to determine the number of hours worked for FMLA purposes, some courts have concluded that the time pilots and fight attendants spend on the job between flights and on mandatory standby do not count as “hours worked.” The new Act clarifies that that the hours pilots or flight attendants work or for which they are paid – not just those spent in actual flight – count toward the minimum hours calculation.

For more information on this new law and its implications for airline employers, see Littler’s ASAP: President Signs Bill Easing FMLA Eligibility Requirements for Airline Flight Crew by Ilyse Schuman and Peter Petesch.

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Early Monday morning, the Senate voted 60-40 to end debate on Senate Majority Leader Harry Reid’s (D-Nev.) complete set of amendments, known as the “manager’s amendment”, (pdf) to the latest version of the Senate healthcare bill, the Patient Protection and Affordable Care Act (H.R. 3590) (pdf). The party-line vote paves the way for Senate passage of the healthcare bill on Christmas Eve. This version of the healthcare overhaul bill includes an employer penalty for failing to offer coverage, tax credits for small employers that do, and a number of plan restrictions on the health insurance industry.

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On Saturday, the Senate approved by a vote of 88 to 10 the final version of the FY 2010 Defense Appropriations Bill (H.R. 3326). Embedded in this $636 billion spending measure is the contentious amendment submitted by Sen. Al Franken (D-Minn.) that restricts federal contractors and subcontractors working on large defense projects funded by the appropriations bill from requiring their employees and independent contractors to sign, as a condition of employment, agreements to arbitrate certain employment-related claims. The Senate first agreed to include a limit on arbitration in the appropriations bill in October. The House passed the amended spending bill last Wednesday.

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The Internal Revenue Service (IRS) has granted a one-year extension for amending certain defined benefit and contribution plans that are subject to minimum funding requirements to comply with the additional funding mandates provided by the Pension Protection Act of 2006 (PPA 06) and modified by the Worker, Retiree, and Employer Recovery Act of 2008 (WRERA). The deadline will be extended to the last day of the first plan year beginning on or after January 1, 2010. According to the IRS Notice 2009-97 (pdf), to be published in the December 28 Internal Revenue Bulletin, this extension applies to the deadline for amending the following:

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Sen. John Kerry (D-Mass.) has introduced legislation that would make it more difficult for employers to classify workers as independent contractors for employment tax purposes. The Taxpayer Responsibility, Accountability, and Consistency Act of 2009 (S. 2882) would revise section 530 of the Revenue Act of 1978, known as the “safe harbor” provision, which currently allows employers to designate workers as independent contractors “regardless of the worker's actual status under the common law test, unless the employer has no reasonable basis for such treatment or fails to meet certain requirements,” according to a statement issued by Sen. Kerry’s office.

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The House of Representatives voted 217 - 212 to approve the Jobs for Main Street Act of 2010 (pdf), legislation that, among other things, would extend COBRA health continuation coverage and unemployment insurance benefits. The bill would divert $75 billion from the Troubled Asset Relief Program (TARP) to fund infrastructure programs, job stabilization efforts, and emergency relief measures.

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The House of Representatives approved a defense spending bill by a vote of 395 to 34 that extends jobless benefits as well as prevents most defense contractors and subcontractors from forcing their employees or independent contractors to sign, as a condition of employment, agreements to arbitrate certain employment-related claims. The Senate approved this provision – introduced by Sen. Al Franken (D-Minn.) as an amendment to the Fiscal Year 2010 Department of Defense Appropriations Act (pdf) (H.R. 3326) – in October.

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Rep. Solomon Ortiz (D-Tex.) and Rep. Luis Gutierrez (D-Ill.) have introduced the Comprehensive Immigration Reform for America’s Security and Prosperity (CIR ASAP) Act of 2009 (H.R. 4321), an immigration overhaul bill they hope will receive serious consideration early next year. In October, Rep. Gutierrez outlined a set of core principles that he planned to include in his reform legislation. Among those principles included in the new bill are a re-vamped employment verification system, increased penalties for employer noncompliance, overhaul of the employment-based visa system, and anti-discrimination provisions.

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The U.S. Supreme Court has agreed to review the Ninth Circuit Court of Appeal’s decision in Quon v. Arch Wireless, a case with potentially important implications for private employers. As explained in prior posts, the appellate court held that the City of Ontario Police Department violated a SWAT officer’s reasonable expectation of privacy by reviewing the content of his sexually explicit text messages, even though: (1) the messages had been sent with a Department-issued pager through a service provider under contract with the Department, and (2) the Department’s formal policy informed all SWAT officers that the Department might review their text messages. In reaching that conclusion, the Ninth Circuit relied principally on a statement by the officer in charge of the text messaging program to the SWAT officer that the Department would not review his text messages if he voluntarily paid any overage charges resulting from excessive personal use.  Continue reading at Littler's Workplace Privacy Counsel blog. 

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By a vote of 57-35, the Senate approved the nearly $447 billion omnibus appropriations bill on Sunday. The House of Representatives passed this combination of six separate federal funding bills last Thursday.  The Consolidated Appropriations Act (H.R. 3288) will provide agencies including the Department of Labor (DOL), National Labor Relations Board (NLRB), and the Equal Employment Opportunity Commission (EEOC) with a substantial increase in funds for fiscal year 2010. Specifically, the bill provides $13.3 billion in discretionary funding to the DOL, $1.6 billion of which is allocated to worker safety and health initiatives. The NLRB is slated to receive $283.4 million, and the EEOC $367 million. The practical implication of this spending measure is that the affected agencies will now have the financial resources to carry out their stated plans to hire more personnel and boost their enforcement efforts. The DOL alone intends to use the funding to hire more than 600 new full-time enforcement and compliance employees at the Employment Benefits Security Administration (EBSA), Employment Standards Administration (ESA), the Occupational Safety and Health Administration (OSHA), and the Mine Safety and Health Administration (MSHA).

President Obama is expected to sign this bill into law.
 

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The House of Representatives has approved a massive consolidated spending bill that would provide increased funding for the Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), and National Labor Relations Board (NLRB), among other agencies for fiscal year 2010. The Consolidated Appropriations Act (H.R. 3288) – which combines six separate spending measures – passed by a vote of 221-202 on Thursday, with no Republican members voting in its favor. Text of the conference report for this bill and joint explanatory statements can be found here.

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Yesterday, the Senate Committee on Health, Education, Labor and Pensions (HELP) approved the nominations of Jacqueline Berrien to head the Equal Employment Opportunity Commission (EEOC), and Victoria Lipnic and Chai Feldblum to be EEOC Members. The HELP Committee also approved the nomination of P. David Lopez to be the EEOC’s General Counsel.

In a statement (pdf), HELP Committee Chairman Sen. Tom Harkin (D-Iowa) said: “At this time of challenge, Americans need committed, capable public servants working full time on their behalf,” adding, “These nominees will serve Americans by protecting workers from discrimination, facilitating public service and preserving our rich national traditions in the humanities. I am pleased to move their nominations forward.”

If the Senate confirms all three EEOC members, the remaining two seats of the five-member Commission will be filled by current Acting Chairman Stuart Ishimaru and Constance Barker, the sole Republican EEOC member. Acting Vice Chair Christine Griffin has already been confirmed to serve as the deputy director of the Office of Personnel Management (OPM). Once her successor is confirmed, she will leave the EEOC for her new position at the OPM.

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On Monday, three nursing associations officially merged to form the largest labor union for medical professionals in this country. The new National Nurses United (NNU) combines the members and financial resources from the California Nurses Association, the United American Nurses, and the Massachusetts Nurses Union. With an estimated 150,000 members, this new union will be able to wield a significant amount of influence over the medical industry and healthcare reform efforts.

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A final rule (pdf) slated for publication in tomorrow’s Federal Register will revoke the requirement that federal contractors inform employees of their rights regarding the payment of union dues or fees. On January 30, 2009, President Obama issued Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws that requires government contractors and subcontractors to post notices outlining employees’ rights under the National Labor Relations Act (NLRA). Executive Order 13496 also revokes Executive Order 13201 – Notification of Employee Rights Concerning Payment of Union Dues or Fees – issued by former President Bush on February 17, 2001. Executive Order 13201 had required that federal contractors post a notice to its employees informing them that: (1) they are not required to join or maintain membership in a labor union; and (2) that those who are not union members – but are nonetheless required to pay dues or fees pursuant to a union security agreement – can object to paying a portion of those dues or fees to support activities that are not related to collective bargaining, contract administration or grievance adjustment. The final rule deletes the portions of the Federal Acquisition Regulation (FAR) that require or refer to the union dues or fees notification requirements of the revoked Executive Order.

With respect to the mandate that contractors post notices outlining an employee’s rights under federal labor laws, the Department of Labor (DOL) in August issued a proposed rule that describes what these notices should include, which entities are covered, and explains the sanctions, penalties, and other remedies that may be imposed in the event of noncompliance. A final rule on these requirements has not yet been issued.

This entry was written by Ilyse Schuman.

Photo credit:  Boris Yankov

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Today, the Supreme Court released its opinion in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers And Trainmen General Committee of Adjustment, Central Region (pdf), which involved the ability to challenge a final decision by the National Railroad Adjustment Board (NRAB) under the Railway Labor Act (RLA). The Court declined to answer whether a final decision by the NRAB could be set aside for an alleged due process violation, instead affirming the Seventh Circuit’s granting of relief to the union challenging the NRAB’s dismissal of its arbitration petition on statutory grounds.

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The Equal Employment Opportunity Commission (EEOC) has identified three proposed and four final rules that will dominate the agency’s regulatory activities for the coming year, according to its Semiannual Regulatory Agenda (pdf) released online yesterday. Of the seven regulations at issue, the EEOC’s Regulatory Plan (pdf) singles out the regulation at the final rule stage to implement the equal employment provision of the Americans with Disabilities Act Amendments Act (“ADAAA” or “ADA Amendments Act”), and the regulations defining Reasonable Factors Other than Age (RFOA) under the Age Discrimination in Employment Act (ADEA) at the proposed rule stage as the most important significant regulatory actions the agency will take.

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The Department of Homeland Security (DHS) has released its Semiannual Regulatory Agenda (pdf) for the coming year. Rules addressing the H-1B lottery process and I-9 forms are among the Agency’s regulatory priorities. According to the agency’s Fall 2009 Regulatory Plan (pdf), a subset of the Agenda which details the regulatory measures the DHS deems most important, the following actions, among others, are slated to take place within the next 12-month period:

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As we reported on November 3 and 4, the National Mediation Board's (NMB) notice of proposed rule making (NPRM) seeking to change the 75-year old process by which union votes are counted in union representation elections under the Railway Labor Act (RLA) is moving full-steam ahead. Members of Littler Mendelson's transportation industry practice group attended the NMB's December 7, 2009 open meeting regarding the NPRM. Chairman Elizabeth Dougherty, Members Harry Hoglander and Linda Puchala, General Counsel Mary Johnson, and Associate General Counsel Kate Dowling were present, and interested parties had the opportunity to present their views on the proposed change to NMB election procedures. The NMB officials did not ask or answer questions or otherwise comment on any of the presentations.

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The Department of Labor (DOL) has released its semiannual regulatory agenda (pdf), which lists all of the regulations the agency expects to have under active consideration for promulgation, proposal, or review during the coming one-year period. The DOL also published its Fall 2009 Regulatory Plan (pdf), a subset of the agenda, which details the agency’s regulatory priorities and actions deemed most important and significant. In video remarks posted on the DOL’s website, Secretary of Labor Hilda Solis stated that the agency is proposing 90 rules to the 2010 regulatory agenda, and outlined the following highlights:

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On Thursday, the Senate confirmed the nomination of David Michaels to serve as the Assistant Secretary of the Department of Labor’s Occupational Safety and Health Administration (OSHA). President Obama named Michaels as his pick in July. The Senate Health, Education, Labor and Pensions (HELP) Committee approved his nomination on November 18.

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The DOL’s Employee Benefits Security Administration (EBSA) has posted on its website new guidance regarding the COBRA health insurance premium subsidy granted by the American Recovery and Reinvestment Act of 2009 (“ARRA” or “Economic Stimulus”). Under ARRA’s COBRA provisions, the government provides certain qualifying unemployed workers with a 65 percent subsidy of their health insurance premiums for up to nine months. Those individuals who first became eligible to receive this subsidy will begin to lose their coverage starting this month.

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On Tuesday, the National Labor Relations Board (NLRB) released its year-end report detailing its summary of operations for fiscal year 2009. A copy of this report can be downloaded from the agency’s press release (pdf) on this subject. According to this report, while the agency’s caseload remained steady, union representation election petitions dropped dramatically from the previous year, while unfair labor practices increased slightly. Specifically, the total number of unfair labor practice (ULP) charges and representation petitions filed for FY 2009 came to 25,853, compared to 25,901 in FY 2008. Of the overall case intake, unfair labor practice case intake was 22,941, a 1.96 percent increase from the previous year. However, the total intake for representation cases this year equaled 2,912, a 14.4 percent decline from the previous year’s tally of 3,400. In addition, the NLRB conducted 1,690 initial representation elections in FY 2009, 395 fewer than in 2008, amounting to a nearly 19 percent decrease. The drop in petitions is likely due, at least in part, to the proposed Employee Free Choice Act (EFCA), which, if enacted as currently written, would make it substantially easier for unions to be certified as the employees’ collective bargaining representative. It is possible that unions are holding out hope for EFCA’s passage before initiating any new organizing drives.

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The Department of Labor’s Office of Federal Contract Compliance Programs’ (OFCCP) newest Corporate Scheduling Announcement Letter (CSAL) (pdf) indicates for the first time that companies could be subject to an unlimited number of compliance audits per year. The CSAL is intended as a courtesy notice to federal contractors that have at least two facilities that the OFCCP has identified for possible compliance evaluations in the coming fiscal year. The new letter states that “there will be no limit on the number of new compliance evaluations of your company’s facilities that the OFCCP will conduct during a fiscal year.” In the past, the OFCCP limited itself to initiating a yearly maximum of 25 establishment audits per employer.

According Alissa Horvitz, Co-Chair of Littler’s OFCCP Practice Group:

OFCCP is signaling that if it discovers compliance lapses or systemic discrimination at one location, it does not want to be limited in its ability to investigate whether those same concerns exist elsewhere in the company, raising the stakes for all government contractors to be proactive in evaluating their policies, practices, and records in advance of receiving the audit scheduling letter.

This entry was written by Ilyse Schuman.

Photo credit:  Jostaphot

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A bill that would close a Family and Medical Leave (FMLA) loophole for airline pilots and flight attendants is a step closer to becoming law. On Tuesday, the House of Representatives passed the Airline Flight Crew Technical Corrections Act (S. 1422) by voice vote. The Senate approved this largely uncontroversial measure last month. This legislation would change the hours of service requirements to enable more airline industry employees to qualify for FMLA leave.

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According to the Department of Labor’s Office of the Inspector General (OIG), for the six-month period ending on September 30, 2009, the OIG’s investigative work led to 214 indictments, 221 convictions, and $123.1 million in monetary accomplishments. The OIG’s Semiannual Report to Congress (pdf) is designed to evaluate the “effectiveness, efficiency, economy, and integrity of the DOL’s programs and operations,” and make legislative recommendations to achieve the agency’s goals.

As a result of its auditing activities, the OIG found fault with the DOL’s new iCert system, which is designed to identify inaccuracies in H-1B labor condition applications (LCAs) for foreign workers. The OIG determined that because there were instances of missing electronic checks, manual reviews of the LCAs by analysts are necessary. This process, however, increases the volume of applications, which the OIG claimed may result in analysts not being able to perform a 100 percent review, thus increasing the risk of LCAs being improperly certified. In addition, the OIG identified vulnerabilities and fraud in the DOL’s foreign labor certification (FLC) program.

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The Congressional Budget Office (CBO) yesterday released a report: An Analysis of Health Insurance Premiums Under the Patient Protection and Affordable Care Act (pdf) that focuses on the impact the Senate healthcare bill would have on health insurance premiums. Specifically, the analysis examined the average effects of the Patient Protection and Affordable Care Act (H.R. 3590), as proposed by Senator Reid (D-Nev.), on premiums in 2016 for coverage purchased individually, coverage purchased by small employers, and coverage provided by large employers.

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The Occupational Safety and Health Administration (OSHA) has released a new guidance document, Best Practices for Protecting EMS Responders During Treatment and Transport of Victims of Hazardous Substance Releases (pdf), designed to help employers protect emergency medical service (EMS) workers in situations involving the release of hazardous substances. According to a press release, the compliance guide helps employers determine the type of training and personal protective equipment (PPE) needed in emergency situations by anticipating the EMS responder's role in a worst-case scenario, identifying hazards associated with the responder's assigned duties, and developing an emergency response plan detailing safe accomplishment of those duties.

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The U.S. Department of Labor (DOL) has released an updated version of its Employment Law Guide, an online resource that outlines the major statutes and regulations administered by the DOL that affect the workplace. The Guide is a companion to FirstStep Employment Law Advisor, an interactive information tool provided by the DOL that allows employers to see which laws apply to them. The updated guide reflects changes to the federal minimum wage and addresses the enhanced military family and medical leave entitlements recently provided by the National Defense Authorization Act.  In addition, the Guide includes a section on child labor regulations in the agriculture industry and one on the Defense Base Act, which provides workers' compensation benefits to civilian employees working outside the United States on U.S. military bases or under certain contracts with the U.S.

In a statement, Labor Secretary Hilda Solis said: “Fair and safe practices in the workplace are a top priority for the Department of Labor, and we want to make it simple for both employers and workers to understand the federal policies that protect them,” adding “Our new Employment Law Guide provides updated and user-friendly information and guidance. We encourage everyone to use it.”

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