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

Speculation has increased in many quarters that components of the Employee Free Choice Act may be implemented administratively given organized labor’s failure to achieve legislative progress. The most recent warning signal came during a Boston labor law conference held on October 21, when National Labor Relations Board (NLRB) member Mark Gaston Pearce, a Democrat appointee, opined that the time period between the filing of an election petition and the election itself should be “as brief as possible.” Under EFCA, organized labor sought the elimination of any election period through its card check proposal in order to effectively silence employers attempting to educate employees with regard to unionization and the impact of any decision to unionize.  Continue reading this entry at Littler's Labor Relations Counsel. 

Photo credit: NLRB.gov

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The Occupational Safety and Health Administration (OSHA) will continue to target high-hazard workplaces for inspections under its 2010 Site-Specific Targeting (SST) program. (pdf)  As discussed in a news release, the SST program “is OSHA's main programmed inspection plan for non-construction workplaces that have 40 or more workers.” The plan is based on information gathered from OSHA’s 2009 Data Initiative (ODI) survey, which collected injury and illness data from approximately 80,000 private sector establishments in high-hazard industries during 2008. OSHA uses this information to calculate establishment-specific injury/illness rates, and in combination with other data sources, to target enforcement and compliance assistance activities. According to the agency, this year OSHA is also collecting work-related injury and illness data from approximately 20,000 establishments in the construction industry, in addition to non-construction establishments. The 2010 SST, however, does not include data on construction worksites. The ODI’s information is similar to that gathered by the Bureau of Labor Statistics (BLS). The BLS, however, collects data from only a sample of all private-sector establishment in generating its annual injury and illness report.

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Nonfatal instances of private sector workplace injuries and illnesses declined “significantly” in 2009, according to a report issued by the Bureau of Labor Statistics (BLS). The Workplace Injury and Illness Summary indicates that nonfatal workplace injuries and illnesses among private industry employers declined by a rate of 3.6 cases per 100 equivalent full-time workers, down from the prior year’s rate of 3.9 per 100. The incidence rate of injuries alone in the private sector fell by 11% in 2009. While such injury and illness rates dropped for all private sector establishments, the manufacturing sector showed the largest decline of 23% (161,100 cases) from 2008 to 2009. According to the BLS, this sector represents approximately 39% of the total private industry decline of such reports for 2009. Dropping by an injury and illness reporting rate of 22%, the construction industry comes in second. The highest incidents of injury and illness reports in 2009 arose from mid-size (between 50 and 249 workers) private industry employers; predictably, small establishment (those with fewer than 11 workers) reported the fewest incidents.

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued a proposed rule that would change the definition of “fiduciary” under the Employee Retirement Income Security Act (ERISA) to include a broader range of individuals who provide investment advice. According to a summary of the proposed rule published in the October 22, 2010 edition of the Federal Register, the proposed rule “amends a thirty-five year old rule that may inappropriately limit the types of investment advice relationships that give rise to fiduciary duties on the part of the investment advisor.” The rule is designed to limit conflicts of interest and self-dealing “by giving a broader and clearer understanding of when persons providing such advice are subject to ERISA’s fiduciary standards.” The definition change would impact sponsors, fiduciaries, participants, and beneficiaries of pension plans and individual retirement accounts, as well as providers of investment and investment advice related services to such plans and accounts.

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On Wednesday, the Equal Employment Opportunity Commission (EEOC) held a public meeting to gather information about the use of credit checks as an employment screening device. Nine panelists representing the views of employers, workers, and the credit reporting industry discussed the reasons for using such reports in the hiring process, employee rights and employer responsibilities under the Fair Credit Reporting Act (FCRA), and current scientific research on credit scores and its correlation to job performance. While a number of panelists claimed that the use of credit reports in employment leads to discriminatory hiring practices and urged the agency to issue new guidance on this topic and increase its enforcement efforts, others explained the necessity of using credit checks in the employment arena, the circumstances under which credit check are used by employers and how existing protections provide sufficient safeguards against discrimination.

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We are pleased to announce two new additions to the Littler blogroll:

Labor Relations Counsel
Brought to you by Littler's Labor Management Relations Practice Group, the Labor Relations Counsel blog targets meaningful legal developments, including appellate court decisions, NLRB and NMB decisions, and administrative rules and regulations. During this time of enormous governmental change and shifts in strategy and style of powerful labor unions, Littler's history and depth of experience in labor relations gives its attorneys a distinctly broad perspective with which to provide insight and useful analysis of the latest developments.

Digital Workplace Blog
The Digital Workplace Blog is a unique collaboration between Littler Mendelson and Stuart N. Brotman Communications, bringing together legal and business minds to address issues arising in the digital workplace. This approach is designed to provide readers with a comprehensive understanding of the issues, with Stuart N. Brotman Communications covering developments from a management perspective, and Littler examining the legal implications of technology in the workplace.

To receive email alerts of new postings, please enter your email address in the Subscribe box on each blog’s homepage.

Photo credit: ideabug

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The Securities and Exchange Commission (SEC) has released proposed regulations implementing some of the executive compensation provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act” or “the Act”).  While the Act, which was signed into law on July 21, 2010, focuses on overhauling the financial services industry, it also includes a number of broad executive compensation provisions that apply beyond this sector. Among other things, Section 951 of the Act provides for a “say-on-pay” shareholder advisory vote on executive compensation and golden parachutes. The proposed regulations – Reporting Of Proxy Votes On Executive Compensation And Other Matters (pdf) and Shareholder Approval Of Executive Compensation And Golden Parachute Compensation (pdf) – address these provisions.

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The Occupational Safety and Health Administration (OSHA) is proposing an official interpretation (pdf) of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards. As explained in a summary to be published in tomorrow’s edition of the Federal Register, the above OSHA standards require employers to use administrative or engineering controls instead of personal protective equipment (PPE) to reduce noise exposure that is above the acceptable level when such controls are feasible. Although feasibility encompasses both economic and technological considerations, OSHA explains that the instant interpretation addresses economic feasibility only. The agency seeks to clarify that “feasible” in this instance means “capable of being done” or “achievable.” OSHA states that it intends to revise its enforcement policy to reflect this clarification.

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued guidance in the form of Frequently Asked Questions (FAQs) that explains how the Genetic Information Nondiscrimination Act (GINA) impacts employer-provided group health plans and insurance providers. Among other things, Title I of GINA prohibits group health plans and health insurance issuers from discriminating based on genetic information, and prohibits the collection of such information, including family medical history, prior to or in connection with plan enrollment or for insurance underwriting purposes. As explained in the FAQs, unlike the provisions of Title I of the Health Insurance Portability and Accountability Act (HIPAA) that exempt very small health plans with less than two participants who are current employees, the nondiscrimination provisions of GINA apply to all group health plans.  Continue reading this entry at Littler’s Healthcare Employment Counsel.

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued a final rule (pdf) that requires retirement plan sponsors and fiduciaries to disclose certain plan and investment-related information, including that related to fees and expenses, to participants and beneficiaries in participant-directed individual account plans, such as 401(k)s. As explained in a news release, the rule is intended to “ensure that all workers who direct their plan investments have access to the information they need to make informed decisions regarding the investment of their retirement savings, including fee and expense information. Under the rule, workers will receive this information in a format that enables them to meaningfully compare the investment options under their plans.” This rule will impact plan sponsors, fiduciaries, participants and beneficiaries of participant-directed individual account plans, as well as providers of services to such plans.

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The Fair Labor Standards Act (FLSA) provides that it is unlawful "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint ... under or related to this Act." 29 U.S.C. § 215(a)(3). The question before the U.S. Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir.), reh’g denied, 585 F.3d 310 (7th Cir. 2009), cert. granted, 130 S.Ct. 1890 (2010), was whether “filed any complaint” includes making an internal oral complaint.  Continue reading this entry at Littler's Wage & Hour Counsel. 

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The Equal Employment Opportunity Commission (EEOC) will conduct a public meeting to discuss the use of credit checks in the employment context. According to the notice (pdf) published in today’s edition of the Federal Register, the meeting will be held on Wednesday, October 20, 2010, at 9:30 a.m. EDT in the EEOC’s meeting room on the first floor of the EEOC office building, 131 M Street, NE., Washington, DC 20507. Due to limited seating and the security process, attendees are encouraged to arrive at least 30 minutes in advance.

The use of credit checks in employment has been receiving some attention in Congress. Last month, the House Financial Services Committee conducted a hearing to discuss the Equal Employment for All Act (H.R. 3149), a bill that would amend the Fair Credit Reporting Act to make it unlawful, with certain limited exceptions, to base adverse employment decisions against prospective and current employees on consumer credit reports. This legislation has not advanced in Congress.

This is the second meeting held in recent years in which the use of credit checks in the employment process has been discussed at an EEOC meeting. On May 16, 2007, a public meeting was held in which the EEOC discussed “how agency-enforced laws apply to employment testing and screening ”

Topics of discussion at the 2007 meeting included the use of credit histories in the pre-employment process. No formal action was taken by the EEOC following the 2007 meeting.

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The Department of Labor (DOL) recently released its Final Strategic Plan (pdf) for the next five-year period. Although this document merely outlines the agency’s general goals, it does provide some insight as to what the agency deems most important and where it will focus its resources, enforcement efforts and regulatory activity in the upcoming years. The Plan is organized around the following five strategic goals:

• Prepare workers for good jobs and ensure fair compensation
• Ensure workplaces are safe and healthy
• Assure fair and high quality work-life environments
• Secure health benefits and, for those not working provide income security
• Produce timely and accurate data on the economic conditions of workers and their families

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On September 29, 2010, Senator Orrin Hatch (R–UT) introduced the “Strengthening Our Commitment to Legal Immigration and America’s Security Act” (S.3901) (pdf). The bill is the third notable piece of immigration legislation introduced in recent weeks, together with the comprehensive immigration reform bill introduced by Senators Menendez and Leahy, and Senator Chambliss’ HARVEST Act (relating to agricultural workers).  Continue reading this entry at Littler's Global Immigration Counsel.

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According to a recent Wall Street Journal article, on October 7 the AFL-CIO, in conjunction with an affiliate group Working America, will launch a searchable online database of more than 400,000 employers that allegedly have outsourced jobs and/or violated workers’ rights. To learn more about this development, please continue reading this entry on Littler's Labor Relations Counsel blog.

Photo credit:  photodora.com

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On September 29, 2010, Senators Robert Menendez (D–NJ) and Patrick Leahy (D–VT) introduced “The Comprehensive Immigration Reform Act of 2010” (S. 3932). According to Senator Menendez, the bill “addresses long-standing, wide-ranging flaws in the immigration system that have been priorities of groups on each side of the immigration reform debate.” The bill was introduced shortly before Congress adjourned for its mid-term election recess. As reported by The Hill, Senator Menendez defended his timing for introducing the bill by stating that it could lead to possible “lame-duck movement” on the legislation, and in the longer term it serves as an "invitation to bring Republican colleagues to discussion" on immigration reform.  Continue reading this entry at Littler's Global Immigration Counsel.

Photo credit:  David Franklin

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This week, the U.S. Supreme Court heard oral argument in a case challenging NASA’s background checks of “low risk” private contractors working at the agency’s Jet Propulsion Laboratory (JPL). At first blush, the case does not appear to be particularly relevant to private employers given that NASA is a public employer and the appeal will turn principally on the Supreme Court’s interpretation of the federal constitutional right to information privacy applicable only to public employers. Deeper consideration suggests, however, that the Court’s decision could have significant implications for private sector employers.  Continue reading this entry at Littler's Workplace Privacy Counsel. 

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