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 Office of Federal Contract Compliance Programs (OFCCP) is proposing to rescind guidance materials addressing compensation discrimination that would ultimately give the agency more leeway in finding federal contractors and subcontractors liable for pay disparities. According to the agency, the first guidance document at issue – Interpreting Nondiscrimination Requirements of Executive Order 11246 with respect to Systemic Compensation Discrimination (Standards) (pdf) – has limited the OFCCP’s ability to “effectively investigate, analyze and identify compensation discrimination.” As for the second document up for rescission – Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Executive Order 11246 with respect to Systemic Compensation Discrimination (Voluntary Guidelines) (pdf) – the OFCCP claims that it has been “largely unused” by federal contractors and is not an effective enforcement strategy.

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The Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has released a proposed rule amending the hours of service requirements for drivers of property-carrying commercial motor vehicles (CMVs). As discussed in a news release, the proposal would keep the “34-hour restart” provision allowing drivers to restart the clock on their weekly 60 or 70 hours by taking at least 34 consecutive hours off-duty, but that period would have to include two consecutive off-duty periods from midnight to 6:00 a.m. Drivers would be allowed to use this restart only once during a seven-day period.

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This second installment of the two-part EEOC year-end roundup includes a review of noteworthy EEOC court opinions involving EEOC subpoenas, challenges to EEOC litigation based on the failure to engage in good faith conciliation, the applicable statute of limitations in EEOC pattern or practice cases and potential discovery involving the EEOC. Click here to read Part I, which focused on EEOC charges, time targets, and litigation. While there have been a substantial number of published decisions involving the EEOC over the past several months, cases involving the following areas are particularly worth mentioning:

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On Wednesday the Senate officially confirmed the nominations of several members of the Equal Employment Opportunity Commission who had been placed with the EEOC via recess appointment in March 2010. The individuals and their terms are as follows:

• Jacqueline Berrian, who President Obama had appointed to be the agency’s chair, will serve until July 1, 2014.
• Chai Feldblum will serve as an EEOC Commissioner until July 1, 2013.
• Victoria Lipnic will serve as an EEOC Commissioner until July 1, 2015.
• P. David Lopez will serve as General Counsel for a term of four years.

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The Department of Labor has scheduled a series of web chats to discuss various portions of its 2011 regulatory agenda. The agenda, which was released on Monday, indicates that the DOL plans to take action on more than 80 labor and employment-related regulations over the course of the upcoming year. The web Q&A sessions will be broken down by DOL subagency, and will take place as follows:

• Employee Benefits Security Administration (EBSA) - Tuesday, January 4, 2 p.m. ET
• Occupational Safety and Health Administration (OSHA) - Wednesday, January 5, 2:30 p.m. ET
• Employment and Training Administration (ETA) - Thursday, January 6, 12 p.m. ET
• Wage and Hour Division (WHD) - Thursday, January 6, 2 p.m. ET
• Office of Labor-Management Standards (OLMS) - Friday, January 7, 12 p.m. ET
• Office of Contract Compliance Programs (OFCCP) - Friday, January 7, 1:30 p.m. ET

Pre-registration is not required. More information on the various regulations under consideration can be found here.

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In keeping with the National Labor Relations Board’s recent efforts to comport with the Obama Administration’s efforts to enhance regulatory enforcement, including penalties, the Board’s Acting General Counsel (GC) has announced (pdf) a new initiative targeting employers during union election campaigns. In a memorandum (pdf) sent to regional directors and officers, Acting GC Lafe Solomon urges all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing. It should be noted that the so-called Employee Free Choice Act (EFCA) also called for enhanced penalties for alleged violations of the NLRA during a union organizing campaign.  Continue reading this entry at Littler's Labor Relations Counsel.

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On December 22, 2010, the National Labor Relations Board published a proposed rule (pdf) that would require all private sector employers covered by the National Labor Relations Act to post a notice informing employees of their NLRA rights. This requirement would be imposed on all employers covered by the NLRA even if there is no union in place. The notice would be similar in form and content to the notice (pdf) the Department of Labor recently approved for use by federal contractors. As stated in a fact sheet, (pdf) the purpose of the proposed rule is “to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.” Unlike the rule for federal contractors, this proposed rule would apply to the vast majority of private sector employers and would create significant compliance obligations, along with serious potential non-compliance liability, on most employers.  Continue reading this entry at Littler’s Labor Relations Counsel.

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On Tuesday, the House of Representatives approved by a 215 – 144 margin the FDA Food Safety Modernization Act (H.R. 2751), legislation that, among other things, provides whistleblower protections to employees involved with the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. Although the Senate had passed this measure in November, the bill was later invalidated for technical reasons. Meanwhile, on December 9 the House approved a continuing appropriations bill that contained the food safety provisions. In a surprise vote last Sunday, the Senate re-approved the standalone bill by unanimous consent.

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As 2010 comes to a close and employers continue to deal with an emboldened EEOC, there are various noteworthy EEOC developments to consider, including both agency and court developments. The first of this two-part series on the EEOC’s year-end review includes highlights from the EEOC's Annual Report, particularly focusing on the increased number of EEOC charges and time targets for investigating discrimination charges and a summary of recent EEOC litigation, including the types of lawsuits being filed and the primary jurisdictions recently involved.

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According to the Equal Employment Opportunity’s (EEOC) Semiannual Regulatory Plan and Agenda, a final rule implementing the employment provisions of the Americans With Disabilities Act Amendments Act (ADAAA) will be issued within in the next two weeks. The ADAAA, which was signed into law on September 25, 2008, significantly expands the definition of disability, enabling more individuals to be covered by the ADA. In September 2009, the EEOC issued proposed regulations to reflect that the expanded ADA definition of disability should be interpreted broadly. The EEOC’s regulatory agenda, which lists all of the rules under active consideration for the upcoming year as well as those rules enacted within the past six months, states that a finial ADAAA rule will be issued before the year is out.

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In the next year, the Department of Labor (DOL) intends to issue 35 proposed rules and 25 final rules, consider drafting 13 new rules, and initiate 8 long-term actions. As outlined in the agency’s Semiannual Regulatory Agenda, nearly half of such regulatory activities will be undertaken by the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA). The sheer volume of possible regulatory activity is in keeping with the DOL’s renewed focus on rulemaking and enforcement. A complete list of the agency’s Fall 2010 Rule List can be found here. Highlights of the DOL’s intended regulatory activity include the following:

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The DOL’s Wage and Hour Division (WHD) will issue a request for information (pdf) in Tuesday’s edition of the Federal Register regarding the new requirement that most employers provide a reasonable break time for lactating mothers. The Patient Protection and Affordable Care Act (“Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide rest breaks and suitable space for employees who are nursing to express breast milk for up to one year after the child’s birth. The notice to be issued by the WHD includes the DOL’s preliminary interpretations of the new break time amendment, and seeks information and comment on a number of issues that have arisen under the new requirement. The WHD notes, however, that at this point it does not intend to issue regulations implementing the break time provision. The request for information is solely for the purpose of drafting additional employer guidance.

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On Monday the Department of Labor (DOL) will publish its Semiannual Regulatory Plan (pdf) in the Federal Register. The Regulatory Plan is a subset of the DOL’s regulatory agenda and contains a statement of the DOL’s regulatory priorities and actions it considers to be the most important and significant. The full DOL regulatory agenda will be made available on Monday and will be posted on www.reginfo.gov. The regulatory agenda lists the regulations the DOL expects to have under active development at any stage for the upcoming one-year period, as well as those actions completed within the past six months. The DOL’s regulatory agenda indicates that the Occupational Safety and Health Administration (OSHA) will be very active. Specifically, OSHA is taking steps to develop rules governing occupational exposure to beryllium and food flavorings containing diacetyl and diacetyl substitutes. OSHA will also undertake a routine review of its Bloodborne Pathogen Standard to assess whether there is still a need for such a standard. At the proposed rule stage, OSHA has developed possible regulations governing occupational exposure to crystalline silica.

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On Friday, President Obama is expected to sign into law compromise legislation that would extend expiring tax cuts. The $858 billion tax deal will also extend emergency unemployment benefits an additional 13 months, and cut Social Security payroll taxes by 2 percent for one year on income up to $106,800. The House of Representatives approved the measure (H.R. 4853) by a 277-148 margin late Thursday night. An almost equal number of Democrats (139) and Republicans (138) voted in its favor. On Wednesday, the Senate overwhelmingly approved the bill by a vote of 81-19.

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As expected, the contentious tax compromise bill (H.R. 4853) cleared a procedural hurdle on Monday when the Senate secured enough votes to invoke cloture and move the measure closer to a final vote. Among other things, the bill would extend expanded unemployment insurance benefits through 2011, and cut payroll taxes by 2 percentage points to 4.2 percent. By a margin of 83-15, the Senate voted in favor of the measure, enough to thwart a potential filibuster. A final Senate vote is expected to occur on Tuesday. If approved as anticipated, the legislation would then move to the House of Representatives, where it will face a tougher reception.

Update:  On Wednesday, the Senate approved the measure by a vote of 81-19.

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With its December 6 decision in Dana Corp., 356 NLRB No 49, (pdf) the Obama Board has given its approval to broader use of agreements between employers and unions designed to encourage the organization of an employer’s non-represented workforce. The decision represents a step forward in the Obama Board’s agenda for changing existing interpretations and applications of U.S. labor law in ways that labor organizations hope will ensure its continuing relevance and vitality in the twenty-first century. For some, the decision suggests that the Board may be privileging the institutional interests of labor unions over the individual or even collective interests of the employees whom federal labor law was designed to protect.  Continue reading this entry at Littler’s Labor Relations Counsel.

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The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) will issue an interim rule (pdf) that adopts the Department of Labor’s final rule implementing Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf) The DOL issued its final rule on this EO last May. The EO at issue mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor post a notice “in all places where notices to employees are customarily posted both physically and electronically,” informing them of their rights under the National Labor Relations Act (NLRA), and revokes a Bush-era EO that had required federal contractors to post a notice (commonly known as “Beck” notices) to their employees informing them that they were not required to join or maintain membership in a labor union, and that those who were not union members – but were nonetheless required to pay dues or fees pursuant to a union security agreement – could object to paying a portion of those dues or fees to support activities that are not related to collective bargaining, contract administration or grievance adjustment.  Continue reading this entry at Littler’s Labor Relations Counsel.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a directive discontinuing the agency’s Active Case Management (ACM) procedures. Instituted in July 2003, the ACM process was “primarily an abbreviated desk audit process” to expedite the closing of supply and service (S&S) contract compliance evaluations where there existed no evidence of systemic discrimination. The agency considered cases with fewer than 10 potential victims to fall under this category. According to the directive, absent such evidence of widespread discrimination, full desk audits were to be performed only once out of every 25 such cases, and onsite evaluations only once out of every 50th review. The OFCCP claims in the directive that the ACM has caused the agency to “narrow the focus of its enforcement efforts” and has “eroded” its enforcement authority, thereby prompting its revocation.

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On Wednesday the House of Representatives approved a continuing appropriations bill that incorporates the FDA Food Safety Modernization Act (S. 510), including its food industry worker whistleblower protection provisions. The Senate had approved the food safety measure on November 30. The House cleared the broader 2011 Full-Year Continuing Appropriations Act (H.R. 3082) by a narrow 212-206 margin. The larger funding bill will now need Senate approval.

The whistleblower provisions at issue apply to employees involved with the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. Under these provisions, an employer in the food industry would be precluded from firing or otherwise discriminating against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee informed the employer or a government official of a perceived violation of the food safety act; testified or otherwise assisted in a proceeding regarding the violation; or objected to or refused to participate in an activity or practice that he or she believed to be in violation of the Act. The aggrieved employee would have the right to file a complaint with the Department of Labor and, if the complaint were to remain unresolved within a proscribed time period, an action in federal court.

Photo credit:  MBPHOTO, INC.

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On Wednesday, the House of Representatives blocked passage of the Robert C. Byrd Mine Safety Protection Act of 2010 (H.R. 6495), a streamlined version of a more comprehensive occupational safety measure introduced earlier this year. Although the vote in favor of the bill was 214 to 193, a two-thirds majority approval was needed to suspend the rules and pass the bill. Given yesterday’s vote and the approach of a new Congress, any further action on this bill seems unlikely.

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As expected, the Senate defeated a motion to advance the Public Safety Employer-Employee Cooperation Act of 2010 (PSEECA) (S. 3991) on Wednesday by a vote of 55 to 43, despite a last-ditch attempt to move the measure before the new Congress takes over in January. The PSEECA, which was reintroduced last week, 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 public safety officers and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. The failure to muster the 60 votes needed to overcome a filibuster means that this measure has little chance of becoming law in the foreseeable future.

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The U.S. Department of Defense (DoD) will issue a final rule (pdf) implementing section 8116 of the DoD Appropriations Act for Fiscal Year 2010, which restricts a contractor’s use of mandatory arbitration agreements in certain instances. Specifically, section 8116 bans contractors or subcontractors at any tier that receive funds appropriated by the Act for a contract in excess of $1 million from enforcing mandatory, pre-dispute agreements to arbitrate “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” After June 17, 2010, contractors are required to certify compliance by their subcontractors. The Secretary of Defense is permitted to waive the applicability of this prohibition to a particular contract or subcontract in the interest of national security. Additionally, the arbitration limitations do not apply to a contractor’s or subcontractor’s agreement with employees or independent contractors that cannot be enforced in the U.S., nor do they apply to the acquisition of commercial items, including commercially available off-the-shelf items.

The final rule adopts the interim rule issued in May 2010 with certain minor changes. Specifically, the final rule further explains the DoD waiver process and the conditions under which the DoD’s waiver authority will be exercised. The DoD’s waiver determination will “set forth the grounds for the waiver with specificity, state any alternatives considered, and explain why each of the alternatives would not avoid harm to national security interests.” The final rule is effective as of the date of publication in the Federal Register, which is scheduled for December 8, 2010.

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The Department of Labor’s Office of Inspector General (OIG) has issued its Semiannual Report to Congress, (pdf) outlining its significant accomplishments made during the six-month period ending September 30, 2010 and making a number of legislative recommendations.  The OIG conducts audits and evaluations to review the effectiveness, efficiency, economy, and integrity of all DOL programs and operations, including those performed by its contractors and grantees. In addition, the OIG is responsible for conducting criminal investigations regarding labor union racketeering and organized crime. According to the report, during the six-month period, the OIG’s investigations resulted in 175 indictments, 158 convictions, 190 cases referred for prosecution, 83 cases referred for administrative/civil action, and $85 million in investigative recoveries, cost-efficiencies, restitutions, fines and penalties, forfeitures, and civil monetary actions.

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Buried in the food safety bill that recently passed the Senate is provision granting employees involved with the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food whistleblower protection rights. The whistleblower provisions contained in the food safety legislation reflect the continuing effort by Congress to expand whistleblower protections. Section 402 of the FDA Food Safety Modernization Act (S. 510),  would make it unlawful for an employer in the food industry to:

discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee's initiative or in the ordinary course of the employee's duties (or any person acting pursuant to a request of the employee) --

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Sen. Harry Reid (D-NV) this week reintroduced the Public Safety Employer-Employee Cooperation Act of 2010 (PSEECA) (S. 3991), legislation that would provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them. Additionally, the measure would establish minimum standards for collective bargaining rights for public safety officers and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights.

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The U.S. Department of Labor informed Congress yesterday that the President intends to nominate Leon Rodriguez as Administrator of the Wage and Hour Division.

The top job at DOL’s Wage & Hour Division has been vacant during the Obama Administration. The President’s first nominee, Lorelei Boylan, withdrew from the confirmation process in October 2009. Ms. Boylan’s confirmation was stalled because of the controversy over the nomination of Solicitor of Labor Patricia Smith (confirmed on February 4, 2010); Ms. Boylan worked for Ms. Smith at the New York Department of Labor.  Continue reading this entry at Littler's Wage & Hour Counsel.

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued a proposed rule that creates additional retirement plan disclosure requirements related to target date retirement funds (TDFs) and other similar investments offered in 401(k)-type pension plans. As discussed in an EBSA fact sheet, while TDFs are designed to be convenient vehicles for individuals to save for retirement, they are “not managed according to uniform strategies,” and are therefore subject to varying degrees of risk and investment results over time. The proposed rule seeks to provide individuals participants with more information about TDFs so that they can better evaluate them and assess their investment plans. Specifically, the proposal would amend two existing regulations – the qualified default investment alternative regulation and the participant-level disclosure regulation – to require plan fiduciaries to provide the following, among other information, to all participants and beneficiaries in participant-directed individual account plans:

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