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

Less than one month into the new session, the 112th Congress continues to introduce labor and employment-related bills at a rapid pace. While a substantial portion of new legislation targets health care, a number of bills have focused on employment-related reforms. The following measures were offered during the past week alone:

Immigration

On January 24, Rep. Jeff Flake (R-AZ) re-introduced the Stopping Trained in America Ph.D.s From Leaving the Economy (STAPLE) Act of 2011 (H.R. 399), a bill that would exempt foreign students who have earned a Ph.D. degree in science, technology, engineering, or mathematics from a U.S. university and have a job offer in the U.S. from visa quotas. In a statement, Flake said: “At a time when there’s a lot of focus on keeping the U.S. competitive globally, if we don’t keep these highly-skilled workers in the U.S. after they’ve graduated, we’re going to see the next round of high tech companies created overseas rather than here in the United States.”

• Email This
• Print
• Trackbacks
• Share Link

The Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has announced that it will hold a public listening session to solicit comments and information on its recently-proposed rule to amend the hours of service requirements for drivers of property-carrying commercial motor vehicles (CMVs). The session will be held on February 17, 2011 from 10:00 a.m. until 5:00 p.m. EST at the Crowne Plaza Washington National Airport, 1480 Crystal Drive, Arlington, VA 22202. The session will end sooner if all participants who intend to provide input have done so. In conjunction with this listening session, the FMCSA will hold an online comment and question forum. The agency will post information on how to participate online and via telephone here.

According to the summary to be published in Monday’s edition of the Federal Register, the FMCSA seeks information as to what factors, issues, and data it should consider as it analyzes responses to its proposed rule. A list of specific questions the agency seeks responses to can be found in the Federal Register notice. 
 

• Email This
• Print
• Trackbacks
• Share Link

On January 27, Sen. Jim DeMint (R-SC) reintroduced the Secret Ballot Protection Act (SBPA) (S. 217), legislation that would amend the National Labor Relations Act to guarantee the right to secret ballot union representation elections. Essentially, this measure would make it an unfair labor practice under the NLRA for an employer to recognize a union that has not been selected via secret ballot. In addition, this bill would make it unlawful for a union that has not been chosen as the employees’ exclusive representative in a secret ballot election conducted by the NLRB to cause or attempt to cause an employer to recognize or bargain with it.  Continue reading this entry at Littler's Labor Relations Counsel. 

Photo credit: ericsphotography

• Email This
• Print
• Trackbacks
• Share Link

Although it is considered a long-shot attempt, President Obama is trying once again to seat controversial nominee Craig Becker to the National Labor Relations Board for a full term. First nominated in July 2009 and seated via recess appointment in April 2010, Becker, who served as Associate General Counsel to both the SEIU and the AFL-CIO, has not tread an easy path to the NLRB and faces certain opposition in light of Obama’s latest move.  Continue reading this entry at Littler’s Labor Relations Counsel.

• Email This
• Print
• Trackbacks
• Share Link

On Wednesday, the House Committee on Education and the Workforce held a hearing to discuss the state of the American workforce. Panelists pointed to a number of factors that they believe hinder job creation and economic growth, and made suggestions to jump-start the economy.

Robert McDonnell, Governor of Virginia, claimed that “excessive federal regulations” and the new health care requirements were imposing significant burdens on small businesses. Specifically, McDonnell criticized the National Labor Relations Board’s proposed rule that would require almost all private sector employers to post in the workplace a notice to employees outlining their rights under the National Labor Relations Act. McDonnell explained that this proposed notice “lists seven bullet points that state employees have the right to organize, form or join a labor union and repetitively state they have the right to negotiate their wages, benefits and working conditions with their employer. This is counterproductive and detrimental to the message we are trying to send in Virginia.”

• Email This
• Print
• Trackbacks
• Share Link

The Occupational Safety and Health Administration (OSHA) has announced that it is temporarily withdrawing its proposal to restore a column to the OSHA Injury and Illness (Form 300) Log that employers would use to record work-related musculoskeletal disorders (MSD). The agency issued a proposed rule to amend its recordkeeping requirements to include the MSD column last January. According to the announcement, OSHA is doing so in order to “seek greater input from small businesses on the impact of the proposal . . ."  While expressing concern that MSD “remain the leading cause of workplace injury and illness in this country,” OSHA’s Assistant Secretary of Labor David Michaels acknowledged that the proposal “has raised concern among small businesses, so OSHA is facilitating an active dialogue between the agency and the small business community." To that end, Michaels said OSHA and the U.S. Small Business Administration's Office of Advocacy will hold a public meeting to solicit further comment on the proposal.

This notice comes on the heels of yet another OSHA proposed rule withdrawal. Last week, the agency announced that it was rescinding its proposed interpretation of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards because of concern voiced by the business community. Both withdrawals follow President Obama’s recent executive order and memoranda to federal agencies directing rulemakers to consider how regulations impact small businesses and economic development.

Photo credit: borisyankov

• Email This
• Print
• Trackbacks
• Share Link

In a decision that may subject employers to more retaliation lawsuits, the Supreme Court in Thompson v. North American Stainless (pdf) has held that under certain circumstances, a third party has standing to bring a retaliation suit under Title VII of the Civil Rights Act. In this case, the plaintiff and his fiancée worked at the same company. The fiancée filed a charge of sex discrimination against the employer with the Equal Employment Opportunity Commission (EEOC). Shortly thereafter, the company terminated the plaintiff, who subsequently filed suit alleging he had been illegally retaliated against because his fiancée had filed a discrimination complaint. A divided Sixth Circuit Court of Appeals ultimately found that Title VII “does not permit a retaliation claim by a plaintiff who did not himself engage in protected activity.” The Supreme Court disagreed, finding that because he fell within the “zone of interests” protected by Title VII, the third-party plaintiff had standing to sue.

• Email This
• Print
• Trackbacks
• Share Link

Earlier this week, the United States Supreme Court in NASA v. Nelson (pdf) upheld the National Aeronautics and Space Administration’s (NASA) right to conduct reasonable background checks on the employees of government contractors. While the case focused on the scope of background checks conducted by the federal government, the Court’s ruling provides some useful guidance for private employers as well.  Continue reading this entry at Littler's Workplace Privacy Counsel.

• Email This
• Print
• Trackbacks
• Share Link

On December 16, 2010, OFCCP Director Patricia Shiu signed Directive 293 (pdf) to provide “comprehensive guidance for assessing when health care providers and insurers are federal contractors and subcontractors based on their relationship with a Federal health care program or with participants in a Federal health care program.” This new directive was aimed at clarifying the confusion left by two prior OFCCP directives (Nos. 189 and 262) as to the types of arrangements that would subject medical providers and hospitals to OFCCP’s jurisdiction.  Continue reading this entry at Littler's Healthcare Employment Counsel.

• Email This
• Print
• Trackbacks
• Share Link

As expected and after two days of debate, the House of Representatives on Wednesday approved by a vote of 245-189 the Repealing the Job-Killing Health Care Law Act (H.R. 2), legislation that would repeal the Affordable Care Act in its entirety. Although the vote was largely along party lines, Reps. Dan Boren (D-OK), Mike McIntyre (D-NC) and Mike Ross (D-AR) broke rank and voted in favor of the bill. Despite its passage, the repeal legislation has little to no chance of becoming law this session. Sen. Majority Leader Harry Reid (D-NV) has said he has no plans to consider the bill in that chamber – which still enjoys a slim Democratic majority – and President Obama has stated that he would veto any efforts to repeal the health care law. Wednesday’s House vote, therefore, was largely symbolic and likely a means to gain momentum for more piecemeal reform. Continue reading this entry at Littler’s Healthcare Employment Counsel.

• Email This
• Print
• Trackbacks
• Share Link

The Occupational Safety and Health Administration (OSHA) has announced that it is withdrawing its proposed interpretation of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards. The agency proposed this change in October 2010. The 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. The proposed interpretation would have clarified that feasibility in this instance means “capable of being done” or “achievable.”

• Email This
• Print
• Trackbacks
• Share Link

On Tuesday President Obama signed an Executive Order (EO) designed to improve regulation and regulatory review of rules that potentially hamper economic growth and job creation. The issuance of this EO, which supplements a 1993 EO governing contemporary regulatory review, is widely viewed as an outreach gesture to the business community. Notably, the EO directs federal agencies developing regulations to “use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” In essence, the EO brings greater attention to the potential cost and burden of new regulations to businesses. According to a fact sheet on the President’s regulatory strategy, the “President requires Federal agencies to design cost-effective, evidence-based regulations that are compatible with economic growth, job creation, and competitiveness.”

• Email This
• Print
• Trackbacks
• Share Link

The Occupational Safety and Health Administration (OSHA) will issue a final rule (pdf) that outlines the procedures for handling retaliation complaints under the whistleblower provisions of six environmental statutes and Section 211 of the Energy Reorganization Act (ERA) of 1974, as amended. OSHA is responsible for enforcing the whistleblower provisions of 20 separate statutes. The stated purpose of the final rule is to make the employee protection provisions “as consistent as possible with the more recently promulgated procedures for handling retaliation complaints under other whistleblower provisions administered by [OSHA].”

• Email This
• Print
• Trackbacks
• Share Link

Despite the initial focus on health care repeal, several lawmakers have introduced labor and employment-related legislation during the first two weeks of the new 112th Congress. Some aim to tweak existing laws, while others call for more massive overhauls. Rep. Michele Bachmann (R-MN), for instance, introduced a bill (H.R. 87) the first day of the new legislative term to repeal the Dodd-Frank Wall Street Reform and Consumer Protection Act which was signed into law on July 21, 2010. This bill contains several employment related provisions dealing with executive compensation, arbitration, and whistleblower protections. Although the chances of repealing the Dodd-Frank Act are slim, greater scrutiny of and challenges to its implementation are expected.

• Email This
• Print
• Trackbacks
• Share Link

The U.S. Supreme Court has upheld a Treasury Department rule that considers medical residents as full-time employees subject to Federal Insurance Contributions Act (FICA) payroll taxes. In Mayo Foundation v. U.S. (09-837), (pdf) the Court was asked to consider whether the stipends provided to medical residents that perform medical and patient care services for 40 or more hours per week as part of an accredited graduate medical education program are subject to FICA, commonly referred to as “Social Security” taxes, which are imposed on both employers and employees based upon wages paid. Among the many statutory exceptions to this tax requirement is the “student” exception, which exempts “service performed in the employment of. . . a school, college, or university . . . if such service is performed by a student who is enrolled and regularly attending classes at such school, college, or university.” A Treasury Department amended regulation interpreting this student exemption was issued in 2004. The amended regulation clarified, among other things, that:

• Email This
• Print
• Trackbacks
• Share Link

During Friday’s online chat to discuss the Office of Federal Contract Compliance Programs’ (OFCCP) regulatory agenda, Director Patricia Shiu spent a significant amount of time fielding questions about possible changes to the agency’s compensation data analysis methods. Recently, the agency issued a proposed rescission of its interpretive standards and voluntary guidelines regarding the analysis of compensation data. Shiu acknowledged that the agency is “taking a much stronger approach to enforcement on compensation discrimination, as part of our effort to, once and for all, end the wage gap between men and women.” To that end, the agency plans to publish next month an advance notice of proposed rulemaking (ANPRM) to solicit public comments about developing a new compensation tool to help the OFCCP better collect data about wages. In addition, the OFCCP will hold a series of stakeholder meetings to gather information regarding ways to analyze compensation.

• Email This
• Print
• Trackbacks
• Share Link

On Friday, John Lund, Director of the Office of Labor-Management Standards (OLMS), conducted an online chat to discuss the agency’s upcoming regulatory activities. Lund noted, for example, that by July 2011, the agency plans to issue a final rule on Form LM-30, the Labor Organization Officer and Employee Report required under the Labor-Management Reporting and Disclosure Act (LMRDA), “to identify potential conflicts of interest between the labor organization officials and their labor organizations.” A proposed rule to revise this disclosure form was published in August 2010.  Continue reading this entry at Littler's Labor Relations Counsel. 

• Email This
• Print
• Trackbacks
• Share Link

Wasting no time, the House of Representatives on Friday voted 236-181 in favor of a rule to consider the Repealing the Job-Killing Health Care Law Act (H.R. 2), (pdf) one of many bills introduced this week to repeal the Affordable Care Act. Only 4 Democrats joined 232 Republicans in voting for the rule. The rule provides for several hours of debate on the measure without any amendments. The vote on whether to pass this legislation is scheduled to take place on Wednesday, January 12. Although the House is expected to approve the bill, it will likely die in the Senate where Democrats still hold a slim majority. Even if the Senate were to clear the repeal measure, President Obama has already stated that he would exercise his veto power to save the health care law. The House’s symbolic gesture, however, now paves the way for the introduction of smaller bills aimed to chip away at the Affordable Care Act and deny funding to implement it.  Continue reading this entry at Littler's Healthcare Employment Counsel.

Photo credit:  ODonnell Photograf

• Email This
• Print
• Trackbacks
• Share Link

Despite the flurry of questions posed to the Deputy Administrator of the Wage and Hour Division (WHD) during Thursday’s live web chat on the WHD’s regulatory agenda, Nancy Leppink kept her responses vague and noted that many regulatory proposals were still under development and therefore not ripe for discussion. For example, many chat participants sought clarification and insight regarding the agency’s intent to propose regulations that would modify the “companionship services” exemption under the Fair Labor Standards Act (FLSA), thereby subjecting many home care workers to the Act’s minimum wage and overtime requirements. Leppink said that the notice of proposed rulemaking (NPRM) on this topic is not scheduled to be issued until October, and therefore any in-depth response would be premature.

• Email This
• Print
• Trackbacks
• Share Link

During OSHA’s live web chat, which was held on Wednesday, Assistant Secretary of Labor David Michaels reiterated that the agency intends to publish five new final rules in 2011. The new standards include those addressing: Hazard Communication and Standards Improvement; Confined Spaces in Construction; General Working Conditions for Shipyards; and Electric Power Transmission. Michaels also said the agency intends to publish final rules for several whistleblower regulations. In addition, OSHA plans to publish a proposed rule for crystalline silica this Spring.

• Email This
• Print
• Trackbacks
• Share Link

President Obama has nominated Terence F. Flynn to be a member of the NLRB. As expected, Obama has also named Lafe E. Solomon to be the agency’s General Counsel (GC). Solomon has been serving as acting GC since former GC Ronald Meisburg stepped down in June eight weeks shy of the end of his term. Since both nominations have been forwarded to the Senate for confirmation, it is expected that the two nominees will be voted on as a package deal.

Flynn currently works as Chief Counsel to the lone Republican NLRB member Brian Hayes, having served in the same capacity for former Republican member Peter Schaumber. Schaumber left the Board in August after his second term expired. Prior to his position at the NLRB, Flynn worked in private practice. If the Senate confirms Flynn, the NLRB will once again be operating with a full five-member Board.

• Email This
• Print
• Trackbacks
• Share Link

During the DOL’s Employee Benefits Security Administration’s (EBSA) live web chat held on Tuesday, EBSA Assistant Secretary Phyllis Borzi responded to questions aimed at the pension and welfare benefit initiatives contained in the DOL’s Semiannual Regulatory Agenda, as well as the interim final regulations outlining the procedures for internal and external review of adverse health benefit claims decisions.  Borzi noted that in the coming months the EBSA will focus on completing its work in pension and welfare plan transparency initiatives.  In particular, the agency plans to finalize the interim final rule relating to reasonable contracts and arrangements under section 408(b)(2) of ERISA. The EBSA will also consider whether and to what extent similar fee and compensation disclosure requirements will be applied to service relationships in the welfare plan context.

• Email This
• Print
• Trackbacks
• Share Link

Incoming House Majority Leader Eric Cantor (R-VA) has introduced legislation to repeal the Affordable Care Act, which is scheduled to be voted on next Wednesday. The introduction of the two-page Repealing the Job-Killing Health Care Law Act (pdf) is considered by most to be a largely symbolic gesture, as its chances of becoming law are slim. While the House of Representatives – with 242 Republican members – will likely have sufficient votes to pass this measure, the bill will face a tougher hurdle in the Senate, where Democratic members still hold a majority. In addition, President Obama would surely exercise his veto power in the unlikely event the Senate approves the legislation.  Continue reading this entry at Littler’s Healthcare Employment Counsel.

Photo credit: MBPHOTO, INC.

• Email This
• Print
• Trackbacks
• Share Link