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

A 26-page outline (pdf) of a new proposed immigration overhaul bill would require all employers to use a newly-created Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment (BELIEVE) System as a means of verifying employee work authorization. Within 18 months of the proposed bill’s enactment, the Social Security Administration (SSA) would be required to issue biometric social security cards, which within five years would serve as the only acceptable document employers could use for employment verification purposes. The proposal also calls for a 300 percent increase in monetary fines against employers that knowingly hire illegal workers, and enhanced civil and criminal penalties against employers that engage in egregious labor violations involving unauthorized workers.

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Buried in the Restoring American Financial Stability Act of 2010 (S. 3217), the massive financial reform bill currently under Senate scrutiny, are provisions governing shareholder input on executive compensation and compensation committee independence. The so-called “say-on-pay” provisions would provide for a shareholder vote on executive compensation disclosures, and require that each member of the company’s compensation committee be an independent member of the board of directors.

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During a recent Q&A session on the Department of Labor’s semiannual regulatory agenda, Deputy Administrator of the Wage and Hour Division (WHD) Nancy Leppink highlighted the agency’s plans to revise the Fair Labor Standards Act’s (FLSA) recordkeeping requirements, and the rules governing the employment of workers who provide companionship services. If approved and implemented, both of these regulatory measures would result in significant changes.

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Service Employees International Union’s (SEIU) secretary-treasurer, Anna Burger, has withdrawn her candidacy for union president, all but ensuring that Mary Kay Henry, an international executive vice president, will take the helm. On April 14, long-time president Andy Stern announced his retirement.  Burger acknowledged that she lacked the votes from SEIU’s executive vice presidents to win the election, slated for May 8, and vowed to work with Henry “to make sure that this is a smooth transition and that our union will continue to help our members do extraordinary things.” In her announcement to withdraw from the race, Burger denied that the support for Henry amounted to a “shift in SEIU’s priorities” or a "rejection of the Stern/Burger agenda.”

Henry has been an employee for the SEIU since 1979 and was elected as an international executive vice president in 2004. Much of Henry’s career with the SEIU has focused on promoting union membership for health care workers.

Photo credit:  SEIU.org

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The U.S. Supreme Court has held that the Federal Arbitration Act (FAA) does not authorize arbitrators to impose class arbitration on parties to a dispute when the arbitration agreement itself is silent on the matter. In Stolt-Nielsen SA v. AnimalFeeds International Corp. (pdf) the Court found that an arbitration panel exceeded its powers under the FAA by permitting class arbitration on public policy grounds instead of identifying and applying an appropriate rule of law applicable to the situation. The Court reasoned that parties cannot be compelled to submit to class arbitration unless they have contractually agreed to do so.

For more information on this decision and its implications for employment agreements with arbitration provisions, see Littler’s ASAP: Supreme Court Rules Class Action Arbitrations Impermissible Absent Express Agreement by Henry D. Lederman.

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On Wednesday, the House Workforce Protections Subcommittee held a hearing on the whistleblower and victim's rights provisions contained in the Protecting America’s Workers Act (PAWA) (H.R. 2067), a measure introduced by Rep. Lynn Woolsey (D- CA), chair of the subcommittee, last April. A companion bill (S. 1580) was introduced in the Senate by the late Sen. Ted Kennedy (D-MA) in August 2009. This bill would amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations, among other significant changes. The hearing on Wednesday focused on the bill’s provisions that would strengthen workplace whistleblower protections, and would give injured workers, their families and families of workers who died in work-related incidents the right to meet with investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations.

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According to the Equal Employment Opportunity Commission’s (EEOC) semiannual regulatory agenda, final rules on Title II of the Genetic Information Nondiscrimination Act (GINA) and the employment provisions of the Americans With Disabilities Act Amendments Act (ADAAA) are imminent. The EEOC intends to issue a final rule on GINA sometime next month. Title II prohibits the use of genetic information in making employment decisions and limits employer access to genetic information, as well as imposes certain confidentiality obligations. The EEOC issued a proposed rule in March 2009. The final rule has already been sent to the Office of Management and Budget (OMB) for review.

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The Occupational Safety and Health Administration (OSHA) has released the final version of its Severe Violator Enforcement Program (SVEP), (pdf) the much-anticipated enforcement plan that will subject employers to more significant enforcement measures and penalties for willful, repeat, and failure-to-abate violations of the OSH Act. Such enforcement actions for severe violator cases include mandatory follow-up inspections, increased company/corporate awareness of OSHA enforcement, corporate-wide agreements where appropriate, enhanced settlement provisions, and federal court enforcement. The SVEP replaces the agency’s Enhanced Enforcement Program (EEP).

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On Monday, the Department of Labor (DOL) published in the Federal Register its Semiannual Regulatory Agenda. (pdf)  This document sets forth the regulations the agency intends to review or develop in the next 12 months. According to the summary of the agenda, the DOL’s “agencies have carefully assessed their available resources and what they can accomplish in the next 12 months and have adjusted their agendas accordingly.” Highlights of the agenda include the following:

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Legislation introduced in both the House and Senate would impose new record-keeping requirements on employers that hire independent contractors, and impose stricter penalties for misclassification. Introduced by Rep. Lynn Woolsey (D-CA) and Sen. Sherrod Brown (D-OH), the Employee Misclassification Prevention Act (H.R. 5107, S. 3254) would amend the Fair Labor Standards Act (FLSA) to require employers to keep records on and notify workers of their employment or independent contractor classification and their right to challenge that classification. In addition, the measure would do the following, among other things:

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The Department of Labor’s Wage and Hour Division (WHD) has issued a fact sheet to help for-profit private sector employers determine whether they need to pay their interns minimum wage and overtime under the Fair Labor Standards Act (FLSA). As noted in the fact sheet, internships and training programs in the private sector are often considered “employment” subject to overtime and minimum wage requirements unless the intern works for his or her own educational benefit. In order to qualify for this limited exception, the internship must meet a six-factor test:

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On Thursday, the House Committee on Education and Labor held a subcommittee hearing on the Work-Life Balance Award Act (H.R. 4855), legislation introduced by Reps. Lynn Woolsey (D-CA) and George Miller (D-CA) that would establish an award for employers that develop and implement work-life balance policies, defined in the bill as workplace practices “designed to enable employees to achieve a satisfactory work-life balance.” The measure would direct the Department of Labor (DOL) to create a work-life balance advisory board to develop criteria that employers would need to meet in order to qualify and apply for the award.

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President Obama has issued a proclamation establishing April 20 as “National Equal Pay Day.” This day is meant to symbolize “the day when an average American woman's earnings finally match what an average American man earned in the past year.” In a statement supporting Equal Pay Day, Labor Secretary Hilda Solis called for passage of the Paycheck Fairness Act (H.R. 12, S. 182), legislation that cleared the House of Representatives “and is gaining momentum in the Senate.” This measure would expand damages under the Equal Pay Act of 1963 to include potentially unlimited compensatory and punitive awards. In addition, it would amend the broad affirmative defense previously available to employers that the pay differential in question is caused by a factor other than sex. The bill would also eliminate the “establishment” requirement that employees must work in the same place of employment for wage comparison purposes.

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On Tuesday, Victoria Lipnic was sworn in as a member of the Equal Employment Opportunity Commission (EEOC), making the five-member Commission complete for the first time in nearly two years. EEOC Chair Jacqueline Berrien and Commissioner Chai Feldblum were sworn in earlier this month, joining current members Stuart Ishimaru and Constance Barker. Lipnic, the Republican nominee to the EEOC, was one of 15 recess appointments President Obama made over the spring legislative recess.

Before her appointment to the EEOC, Lipnic practiced management-side labor and employment law. Prior to 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.

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The Department of Health and Human Services (HHS) has announced the creation of the Office of Consumer Information and Insurance Oversight, a new division that will provide “leadership for implementing the provisions of the health reform bill that address private health insurance.” A notice (pdf) published in the Federal Register identifies the components of this new division and a brief description of the main responsibilities of each office within the division.  Continue reading this entry on Littler's Healthcare Employment Counsel blog. 

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The U.S. Supreme Court has agreed to decide when employers can be held accountable for company officials who cause or influence the outcome of an adverse employment action, but do not themselves make that decision. The case, Staub v. Proctor Hospital (09-400), will therefore resolve conflicting opinions from several circuit courts of appeal regarding when employers may be held liable for the unlawful motives and actions of an official other than the formal decision maker, often referred to as the “cat’s paw” theory of imputed liability.

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Update: This entry has been updated to reflect that the bill was signed into law.

Late Thursday night, President Obama signed into law legislation that provides another temporary extension of emergency unemployment insurance (UI) benefits and the 65% premium COBRA subsidy, both of which lapsed over the recent legislative recess.  Hours earlier, the Senate voted 59-38 to pass the Continuing Extension Act of 2010 (H.R. 4851) with an amendment (S. Amt. 3721) (pdf) in the nature of a substitute bill introduced by Sen. Max Baucus (D-MT), which will extend UI benefits through June 2, 2010, and premium COBRA assistance through May 31, 2010. The original bill – which cleared the House by voice vote on March 17 but stalled in the Senate over how the measure would be paid for – provided for extensions of these benefit programs through May 5 and April 30, respectively.  Shortly after Thursday's Senate vote, the House approved the bill by a 289-112 margin. 

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The Department of Labor (DOL) has launched a website compiling enforcement data produced by the Office of Federal Contract Compliance Programs (OFCCP), Employee Benefits Security Administration (EBSA), Occupational Safety and Health Administration (OSHA), Wage and Hour Division (WHD), and the Mine Safety and Health Administration (MSHA). Searchable compliance data includes OFCCP compliance evaluations and complaint investigations, EBSA cases that resulted penalty assessments, OSHA inspection case details, and concluded WHD compliance actions, among other information. The DOL explains that the purpose of the enforcement website is “to make the enforcement data, collected by these agencies in the exercise of their mission, accessible and searchable, using common search criteria, by the public. It intends, also, to engage the public in new and creative ways of using this data.” The DOL further notes that the site is a work in progress, and that “new features, functionality, and search criteria will be added over time.” For example, the agency is working on making enforcement data searchable by company name and address, as well as other criteria.

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Update:  This entry has been updated to reflect Stern's official retirement announcement.

Service Employees International Union (SEIU) President Andy Stern announced his retirement on April 14. Stern, who has served in this capacity since 1996, has been a controversial labor figure, having led the departure of several major unions from the AFL-CIO to form the labor affiliate Change to Win in 2005. Stern also was instrumental in the breakup of UNITE HERE, which had been created by the merger of HERE, representing workers in the hotel and food service industries, and UNITE, which organized workers in the textile and apparel industries. The resulting split left some members to form the competing Workers United union, which subsequently affiliated with the SEIU. The remaining members of UNITE HERE, which included mostly former HERE members, rejoined the AFL-CIO.

Stern has led the SEIU to be the fastest-growing labor union in the United States. Although it is uncertain who will permanently replace Stern, a recent New York Times article speculates that SEIU Secretary-Treasurer Anna Burger will take the helm. Burger is also Chair of Change to Win, and will serve as interim president until the SEIU's International Executive Board votes on a successor within the next 30 days.  Other possible candidates include Mary Kay Henry, SEIU’s Executive Vice President.

Photo credit:  SEIU

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In tomorrow’s edition of the Federal Register, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) will publish a proposed rule (pdf) implementing Executive Order (EO) 13494, Economy in Government Contracting, which precludes government contractors from being reimbursed for expenses incurred to influence employees regarding their decisions to form unions or engage in collective bargaining. Issued on January 30, 2009, EO 13494 considers as un-reimbursable any activities that are undertaken to persuade employees to exercise or not exercise such rights, such as preparing and distributing materials, hiring or consulting legal counsel or consultants, holding meetings (including paying the salaries of the attendees at meetings held for this purpose) and planning or conducting activities by managers, supervisors or union representatives during working hours. Such expenditures are deemed “unallowable” under any federal government contract by the order. Although federal contractors cannot use federal funds for these purposes, they may use federal dollars to “maintain satisfactory relations” between the contractor and its employees. As stated in the order, such expenditures could include the cost of labor-management committees, employee publications (provided they do not attempt to persuade employees regarding unionization), and other related activities.

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After a two-week legislative recess, the Senate voted 60-34 on Monday to limit debate on the Continuing Extension Act of 2010 (H.R. 4851), a bill that would temporarily extend the 65 percent premium COBRA subsidy until April 30, 2010, and emergency unemployment insurance benefits until May 5, 2010. This measure cleared the House of Representatives by voice vote on March 17, but hit a stumbling block in the Senate when Sen. Tom Coburn (R-OK) objected to the fact that the cost of the bill was not fully offset. The Senate therefore failed to approve this emergency measure before the recess, allowing the UI and premium COBRA benefits to expire during the break. A final vote is not expected until later this week.

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During a recent live Q&A session, several officials from the Occupational Safety and Health Administration (OSHA) indicated that the agency plans to increase its enforcement efforts, including using the general duty clause to address ergonomic issues in the workplace. Participants in the chat included David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, and Deputy Assistant Secretary Jordan Barab. Other OSHA officials were on hand to discuss OSHA’s Strategic Planning Overview, which covers the agency’s mission, strategic goals and objectives, and general strategies for FY 2010 through FY 2016.

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In tomorrow’s edition of the Federal Register, the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) will publish a final rule (pdf) implementing President Obama’s Executive Order (EO) encouraging the use of Project Labor Agreements (PLAs). Issued on February 6, 2009, EO 13502: Use of Project Labor Agreements for Federal Construction Projects declares it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .” Specifically, this EO states:

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The Internal Revenue Service (IRS) has made available Form W-11 (pdf), the Hiring Incentives to Restore Employment (HIRE) Act Employee Affidavit employees are to use confirm that they are “qualified” employees under the HIRE Act. An employer seeking to benefit from the HIRE Act’s payroll tax holiday or retention tax credit must have employees complete form W-11 or a similar form to attest that they began employment after February 3, 2010, and before January 1, 2011; have not been employed for more than 40 hours during the 60-day period ending on the date they begin employment with the employer seeking the HIRE Act benefits; are not being employed to replace another employee unless the other employee separated from employment voluntarily or for cause (including downsizing); and are not related to the employer seeking the tax benefit.

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The National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) moved a step closer to full capacity this week when Craig Becker and Mark Pearce were sworn in as NLRB members, and Jacqueline A. Berrien and Chai Feldblum assumed their positions as Chair and Commissioner, respectively, at the EEOC. These individuals were among the 15 recess appointments made over the recent legislative break.

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The Department of Labor’s (DOL) Wage and Hour Division (WHD) has created a website as part of its “We Can Help” public awareness campaign that provides information to workers on how to file a complaint to recover back wages, learn more about the worksite investigation process, and obtain general information about workplace rights and the DOL’s services. According to a press release, the campaign is specifically targeting employees in such industries as construction, janitorial work, hotel/motel services, food services and home health care.

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The Internal Revenue Service (IRS) has set up a website to provide employers with guidance on the payroll tax exemption and business credit provisions of the newly-enacted Hiring Incentives to Restore Employment (HIRE) Act.  This Act, among other things, relieves certain employers from their obligation to match the OASDI (Social Security) portion (typically 6.2% on the first $106,800 of wages for the calendar year) of FICA tax for certain workers hired after February 3, 2010, and before January 1, 2011, who have been substantially unemployed for at least 60 days. The IRS has created a draft model affidavit (Form W-11) (pdf) for employees to certify their un- or underemployment status, although employers may use their own form. This tax holiday covers wages paid to these employees on or after March 19, 2010 and only through 2010, and does not apply to the FICA tax portion covering the Medicare Hospital Insurance contribution nor to other state and federal employer tax obligations. The HIRE Act also creates a similar tax holiday for employers covered by the Railway Retirement Act instead of FICA. A business (tax) credit of up to $1000 is available to certain employers in 2011, with respect to employees retained for at least 52 weeks.

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The Equal Employment Opportunity Commission’s (EEOC) Office of Legal Counsel recently made available two informal discussion letters addressing how two common and seemingly innocuous hiring practices could, under certain circumstances, inadvertently subject employers to charges of disparate impact discrimination. Although these advisory letters are intended as informal discussions of the specific issues only, they should serve as warnings to employers to double-check their use of credit checks and education degrees as selection criteria.

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On Wednesday, President Obama, First Lady Michelle Obama and the White House Council on Women and Girls hosted a White House Forum on Workplace Flexibility attended by policy experts, workers, senior administrative officials, and members of the business and labor communities to discuss ways to make the workplace more flexible for working families. Before one of a series of breakout sessions, President Obama offered praise for companies that offer telecommuting, flextime, compressed work weeks, job sharing, flexible start and end times, and help for their employees to find quality childcare and eldercare. With respect to how flexible policies impact companies’ bottom lines, Obama noted that the report (pdf) released that day by the White House Council of Economic Advisers “found that companies with flexible work arrangements can actually have lower turnover and absenteeism, and higher productivity, and healthier workers.”

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