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

On Wednesday, Sen. Majority Leader Harry Reid (D-NV) filed a cloture motion to proceed with consideration of the Paycheck Fairness Act (S. 3772). This procedural action sets up a vote on the bill – which would, among other things, amend the Fair Labor Standards Act (FLSA) to provide for unlimited compensatory and punitive damages in gender-based wage discrimination cases and weaken an employer’s affirmative defense against such claims – when the Senate returns from the recess for upcoming elections.

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Many have speculated that the National Labor Relations Board may seek to implement through the Board’s processes certain aspects of the Employee Free Choice Act in lieu of legislative action. To wit, in a move that partially implements EFCA’s “enhanced enforcement” provisions, the NLRB Office of the General Counsel (GC) has put into place a program designed to streamline and expedite the process of seeking preliminary injunctions from federal courts in cases involving employee discharges during union organizing campaigns.  Continue reading this entry at Littler’s Labor Relations Counsel.

Photo credit: dra_schwartz

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Last week, Sen. Bob Casey (D-PA) reintroduced the Working Families Flexibility Act (S. 3840) in the Senate. This measure, which was introduced in the House of Representatives in March 2009 as H.R. 1274, would provide employees with a statutory right to request flexible work terms and conditions. In a statement, Sen. Casey claimed: “70 percent of households are led by either two employed parents, or a single parent,” adding, “This also means there are increased demands that can put strains on families and also hurt workforce productivity. The legislation I have introduced today can help create flexible work options that can benefit workers and employers.”

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On Wednesday, the Senate voted 40-59 to defeat a motion to begin debate on a resolution of disapproval (S.J. Res. 39) introduced on September 21 by Sen. Mike Enzi (R-WY) that sought to repeal the health care plan grandfathering regulations that exempt certain plans from having to comply with some of the new requirements imposed by the Patient Protection and Affordable Care Act (“Affordable Care Act”). A new internal and external claims review process and the prohibition on discrimination in favor of highly-compensated employees by fully-insured plans are among the requirements that apply to non-grandfathered health plans.  Continue reading this entry at Littler's Healthcare Employment Counsel.

Photo credit: MBPHOTO, Inc.

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On Monday, President Obama signed into law the Small Business Jobs Act (H.R. 5297), (pdf) legislation that contains provisions allowing individuals to roll over certain retirement accounts into Roth accounts. Specifically, according to a summary (pdf) of the new law, the retirement provisions will do the following:

• Allow Rollovers from Elective Deferral Plans to Roth Designated Accounts. The bill will allow 401(k), 403(b), and governmental 457(b) plans to permit participants to roll their pre-tax account balances into a Roth account. The amount of any pre-tax rollover will be considered taxable income. If the rollover is made in 2010, the participant can elect to pay the tax in 2011 and 2012. Plans will be able to allow these rollovers immediately upon enactment.

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The Senate on Monday began its consideration of the Creating American Jobs and Ending Offshoring Act (S. 3816), a bill that would provide employers with tax incentives to maintain jobs in the United States, and eliminate tax advantages for outsourcing work. Introduced on September 21, 2010, this legislation would do the following:

Provide Tax Incentives to Create U.S. Jobs

The bill would create a payroll tax break for employers that replace foreign workers with American workers. Specifically, the measure provides for a two-year Social Security tax break on wages paid to U.S. employees who have replaced their foreign counterparts. The payroll tax holiday would be available for two years for employees hired during a three-year period beginning on September 22, 2010. To be eligible for this break, employers would be required to certify that the U.S. employee is replacing a foreign worker who had been performing the same or similar job.

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On Friday, the House Committee on Financial Services held a hearing on executive compensation oversight in light of new requirements imposed by the Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203), the sweeping financial overhaul legislation signed into law on July 21, 2010 that contains a number of provisions impacting the regulation of executive compensation in publicly traded companies.  Panelists were asked their views on whether the compensation-related provisions would be effective in revising corporate incentive pay structures to reduce the incidence of risk-taking, and what federal regulators should take into consideration in drafting rules to implement these provisions. Although most of the witnesses focused on the Act’s impact on financial services companies only, one did address how the executive compensation provisions would impact all publicly traded companies.

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On Thursday, the House Financial Services Committee held a hearing to discuss the Equal Employment for All Act (H.R. 3149), legislation that would make it unlawful, with certain limited exceptions, to base adverse employment decisions against prospective and current employees on consumer credit reports. While a number of panelists spoke in support of limiting the use of such employment-based credit checks, others testified that doing so is unnecessary and could put employers at risk.

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On Thursday, the Senate, by a 43 to 56 vote, failed to approve the resolution (S. J. Res. 30) introduced by Sen. Johnny Isakson (R-GA) that sought to reverse the new National Mediation Board (NMB) election rule (pdf) that upended more than 75 years of established procedure. Such a resolution of disapproval, submitted under the Congressional Review Act, allows Congress to overturn rules issued by administrative agencies. Had the Senate approved the resolution, it would still have required the President’s signature or veto.  Continue reading this entry at Littler’s Labor Relations Counsel.

Photo credit:  MBPHOTO, Inc.

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It is widely expected that a vote on the reintroduced Paycheck Fairness Act (S. 3772) could occur as early as this week. This legislation – which cleared the House of Representatives in January 2009 – would subject employers to potentially unlimited compensatory and punitive damages for violations of gender-based wage discrimination law, and would weaken the affirmative defense available to employers in such cases.

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Senator John Kerry (D-MA) and Rep. Jim McDermott (D-WA) have introduced a bill that would curtail the use of a federal “safe harbor” that allows businesses to treat workers as independent contractors for federal employment tax purposes, regardless of the employee’s actual status under the common law test. The Fair Playing Field Act of 2010 (pdf) (H.R. 6128, S. 3786) would, among other things, require the Secretary of the Treasury to issue prospective guidance on worker classification for federal employment tax purposes. The safe harbor provided under section 530 of the Revenue Act of 1978 would continue to be available until the date an individual’s employment status is reclassified. The worker’s reclassification date would be the earlier of (a) the first day of the first calendar quarter beginning more than 180 days after the date of an employee classification determination by the Secretary of the Treasury; or (b) the effective date of the “first application final regulation” issued by the Secretary of the Treasury with respect to such individual (or if later, the first day of the first calendar quarter beginning more than 180 days after such regulation is issued).

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During a question and answer session held in Fairfax, Virginia on September 13, President Obama acknowledged the political reality that the Employee Free Choice Act’s (EFCA) (H.R. 1409, S. 560) prospect of passage this session “is not real high.” Obama claimed that EFCA, often referred to as the “card check” bill, “is in response to 20, 30 years where it’s become more and more difficult for unions to just get a fair election and have their employers actually negotiate with them” – ignoring substantial evidence to the contrary. The President recognized, however, that “[f]rankly, we don’t have 60 votes in the Senate” to pass it. Given the current political trends leading up to this year’s mid-term Congressional elections, it seems unlikely that this situation will change in the foreseeable future.  Continue reading this entry at Littler’s Labor Relations Counsel.

Photo credit:  Pinewood Portrait Studios

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Legislation that would amend the Fair Labor Standards Act (FLSA) to increase remedies for violations of the Equal Pay Act (EPA) and make it more difficult to defend against such claims was reintroduced in the Senate on Monday. Sen. Majority Leader Harry Reid (D-NV) introduced the Paycheck Fairness Act (S. 3772) with 13 cosponsors. Former Sen. Hillary Clinton (D-NY) had introduced this measure as S. 182 in the Senate on January 9, 2009, the same day the House passed its companion bill (H.R. 12). The White House recently urged the bill’s passage during a forum on work and family issues, calling it “a common-sense bill that will help ensure that men and women who do equal work receive the equal pay that they and their families deserve.”

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On Tuesday, the Senate refused to advance two amendments to the Small Business Jobs and Credit Act of 2010 (H.R. 5297) offered by both Democratic and Republican senators that sought to amend or repeal a provision in the newly-enacted Patient Protection and Affordable Care Act (“Affordable Care Act”) that imposes increased tax reporting requirements on businesses. Specifically, the provision requires all businesses, charities, and state and local governments to file 1099 forms if they purchase $600 or more in goods from other entities after December 31, 2011. This reporting mandate has drawn fire from a number of sectors on the grounds that the burden is simply too onerous and will wind up impacting a considerable number of businesses.

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President Obama has announced that he plans to nominate Thomas M. Beck (R) to be a member of the National Mediation Board (NMB). The NMB is an independent federal agency tasked with facilitating labor-management relations in the airline and railroad industries. Specifically, the NMB manages the dispute resolution process involving collective bargaining disputes in this transportation sector. If confirmed, Beck is expected to replace fellow Republican Elizabeth Dougherty, whose term expired on June 30. Also serving on the three-member NMB is Chairman Harry Hoglander (D) and Member Linda Puchala (D).  Continue reading this entry at Littler's Labor Relations Counsel. 

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The Federal Aviation Administration (FAA) has released its much-anticipated proposed regulations (pdf) governing rest rules for commercial airline pilots. Spurred by the February 2009 fatigue-related crash of Colgan Air 3407 in Buffalo, New York, these rules impose a number of new requirements on airlines to address flight operation and rest time. The rules are also in response to the recently-enacted Airline Safety and Federal Aviation Administration Extension Act of 2010, which directed the FAA to establish regulations to address pilot fatigue by August 1, 2011. In a statement, FAA Administrator Randy Babbitt said: “I know firsthand that fighting fatigue is a serious issue, and it is the joint responsibility of both the airline and the pilot,” adding, “After years of debate, the aviation community is moving forward to give pilots the tools they need to manage fatigue and fly safely.”

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OSHA's National Advisory Committee on Occupational Safety and Health (NACOSH) will conduct a two-day meeting next week to discuss, among other initiatives, the agency’s Injury and Illness Prevention Programs. Throughout the summer, the agency conducted a series of stakeholder meetings devoted exclusively to soliciting input to help OSHA formulate an Injury and Illness Prevention Program rule. These meetings were held on June 3, 10, 29; July 20; and August 3.  Next week’s meetings will be held from 8:30 a.m. to 4:30 p.m. EDT on September 14 and 15 at the U.S. Department of Labor, Room N-3437, 200 Constitution Ave., N.W., Washington, D.C. 20210. In addition to discussing OSHA’s injury and illness prevention programs, the meeting will focus on the recent Gulf of Mexico oil spill response efforts.

Individuals interested in speaking at the meetings must submit a request beforehand. Information on how to make such a request can be found here.  Interested parties may also submit comments to the NACOSH prior to the meeting. Comments may be delivered electronically through the federal eRulemaking portal: www.regulations.gov, or sent in triplicate to the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Ave., N.W., Washington, D.C. 20210. Submissions of 10 pages or less may be faxed to the OSHA Docket Office at 202-693-1648. Submissions should include Docket No. OSHA-2010-0012.

Photo credit:  MBPHOTO, INC.

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The National Labor Relations Board on August 27, 2010, issued its long-awaited decision in a trio of cases involving the use of stationary banners by unions to advertise secondary boycott activity to the public. In a 3-2 decision split along partisan lines, the Board majority (Chairman Liebman and Members Becker and Pearce) concluded that bannering, when conducted peaceably and independent of other, possibly coercive, conduct, does not violate Section 8(b)(4)(ii)(B) of the National Labor Relations Act ( the “Act”). The decision in United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, 355 NLRB No. 159 (2010) has the practical effect of broadening the arsenal of weapons organized labor can bring to bear to force a primary employer in a labor dispute to yield to union demands. As a result, the decision may signal an increase in the frequency of secondary boycott activity and the embroiling of neutral employers in labor disputes not of their own making.

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As the NLRB regained its five-member status, it set to task at the back log of cases awaiting it. On August 27, 2010 it decided Independence Residences, Inc., 335 NLRB No. 153 (2010), a 2003 representation case that even Chairman Liebman noted has languished before the Board for “an unconscionably long time.” In 2003, the Union of Needletrades Industrial and Textile Employees (UNITE) began organizing at Independence Residences, Inc., a private nonprofit entity, and filed a representation petition with the Board. A majority of employees voted for the union in the subsequent election, and the employer filed objections seeking to set aside the election results, arguing that a New York state law barring the use of state funds for certain union campaign activities prevented a fair election. The heart of the issues in Independence Residences was whether New York State Labor Law Section 211-a interfered with the employer’s ability to communicate with employees during the election campaign, warranting the setting aside of the election results.

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After serving eight years on the National Labor Relations Board (NLRB or “Board”), Member Peter C. Schaumber (R) has left the agency now that his second term has expired. Notably, for 27 months Schaumber served as one of only two members of the Board, issuing rulings in approximately 600 unfair labor practice cases during that period. The U.S. Supreme Court in New Process Steal v. NLRB  recently invalidated those decisions, holding that the Board must operate with at least three acting members. Of this decision, Schaumber stated: “While the Supreme Court ultimately determined that a three-member quorum is necessary to issue decisions, Chairman Liebman and I set a tone for collegiality and dedication to case processing that I hope will carry forward to future Boards.”

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As has been anticipated in labor circles since President Obama took office, on Tuesday, the National Labor Relation Board (NLRB or “Board”) announced (pdf) that it would reconsider its decisions in Dana Corp., 351 NLRB 434 (2007) (pdf) and MV Transportation, 337 NLRB 770 (2002) (pdf), cases that address voluntary recognition agreements and successor employers, respectively. The five-member Board agreed 3-2 along party lines to consider two groups of consolidated cases that ask the agency to overturn in whole or in part its rulings in these two earlier decisions. NLRB Chair Wilma Liebman dissented in both cases when they were originally issued and the decisions are part of a larger group of controversial decisions issued by the Bush-era Board that organized labor is dedicated to revisiting.

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