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

The newly-enacted Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203) contains a provision that will impose diversity requirements on businesses in the financial industry. Section 342 of the bill mandates that within six months various federal agencies that deal with financial firms, such as the Treasury Department and the Securities and Exchange Commission, establish an Office of Minority and Women Inclusion (OMWI). The director of each such office will be charged with, among other things, developing and implementing standards for ensuring “to the maximum extent possible, the fair inclusion and utilization of minorities, women, and minority-owned and women-owned businesses in all business and activities of the agency at all levels, including in procurement, insurance, and all types of contracts.”

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This week, Rep. Linda Sanchez (D-CA) introduced legislation that would extend the federal minimum wage and overtime protections of the Fair Labor Standards Act (FLSA) to most home care workers, improve federal and state data collection and oversight with respect to the direct care workforce, and create a grant program to help states recruit and train direct care workers. Specifically, the Direct Care Workforce Empowerment Act (H.R. 5902) would limit the “companionship services” FLSA exemption to those who work 20 or fewer hours per week.

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The Occupational Safety and Health Administration (OSHA) has issued new regulations (pdf) addressing the safety of cranes and derricks in the construction industry. The rule updates and specifies industry work practices regarding the use of cranes and derricks, and also “addresses advances in the designs of cranes and derricks, related hazards, and the qualifications of employees needed to operate them safely.” According to an OSHA press release, approximately 267,000 construction, crane rental and crane certification establishments employing about 4.8 million workers will be affected by the rule.

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On Tuesday, supporters of the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act (S. 3628) failed to gain sufficient votes to advance the measure in the Senate. By a vote of 57-41, the motion to invoke cloture on the bill fell short of the 60 votes necessary to end debate. This campaign finance legislation would require most organizations to report to the Federal Election Commission (FEC) the origins of the funds used for political advertising, and place strict limits on political spending by most federal contractors and foreign-controlled companies. This bill was introduced in response to the Supreme Court’s decision in Citizens United v. FEC released earlier this year that eased the ban on corporate and union political spending by holding that such restrictions are unconstitutional.

Last month, the House of Representatives narrowly cleared its version of the bill (H.R. 5175) by a 219-206 margin. Provisions in this draft seen as carving out exceptions for labor unions had drawn heavy fire from the business community. While the Senate version removed some of the offending provisions, it still includes sections that limit spending by companies with significant federal contracts or a high percentage of foreign investors, restrictions that largely do not affect labor unions.

Photo credit:  MBPHOTO, INC.

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Late last week, the Senate rejected advancing the supplemental appropriations bill approved by the House of Representatives (H.R. 4899).  The House-passed version of the bill included an amendment (pdf) providing public safety employees with collective bargaining rights. Specifically, the amendment incorporated provisions of the Public Safety Employer-Employee Cooperation Act (PSEECA) (H.R. 413; S. 1611, 3194), which would have provided firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them, establish minimum standards for collective bargaining rights for these groups, and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. The House tacked on this provision, in addition to other domestic spending measures, before it approved the bill on July 1. It is not surprising that the Senate rejected this amended version, considering last May, Sen. Majority Leader Harry Reid (D-NV) had also introduced the PSEECA as an amendment to the Senate’s appropriations bill, but withdrew it shortly thereafter. It is likely that the House will take up the Senate-approved war appropriations bill that does not contain the additional spending measures before Congress adjourns for the August recess.

Given that the standalone bill has little chance of advancing this legislative term, lawmakers in the House likely included the PSEECA in the larger spending bill to increase its odds of passing.

Photo credit:   MBPHOTO, INC.

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The House of Representatives approved by an overwhelming 413-4 margin legislation that would make it easier for employers to conduct background checks on employees who supervise, educate, or otherwise provide care for children. The Child Protection Improvements Act (H.R. 1469) would, among other things, make permanent the Child Safety Pilot Program created in 2004 by the PROTECT Act. This program established a nationally accessible fingerprint-based criminal history background check system for volunteers and employees of youth-serving organizations.

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The Department of Labor’s Wage and Hour Division (WHD) has released a fact sheet to help employers comply with the lactation break time obligations established by the new health care law. The Patient Protection and Affordable Care Act (“Affordable Care Act”) amends section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide rest breaks and suitable space for employees who are nursing mothers to express breast milk for up to one year after the child’s birth.

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On Wednesday, the House Committee on Education and Labor voted 30-17 to approve the Robert C. Byrd Miner Safety and Health Act of 2010 (H.R. 5663), (pdf) legislation that – in addition to addressing mine safety – would significantly increase employer civil and criminal penalties for violations of the Occupational Safety and Health (OSH) Act, strengthen whistleblower protections and provide greater rights for victims of accidents and their family members to participate in proceedings under the OSH Act. The bill also would require employers, upon receipt of a citation, to abate the alleged violation and establish a process for a Motion to Stay abatement wherein the employer would have to meet the preliminary injunction standard of proving "substantial likelihood of success" in defeating the citation.

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Employers using E-Verify to authenticate employees’ work authorization status are subject to the Three-Day Rule, which requires an employer to create an E-Verify case no later than three business days after an employee first works for pay (commonly referred to as the Hire Date). Confusion sometimes arises, however, because the Hire Date differs depending on whether the E-Verify case is created before or after the first day an employee works for pay. To clarify the matter, United States Citizenship and Immigration Services (USCIS) created a webpage explaining how to determine the Hire Date, and how to calculate the compliance deadline.  Continue reading this entry at Littler's Global Immigration Counsel blog. 

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The Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173) contains some surprising provisions. Safety and health professionals should note that MSHA reporting obligations for any covered entity that is a mine operator, or has a subsidiary that is a mine operator, of a “coal or other mine", are included.

In each periodic report that is filed with the Securities and Exchange Commission (SEC), the company will be required to report the following mine safety data in all periodic reports:

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During the White House Middle Class Task Force forum on work and family issues, the White House and various members of the administration called for passage of the Paycheck Fairness Act (H.R. 12, S. 182), equal pay legislation that cleared the House of Representatives in January 2009. Specifically, this measure would, among other things, expand damages under the Equal Pay Act of 1963 to include potentially unlimited compensatory and punitive awards, amend the broad affirmative defense previously available to employers that the pay differential in question is caused by a factor other than sex, and would eliminate the “establishment” requirement that employees must work in the same place of employment for wage comparison purposes.

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The U.S. Department of Health and Human Services (HHS) published on July 14, 2010, a voluminous Notice of Proposed Rulemaking (NPRM), containing dozens of proposed amendments to three sets of Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulations: the Privacy Rule; the Security Rule; and the Enforcement Rule. The proposed amendments are directed principally at implementing the Health Information Technology for Economic and Clinical Health Act (HITECH Act), which amended HIPAA and went into effect on February 17, 2010. A careful review of the NPRM for its impact on employers who sponsor HIPAA-covered plans reveals that, if the proposed changes were adopted, employers would be required to revise their business associate agreements, their HIPAA notice of privacy practices, and their policies for responding to access requests. The NPRM also provides employers with a roadmap for avoiding civil monetary penalties. To learn more about the NPRM and its implications for employers, please continue reading Littler's ASAP, What Do Employers with HIPAA-Covered Health Plans Really Need to Know About Recently Proposed Revisions to HIPAA Regulations?, by Philip L. Gordon.

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On Wednesday, the House of Representatives approved a bill that will extend unemployment insurance benefits through November, and make such benefits retroactive to June 2. The Senate similarly approved this bill on Tuesday by a 59-39 margin. The version of the American Jobs and Closing Tax Loopholes Act (H.R. 4213) (pdf) that cleared both chambers is a significantly scaled-back draft that did not contain a number of extensions to other tax benefit programs. The limited bill that will likely be signed into law today will do the following:

• Extend the Emergency Unemployment Compensation (EUC) program through November 2010, and apply its benefits retroactively to June 2. Depending on a state’s unemployment rate, the program provides up to 53 weeks of extended benefits.
• Continue the Extended Benefits (EB) program through November 2010. This program, which expired in May, provides up to an additional 13 weeks of benefits in states with unemployment rates at or exceeding 6.5 %, and up to 20 weeks of benefits in states with unemployment rates at or above 8 %.
• Eliminate the penalty for part-time employment in the EUC program. The bill would coordinate EUC benefits with regular benefits by providing states with a number of options to allow EUC claimants to remain eligible for the EUC program when they become newly entitled to state unemployment compensation, if switching to state benefits would reduce their weekly UI check by at least $100 or  25 %.

Photo credit:  MBPHOTO, INC.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) will issue an Advance Notice of Proposed Rulemaking (ANPRM) (pdf) to invite public comments as to how the agency can strengthen the affirmative action requirements relating to Section 503 of the Rehabilitation Act. As discussed in the ANPRM, Section 503 requires covered federal contractors to:

• employ nondiscriminatory employment practices;
• provide reasonable accommodations to qualified job applicants and employees with disabilities;
• after a job offer is extended but before employment begins, invite job applicants to voluntarily and confidentially self-identify as to whether or not they have a disability in order to benefit from any affirmative action programs covered contractors may have;
• maintain personnel and employment records; and
• for those contractors and subcontractors with 50 or more employees and a contract of $50,000 or more, develop and maintain a written affirmative action program (AAP).

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On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173) (the "Act"), which is intended "to promote the financial stability of the United States by improving accountability and transparency in the financial system" and "to protect the American taxpayer by ending bailouts, to protect consumers from abusive financial services practices, and for other purposes." While the Act is directed at the financial system, it incorporates broad executive compensation provisions that apply beyond the financial services industry. Publicly-traded companies need to understand and prepare for these new requirements. Included in Subtitle E of Title IX – Accountability and Executive Compensation ("Subtitle E") – of the Act are laws generally related to executive compensation practices of publicly-traded companies and certain financial institutions. The laws enacted under Subtitle E amend the Securities Act of 1933 and Securities Exchange Act of 1934 (the "Exchange Act"), and also direct the Securities Exchange Commission (SEC) and certain other Federal Regulators to adopt rules consistent with the new law.  Continue reading about this development in Littler's ASAP:  Executive Compensation and the Wall Street Reform and Consumer Protection Act by Nick Linn, Ilyse Schuman, and Ellen Sueda. 

Photo credit:   MBPHOTO, INC.
 

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The newly-enacted Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173) contains sweeping new provisions which create new whistleblower protections for employees in the financial services industry. These enhanced protections, among other things, create a new incentive program to encourage individuals to report Securities Exchange Act violations; allow aggrieved employees to bring a civil action in court; and establish a more stringent burden-shifting approach to certain whistleblower claims. The new law also includes provisions that impact mandatory pre-dispute employment arbitration agreements of whistleblower retaliation claims. Finally, the new law amends other statutes like Sarbanes-Oxley and the False Claims Act to provide broader protection to whistleblowers. Additional information on existing whistleblower laws is available in the national treatise entitled “Retaliation and Whistleblowing: A Guide for Human Resources Professionals and Counsel” (3rd edition 2010) by Littler Shareholder Greg Keating.

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The Air Transport Association of America (ATA) has filed a notice of appeal in its lawsuit challenging the National Mediation Board’s (NMB) new controversial election rule. (pdf)  On June 25, the United States District Court for the District of Columbia granted the NMB’s motion for summary judgment and denied the ATA’s motion to preliminarily block the NMB from implementing its rule that overturns the election procedure that has been in place for 75 years. Specifically, the new rule makes it easier for workers in the airline and railroad industries to unionize by basing the voting results on the majority of those who actually vote, as opposed to allowing the majority of employees eligible to vote to determine the outcome.

On May 17, the ATA filed suit challenging this new rule on the grounds that – among other reasons – the NMB’s decision to change the established procedure was done without legitimate justification, and was thus “arbitrary, capricious [or] an abuse of discretion.” In addition, the ATA avers that the decision to deviate from the longstanding rule was predetermined and did not take into consideration the concerns raised by the industry and by NMB Chair Elizabeth Dougherty, who herself deemed the rule to be “the most dramatic policy shift in the history of the agency.”

For more information on this development, see Littler’s ASAP: District Court Clears Way for Implementation of New NMB Rules for Union Elections in Air and Rail Industries by Jack Lambremont and Chip McWilliams.

Photo credit:  ericsphotography
 

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On Tuesday, the Senate voted 60-40 to move forward with the Unemployment Compensation Extension Act of 2010 (H.R. 4213), (pdf) legislation that would, among other things, extend federal unemployment insurance benefits through November 2010, and retroactively reinstate the unemployment benefits program that expired in May. Senator Carte Goodwin (D-WV), who was sworn in as the interim replacement for the late Senator Robert Byrd (D-WV), provided the additional vote necessary to advance the bill. These measures were initially included in a much more expansive tax extender bill that failed to gain sufficient support in the Senate. According to a summary, (pdf) the significantly pared-down version of H.R. 4213 would do the following:

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Update:  On July 21, 2010, President Obama signed this bill into law.

On Thursday, the Senate voted 60-39 to pass the Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173), the sweeping financial overhaul legislation otherwise known as the “Wall Street” reform bill. While the measure focuses on banking reform and consumer protection, it contains a number of provisions impacting the regulation of executive compensation in publicly-traded companies, limiting the imposition of mandatory arbitration agreements in certain situations, and expanding whistleblower protections for employees and other individuals who report securities law violations. The House passed this measure on July 1 after congressional committee members finalized the conference report reconciling varying versions of the bill. A full discussion of this measure’s provisions affecting the workplace can be found here. Earlier in the day, the Senate voted 60-38 to end debate on the bill, allowing the final vote to occur. Republicans Olympia Snowe (R-ME), Susan Collins (R-ME) and Scott Brown (R-MA) joined 57 Democrats to vote in the bill’s favor. Senator Russ Feingold (D-WI) was the only Democrat to vote against it. President Obama is expected to sign the bill into law as early as this afternoon.

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On Tuesday, the House Education and Labor Committee held a hearing on the Miner Safety and Health Act of 2010 (H.R. 5663), the worker safety bill that, in addition to addressing mine safety, would significantly increase employer civil and criminal penalties for violations of the Occupational Safety and Health (OSH) Act, strengthen whistleblower protections and provide greater rights for victims of accidents and their family members to participate in proceedings under the OSH Act. These provisions were initially included in the Protecting America’s Workers Act (PAWA) (H.R. 2067, S. 1580), but were incorporated into the broader mine safety bill last month.

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The National Labor Relations Board (“NLRB” or “Board”) has announced (pdf) that it has ratified the General Counsel’s (GC) litigation authority and the Board’s administrative, personnel, and procurement actions taken during the 27-month period when the Board operated with only two acting members. The Board’s ratification does not extend to the unfair labor practice decisions and representation case rulings issued by members Wilma Liebman (D) and Peter Schaumber (R) during that time. It is estimated that from January 2008 through the beginning of April 2010, the two-member panel issued more than 600 Board opinions. In June, the Supreme Court held in New Process Steel that at least three members are needed to exercise the Board’s authority, thus calling into question the legitimacy of the cases decided and other actions taken during that period.

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A number of federal agencies plan to issue an interim rule (pdf) that will require federal contractors and subcontractors to disclose executive compensation details and first-tier subcontractor awards on contracts expected to be $25,000 or more. This rule amends the Federal Acquisition Regulation (FAR) to implement the section of the Federal Funding Accountability and Transparency Act that requires the Office of Management and Budget (OMB) to create a free, public website that provides information about all federal contract awards. To that end, the rule requires that by the end of the month following the month the contract is awarded, and annually thereafter, the contractor or first-tier subcontractor must report the names and total compensation of each of the five most highly compensated executives for the contractor’s or first-tier subcontractor’s preceding completed fiscal year. Contractors and subcontractors whose gross income in the previous tax year was less than $300,000 are exempt from these disclosure requirements. The rule also requires contractors to report subcontracts of $25,000 or more, and any changes made to those contracts which impact data previously submitted. According to the interim rule, these reporting requirements “are sweeping in their breadth, and are intended to empower the American taxpayer with information that may be used to demand greater fiscal discipline from both executive and legislative branches of Government.”

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The Occupational Safety and Health Administration (OSHA) has issued a proposed rule that will revise and delete a number of its standards. This proposed rule is being implemented as “Phase III” of the agency’s Standards Improvement Project, which is designed to “remove or revise outdated, duplicative, unnecessary, and inconsistent requirements in its safety and health standards.”

According to OSHA’s summary of the proposed changes, the agency is considering a number of actions amending its standards, including revisions to its general industry, maritime, construction, and agricultural standards. Some changes will impact more than one industry. For example, OSHA explains that the proposed revisions to the General Industry “Slings” standard also would affect shipyard employment and the construction industry.

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In the wake of the recent Supreme Court decision holding that the National Labor Relations Act (NLRA) requires that the National Labor Relations Board (NLRB) must operate with at least three members in order to exercise its full authority, the NLRB has issued a roadmap (pdf) explaining how it will handle cases sent back to the agency that were decided by only two acting members. It is estimated that nearly 600 cases were adjudicated in this fashion during the 27-month period before President Obama used his recess appointment power in March to seat members Craig Becker (D) and Mark Pearce (D). The Senate confirmed the nominations of Pearce and Brian Hayes (R) in June, restoring the NLRB to full power.

According to the NLRB, at the time the Supreme Court issued its June 17 decision, “96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.” As discussed in the NLRB press release, each of the remanded cases will be considered by a three-member panel of the Board, which will include Chairman Wilma Liebman (D) and NLRB Member Peter Schaumber (R), the two members who initially decided the remanded cases. “Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.” With respect to two-member Board rulings not already challenged in the federal appellate courts, the press release stated that it is unclear at this time how many of such rulings can or will be contested and how many may now be moot.

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Late Thursday, the House of Representatives approved the Supplemental Appropriations Act of 2010 (H.R. 4899) that included an amendment (pdf) incorporating the Public Safety Employer-Employee Cooperation Act (PSEECA), which would provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them, establish minimum standards for collective bargaining rights for these groups, and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. As explained in a press release issued by Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, the bill that cleared the House:

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On Wednesday, the House voted 237-192 to approve the Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173), the massive financial overhaul legislation otherwise known as the “Wall Street” reform bill. As previously discussed, this measure contains a number of provisions – including those impacting arbitration, executive compensation, and whistleblower protection – that would affect the workplace. Earlier in the week, supporters scrambled to revise the conference report (pdf) to find alternative means of paying for the $19 billion measure in order to gain sufficient votes for passage. In a compromise move, lawmakers decided to, among other things, end the Troubled Asset Relief Program (TARP) earlier than scheduled. Although President Obama had said he hoped to sign the final bill before the Fourth of July break, it is unlikely that the Senate will begin consideration of the bill before it reconvenes on July 12.

Photo credit:  MBPHOTO, INC.

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Members of the House and Senate appear to be using proposed legislation drafted in response to recent mine and oil spill disasters as a vehicle to push broader Occupational Safety and Health Administration (OSHA) reform provisions contained in the Protecting America’s Workers Act (PAWA) (H.R. 2067, S. 1580). House and Senate Democrats proposed major safety reforms for mines and other workplaces in the Miner Safety and Health Act of 2010. As emphasized by Senator Patty Murray (D-WA), Chair of the Senate Subcommittee on Employment and Workplace Safety, “[b]etween recent mine disasters and similar tragedies in other industries, it has become clear that Congress needs to act to strengthen protections provided by both MSHA and OSHA.” To that end, the discussion draft (pdf) of the legislation provides the Mine Safety and Health Administration (MSHA) with additional inspection and investigation authority. Mines with a pattern of significant safety problems would be placed on a “pattern of violation” status if their safety and compliance record falls below thresholds established by MSHA. Following the placement of a mine in pattern status, miners will be withdrawn from the mine and MSHA will issue a remedial order which the mine must satisfy. Among other proposals, the legislation would also increase maximum civil and criminal penalties for certain violations of mine safety law.

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