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 published a proposed rule (pdf) that would update the filing and processing procedures related to the prohibited transaction exemption under the Employee Retirement Income Security Act (ERISA). ERISA contains a number of statutory safeguards to prevent benefit plan fiduciaries from self-dealing or engaging in other types of conduct that would threaten the integrity of the employee benefit plans. It also sets forth certain exemptions to these rules to accommodate customary business practices. As stated in a press release, the proposed rule streamlines the existing procedures related to the exemption process, clarifies the types of information and documentation required to submit a complete filing, expands the methods for transmitting filings to include electronic submissions, and makes the exemptions more understandable for participants and other interested parties.

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The Occupational Safety and Health Administration (OSHA) will issue three interim final rules that outline the procedures for handling retaliation complaints under the whistleblower provisions of the Surface Transportation Assistance Act (STAA), National Transit Systems Security Act (NTSSA), Federal Railroad Safety Act (FRSA), and the Consumer Product Safety Improvement Act (CPSIA). OSHA enforces the anti-retaliation provisions of 19 separate statutes, including the four mentioned above. The new rules governing the NTSSA and the FRSA, (pdf) the STAA, (pdf) and the CPSIA (pdf) seek to establish and/or clarify and improve the procedures and time frames for handling retaliation complaints under these laws. In general, the complaint procedures outlined in each set of rules are consistent with one another. The similarities among the rules include the following:

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A preliminary report released August 19 by the Bureau of Labor Statistics' (BLS) National Census of Fatal Occupational Injuries(CGOI) indicates that the number of workplace fatalities declined in 2009 from the prior year. Specifically, the report shows that in 2009, 4,340 individuals died due to workplace injuries, down from the 5,214 such fatalities in 2008, representing a 16.7% decrease. Overall, the preliminary fatality rate for 2009 amounts to 3.3 per 100,000 full-time equivalent (FTE) workers. According to the BLS, this number represents the smallest annual preliminary total since the CFOI program’s inception in 1992. This decline was due, in part, to reduced employment in industries that traditionally experience a greater incidence of fatal injuries, such as construction.

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Ending a four-year schism, the Laborers’ International Union of North America (LIUNA) has decided to rejoin the AFL-CIO as of October 1, 2010. LIUNA, with more than half a million members in the construction industry, had withdrawn from the AFL-CIO in 2006 to affiliate with Change to Win, a competing labor movement comprised of the LIUNA, the International Brotherhood of Teamsters (IBT), the Service Employees International Union (SEIU), the United Farm Workers of America (UFW), and the United Food and Commercial Workers International Union (UFCW). The SEIU instigated this mass defection from the AFL-CIO to form Change to Win in 2005, purportedly due to internal disagreements about the direction of the organization. AFL-CIO president Richard Trumka has made it a mission to unify the labor movement.

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A bill introduced in both the House and Senate would establish an automatic individual retirement account (IRA) enrollment program for employees at firms with more than 10 employees that do not already maintain a qualified retirement plan. According to a press release, the Automatic IRA Act of 2010 (H.R. 6099, S. 3760) is based on a proposal in the President’s FY 2011 budget, and builds upon the success of the 401(k) auto enrollment program promoted by the Pension Protection Act of 2006. Under the terms of the proposed legislation, contributions would be voluntary, and employers would be entitled to a tax credit of up to $250 for each of the first two years of the program’s operation to cover any expenses incurred in setting up the automatic enrollment (“Auto IRA”) accounts. Other key provisions affecting employers include the following:

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During a special session held this morning, the Senate passed a $600 million spending bill (pdf) that will increase law enforcement presence at the United States’ southwestern border with Mexico and will finance additional aerial drones and construction of two operating bases. The Senate passed an identical bill (S. 3721) on August 5 before adjourning for recess, but for technical reasons the Senate needed to approve the version of the bill approved by the House of Representatives on August 10 before sending it to President Obama for signature.  Continue reading this entry at Littler's Global Immigration Counsel blog. 

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The Department of Labor’s Office of Labor-Management Standards (OLMS) has published a proposed rule (pdf) to modify union disclosure Form LM-30 and its instructions. The Labor-Management Reporting and Disclosure Act (LMRDA) requires labor organization officers and employees and their spouses and minor children to publicly disclose certain financial interests held, income received, and transactions engaged in to prevent any conflicts of interest. Such disclosures are made on the Form LM-30, (pdf) which was last amended in 2007.  According to the OLMS, these changes “left unresolved fundamental questions about the reporting obligations of union officials, questions raising policy and legal issues warranting reexamination by the Department.” Therefore, on March 19, 2009, the OLMS issued a non-enforcement policy that allowed affected parties to file either the 2007 or previous LM-30 form while it sought input as to whether and how to amend the form yet again. The agency claims that the proposed changes published in the August 10 edition of the Federal Register address “the complexity of the form and its instructions, as well as the scope and extent of the LM-30 reporting obligations.”

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The Pension Benefit Guaranty Corporation (PBGC) will issue a proposed rule (pdf) that seeks to provide guidance on the applicability and enforcement of section 4062(e) of the Employee Retirement Income Security Act (ERISA). This section contains special rules that apply when “an employer ceases operations at a facility in any location and, as a result of such cessation of operations, more than 20 percent of the total number of his employees who are participants under a plan established and maintained by him are separated from employment.” In this event, the employer that maintains the single-employer pension plan is subject to certain reporting requirements and liability. The PBGC seeks to amend its regulations to provide guidance as to what constitutes a section 4062(e) event in the first instance, revise the reporting requirements of such an event to the PBGC, and explain the determination and satisfaction of liability as a result of such an event.

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The Internal Revenue Service (IRS) has issued two notices explaining that sponsors of single- and multi-employer defined pension plans can still elect funding relief provided by the newly-enacted Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act (“PRA 2010”) (P.L. 111-192) even if they have already filed Form 5500 to satisfy their annual reporting requirements. This Act, which was signed into law on June 25, includes single-employer pension plan funding relief measures such as an extended period for single employer defined benefit plans to amortize certain shortfall amortization bases; application of an extended amortization period to plans subject to prior law funding rules; a lookback for certain benefit restrictions; and a lookback for the credit balance rule for plans maintained by charities. Multi-employer plan funding relief measures included in the PRA 2010 include adjustments to funding standard account rules, such as expanded “smoothing” periods for losses incurred during the period of economic decline; and modification of certain amortization extensions under prior law, among other provisions.

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As expected, the Senate on Thursday confirmed by a vote of 63 to 37 the nomination of U.S. Solicitor General Elena Kagan to be the next Supreme Court justice. President Obama named Kagan as his pick to replace retiring justice John Paul Stevens on May 10, 2010. Kagan’s confirmation process has been relatively uncontroversial. Because she has never served in a judicial capacity, her views on various topics – including labor and employment issues – could not be gleaned from past opinions. Kagan will be the fourth woman to ever serve on the high court, and historically one of three to be sitting on the nine-member bench at one time. It is largely believed that Kagan will maintain the Court’s current ideological balance. Information on Kagan’s work history, responses to hearing questions, and letters and materials sent and received in connection with her nomination can be found here.

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Last week the Senate introduced the Robert C. Byrd Mine and Workplace Safety and Health Act of 2010 (S. 3671), a bill that – like its House companion bill (H.R. 5663) – would improve mine safety as well as significantly revise the Occupational Safety and Health (OSH) Act. Among other things, the bill would increase Mine Safety and Health Administration (MSHA) oversight and accountability, impose new mine safety requirements, strengthen whistleblower protections for employees in all industries, increase employer civil and criminal penalties for repeat and/or willful violations of the OSH Act, require the abatement of hazards during the citation contest period, and provide greater rights for victims of accidents and their family members to participate in OSH Act proceedings. A summary of this legislation can be found here.

The House version was recently approved by the House Committee on Education and Labor. On July 13, the House committee held a hearing to hear testimony and discuss the various provisions of the measure.

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On July 29, Rep. Timothy Bishop (D-NY) introduced a bill that would enable more railway workers to take leave under the Family and Medical Leave Act (FMLA). The Railroad Hours of Service Employees Technical Corrections Act (H.R. 5944) would amend the FLSA by adding a section clarifying that railroad employees subject to hours of service laws would meet the FLSA’s leave eligibility requirements if they:

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The Department of Labor has withdrawn its proposed rule defining “welfare benefit plan” under the Employee Retirement Income Security Act (ERISA). The rule, which intended to address the impact of state health care plans on ERISA-covered welfare plans, had been proposed before the Patient Protection and Affordable Care Act (“Affordable Care Act”) was signed into law on March 23, 2010. In light of the Affordable Care Act’s enactment, the DOL intends to review “whether and to what extent further regulation in this area is necessary or appropriate in light of a national health care reform program.”

Photo credit: borisyankov

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Before recessing for six weeks, the House of Representatives passed by a 315- 93 margin the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010 (H.R. 5851), a bill that would provide whistleblower protections for employees in the offshore oil and gas industries. The Offshore Oil and Gas Worker Whistleblower Protection Act was incorporated into broader oil spill response legislation, the Consolidated Land, Energy, and Aquatic Resources Act of 2010 (H.R. 3534), which the House passed by a vote of 209-193.

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