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

Despite two attempts, the Senate on Monday failed to approve amendments to the FDA Food Safety Modernization Act (S. 501) that would have repealed the much-maligned provision in the Affordable Care Act that expands a business’s 1099 information reporting requirements. Specifically, the highly contentious provision requires all businesses, charities, and state and local governments to file 1099 forms if they purchase $600 or more in goods from another business after December 31, 2011. Business interests and the IRS have decried this mandate, claiming the burden of compliance and administration will be too great for all involved.  Continue reading this entry at Littler’s Healthcare Employment Counsel.

Photo credit:  MBPHOTO, INC.

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The newly-released Equal Employment Opportunity Commission’s (EEOC) Performance and Accountability Report (PAR) for Fiscal Year 2010 indicates that the EEOC is making a dent in the backlog of discrimination charges filed with the agency. According to EEOC Chair Jacqueline Berrien, the agency “is on the path toward rebuilding and on track to make further progress in the upcoming fiscal year to more efficiently and effectively enforce the federal laws prohibiting employment discrimination.” Key findings of the PAR include the following:

Private Sector Charges

According to the agency, the growth of private sector charge inventory slowed dramatically from 2009 to 2010. The year began with 85,768 pending charges, but ended with 86,338 – an increase of less than 1% – despite the fact that a total of 99,922 charges were filed with the EEOC in FY 2010, the highest number in the agency’s 45-year history. The charge inventory had increased by 15.9% between fiscal years 2008 and 2009. Of these private sector charges, 38.3% - slightly lower than the 39.7 % reported for 2009 – were completely resolved within 180 days.

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Speaking at a White House Middle Class Task Force event, Vice President Joe Biden announced that the Department of Labor’s Wage and Hour Division (WHD) and the American Bar Association (ABA) have forged a partnership to help process certain employment-related claims filed with the Division. Starting in December, the WHD will provide workers whose minimum wage, overtime, or family medical leave claims cannot be pursued by the DOL with a toll-free number through which they will be able to obtain the contact information of an ABA-approved attorney in their area. According to the DOL, due to limited resources, the agency is unable to pursue “thousands” of wage and hour claims. The toll-free legal referral service, said Biden, will help workers pursue their cases “in a way that is affordable.” Most of these ABA-vetted lawyers will provide their services on a contingency basis. According to the ABA, this partnership between a federal agency and the private bar is the first of its kind.

Photo credit:  Simon McConico Photography

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The Employee Benefits Security Administration (EBSA) will publish a proposed rule (pdf) that implements the annual funding notice requirement for all defined benefit plans. The Pension Protection Act of 2006 (PPA) amended the Employee Retirement Income Security Act (ERISA) to require that administrators of all defined benefit plans, not just multiemployer plans, provide an annual funding notice to the Pension Benefit Guaranty Corporation (PBGC), plan participants and beneficiaries, labor organization representing participants or beneficiaries, and, in the case of a multiemployer plan, each employer that has an obligation to contribute to the plan. This funding notice must include the plan’s funding target attainment percentage, a statement of the value of the plan’s assets and liabilities and a description of how the plan’s assets are invested as of specific dates, a description of the benefits under the plan that are eligible to be guaranteed by the PBGC, and other information relevant to the plan’s funded status. The proposed regulation outlines the scope of an administrator’s obligations in providing this notice and details the content requirements of the notice itself. In addition, the proposed rule’s appendix contains two model notices (one for single employer plans and one for multiemployer plans) for plan administrators to use. According to a summary to be published in the Federal Register, this proposed rule will affect plan administrators, participants and beneficiaries of defined benefit pension plans; labor organizations representing participants and beneficiaries; and contributing employers of multiemployer plans.

Comments on this proposal are due within 60 days of publication, which is scheduled for November 18, 2010. All comments must contain the regulatory identification number: RIN 1210–AB18, and may be submitted via the federal eRulemaking portal or by email: e-ORI@dol.gov (include RIN 1210-AB18 in the subject line of the message). Alternatively, written comments may be sent to: Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5655, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, DC 20210, Attention: Annual Funding Notice for Defined Benefit Plans.

Photo credit: Kirby Hamilton

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As expected, supporters of the Paycheck Fairness Act (S. 3772) failed to garner enough votes to advance the measure in the Senate, effectively killing the bill for the foreseeable future. The motion to move the bill closer to a vote failed by a margin of 58-41, short of the needed 60 votes. Senator Ben Nelson (D-NE) joined all Republicans present in opposing the bill. Senator Lisa Murkowski (R-AK) did not vote. At least 60 votes were needed to avoid the inevitable filibuster against the legislation, which would have, among other things, amended the Fair Labor Standards Act (FLSA) to provide for unlimited compensatory and punitive damages in gender-based wage discrimination cases, weakened an employer’s affirmative defense against such claims, incorporated anti-retaliation provisions into the FLSA, eliminated the requirement that employees work in the same establishment for wage comparison purposes, reinstated the Office of Federal Contract Compliance Programs (OFCCP) Equal Opportunity Survey, and required employees to “opt-out” of instead of “opt-in” to a class action lawsuit. These changes would likely have led to a dramatic increase in equal pay lawsuits, and undermined an employer’s ability to defend against them. As Sen. Mike Enzi (R-WY) stated before his vote was cast, “a better title for this bill should be the Jobs for Trial Lawyers Act.”

Sen. Majority Leader Harry Reid (D-NV) reintroduced the Paycheck Fairness Act in September. 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). It was probably believed that the measure had the best shot of passage during Congress’s lame duck session, as fewer supporters will remain in both the House and Senate come January as a result of the midterm election.

Photo credit: MBPHOTO, INC.

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The Equal Employment Opportunity Commission (EEOC) has posted on its website two new guidance documents on the recently published final rule implementing the employment provisions of the Genetic Information Nondiscrimination Act (GINA). Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. The first guidance document provides background information on the Title II rule, while the second focuses on questions that might arise for small businesses.  Both guidance materials are presented in question and answer format, and clarify many of the provisions contained in the final rule.

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A recently-released report conducted by the Bureau of Labor Statistics (BLS) finds that the number of cases of nonfatal workplace injuries and illnesses that resulted in days away from work in the private sector declined by 11 % to 964,990 in 2009, representing the first time this category has fallen below 1 million since the BLS began collecting such data. The total private sector nonfatal workplace injury and illness incidence rate decreased by 6 % (106 cases per 10,000 full-time workers). According to the BLS, time away from work is considered a key measure of the severity of the occupational injuries and illnesses incurred.

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On Tuesday the U.S. Supreme Court heard oral arguments (pdf) in a case that could significantly impact class action litigation. The issue before the Court in AT&T Mobility v. Concepcion (09-893) is whether the Federal Arbitration Act (FAA) preempts states from conditioning the enforceability of an arbitration agreement on the availability of class-wide arbitration when that procedure is not necessary to ensure that parties to the agreement are able to vindicate their claims.

The dispute in this matter involved a consumer contract for wireless telephone services that contained both an agreement to arbitrate disputes and a class action waiver clause. In response to a putative class action filed by the Concepcions, the company sought to compel individual arbitration pursuant to the arbitration agreement and class action waiver the plaintiffs had signed.  The arbitration agreement at issue provided a number of pro-consumer terms, including the following: the company would pay all arbitration fees for non-frivolous complaints; the arbitration itself would be conducted in the county of the customer’s billing address; an allowance would be provided for the claimant to proceed in small claims court; the company would provide double the amount of attorneys’ fees and $7,500 if the ultimate arbitration award exceeded the company’s settlement offer; and a waiver of the company’s right to attorneys’ fees in the event it prevailed on the matter.

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Nearly a year after the employment provisions of the Genetic Information Nondiscrimination Act (GINA) took effect, the Equal Employment Opportunity Commission (EEOC) has issued a final rule (pdf) implementing these sections. Title II of GINA – which took effect on November 21, 2009 – prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information. Title II also prohibits retaliation against employees who complain about genetic discrimination. According to the EEOC, the final rule implements the various provisions of Title II consistent with Congress’s intent, provides some additional clarification of those provisions, and explains in greater detail the sections where Congress incorporated by reference provisions from other statutes. The final rule becomes effective 60 days after its publication in the Federal Register, which is scheduled for November 9, 2010.

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The Securities and Exchange Commission (SEC) has issued its proposed rule (pdf) implementing the securities whistleblower incentives and protection program contained in the newly-enacted Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank” or “Financial Reform” Act). The Dodd-Frank Act contains sweeping new provisions that create new federal whistleblower protections for employees. These enhanced protections, among other things, create a new incentive program to encourage individuals to report Securities Exchange Act of 1934 (“Exchange Act”) violations, and prohibit retaliation against an individual who takes advantage of this program.

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Tuesday's historic election radically changed the composition of Congress and the balance of power in Washington. While a few election results are still trickling in, Republicans are projected to gain around 60 seats in the House of Representatives, regaining majority control. Democrats will still control the Senate, albeit with a much slimmer margin. Senate Republicans will increase their numbers from 41 to 47 seats, with the outcome of the race in Washington still uncertain. Whether the shift in power in Congress produces compromise or gridlock remains to be seen. What is clear is that this new political landscape will necessarily alter the Obama Administration's labor and employment agenda. For more information on what employers can expect during the remaining weeks of the 111th Congress and the next Congress, continue reading Littler’s ASAP: How Will the Midterm Election Results Impact Labor & Employment Policy?

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The Department of Labor has launched on online “toolkit” to facilitate an employer’s recruitment, hiring, and retention of veterans. According to the agency, the toolkit “is designed to assist and educate employers who have made the proactive decision to include transitioning Service Members, Veterans and wounded warriors in their recruitment and hiring initiatives.” The online feature is broken up into six steps to help employers: design a strategy for hiring veterans; create an educated and welcoming environment for veteran employees; actively recruit veterans, wounded warriors and military spouses; hire and learn how to accommodate qualified veterans in the workplace; and promote a work environment that retains veteran employees. The final component of the toolkit provides a quick reference list of online resources to assist with the previous five steps.

In a statement, Ray Jefferson, assistant secretary for the department's Veterans' Employment and Training Service, said: “Many employers have told us that they are interested in developing or enhancing a veterans hiring initiative for their company, but that they don't know where to begin,” adding “[t]his toolkit was created with these employers in mind. It's designed to simplify the process and put valuable, vetted resources at the employer's fingertips.”

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