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

Early Saturday morning, the House of Representatives approved by a 235-189 margin the Full-Year Continuing Appropriations Act (H.R. 1) – otherwise known as the Continuing Resolution (CR) – that would fund the federal government through September 30, 2011. For days the House debated more than 150 of the nearly 600 proposed amendments to the legislation, including several that would deny funds to various agencies to implement the new health care reform law.  Continue reading this entry at Littler's Healthcare Employment Counsel. 

Photo credit: Bartek Szewczyk

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On February 10, the House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement held a hearing, “E-Verify – Preserving Jobs for American Workers,” in which it considered whether to make E-Verify mandatory for all employers. House Judiciary Committee Chairman Lamar Smith (R–TX ) favors the idea, as does the Subcommittee’s Chairman, Representative Elton Gallegly (R–CA). In introducing his reasons for supporting the expansion of E-Verify electronic employment verification program, Representative Smith stated: “With unemployment over 9% now for 21 months, jobs are scarce and families are worried. According to the Pew Hispanic Center, seven million people are working in the U.S. illegally. These jobs should go to legal workers.”  Continue reading this entry at Littler's Global Immigration Counsel.

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The DOL’s Office of Labor Management Standards (OLMS) has announced the initiation of its Persuader Reporting Orientation Program (PROP). According to the agency, this program is “designed to provide compliance assistance to employers and labor relations consultants that are likely to enter into reportable agreements or arrangements pursuant to LMRDA section 203.” Specifically, under this initiative, the OLMS compiles contact information of employers and their attorneys based on representation petitions filed with the NLRB. The OLMS will then use this information to send an orientation letter to the employers and to their representatives in the NLRB proceeding “informing them of their potential reporting obligations under the LMRDA, where to locate the reporting forms and instructions, and how to contact OLMS to ask questions or receive additional information.”  Continue reading this entry at Littler’s Labor Relations Counsel.

Photo credit: style-photographs

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The DOL’s Office of Federal Contract Compliance Programs (OFCCP) has issued a directive outlining Active Case Enforcement (ACE) procedures for conducting Supply & Service (S&S) compliance evaluations. In December 2010, the agency issued a directive to discontinue the former ACE process that had been in place since 2003. According to the agency, the former system was “primarily an abbreviated desk audit process” to expedite the closing of S&S contract compliance evaluations where there existed no evidence of systemic discrimination. The agency claimed that the former process “eroded” its enforcement authority and was of “limited utility.” According to the new directive, the updated ACE process “will more effectively utilize [the OFCCP’s] resources and strengthen its enforcement efforts.”

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The Department of Homeland Security (DHS) has announced that, on March 18, 2011, it will launch the E-Verify Self Check Program, a secure web portal that allows an individual to verify his or her work authorization status. Previously, only employers could conduct E-Verify checks, and, in the event of a possible mismatch, the prospective employee needed to resolve the matter, thereby delaying his or her possible hire and/or start date. The Self Check Program will allow individuals to correct any identity information errors that the E-Verify system might contain, thereby “provid[ing] a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.”  Continue reading this entry at Littler's Global Immigration Counsel.

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On Wednesday, the Equal Employment Opportunity Commission (EEOC) held a public meeting to address the alleged “emerging practice” of excluding currently unemployed job-seekers from applicant pools. In a letter (pdf) urging EEOC Chair Jacqueline Berrien to address this issue, several members of Congress requested that Berrien “issue a statement detailing how employers discriminating against the unemployed can open themselves up to disparate impact claims because a larger percentage of the unemployed population consists of minorities.” To that end, the EEOC’s meeting was broken into three panels to discuss the Department of Labor’s latest unemployment data, the use of unemployment status screening, and the impact of this alleged screening practice on the unemployed.

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On Wednesday, the full House Committee on Education and the Workforce held a hearing to discuss the policies and priorities of the Department of Labor. Earlier in the week, the agency released its 2012 budget request, which seeks $12.8 billion in discretionary budget authority and 17,848 full-time equivalent employees (FTE). Although the proposal would reduce the Department’s overall discretionary spending by 5% from current levels, the budget would increase funding for the agencies charged with regulating and enforcing worker protections. Several divisions within the DOL – the Wage and Hour Division (WHD), Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Employee Benefits Security Administration (EBSA), and the Office of Federal Contract Compliance Programs (OFCCP) – would each receive additional funding under a budget that allocates a total of $1.8 billion for DOL’s worker protection agencies. Given President Obama’s plan to freeze all non-security discretionary spending and DOL’s overall discretionary budget reduction, the increase in resources for worker protection demonstrates the Administration’s continued commitment to enhancing the regulation and enforcement of labor and employment laws. For a complete analysis of the DOL’s budget request, see Littler’s ASAP: U.S. Department of Labor's 2012 Budget Shows Increasing Resources Toward Regulation and Enforcement of Employment Laws.

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The Occupational Safety and Health Administration has issued a directive – Enforcement Guidance for Personal Protective Equipment in General Industry (pdf) – that provides enforcement personnel with instructions for determining whether employers have complied with the agency’s personal protective equipment (PPE) standards. This directive, effective as of February 10, 2011, takes into consideration recently revised PPE rules, and therefore supersedes the PPE Inspection Guidelines issued in June 1995. On November 15, 2007, the agency revised its standards on PPE regarding employer payment for required PPE. Generally, the rule requires employers to pay for the PPE used to comply with OSHA standards, with specific exceptions. On September 9, 2009, OSHA revised its standards regarding eye, face, head and foot protection. As discussed in the document’s executive summary, the new directive differs significantly from the former version in that it:

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On Tuesday, the House Subcommittee on Workforce Protections held a hearing –
Investigating OSHA's Regulatory Agenda and Its Impact on Job Creation – to examine recent regulatory actions taken by the agency and discuss ways to improve the rulemaking process. Subcommittee Chairman Tim Walberg (R-MI) stated that both employers and employees have a “shared goal” of creating a safe workplace, but argued that OSHA has “become an administration focused more on punishment than prevention.” 

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The House Subcommittee on Health, Employment, Labor and Pensions held a hearing on Friday to discuss emerging trends at the National Labor Relations Board. Panelists examined several recent Board decisions and General Counsel initiatives that have sparked controversy in recent months and offered differing opinions as to whether the agency has acted within the scope of its authority. In his opening statement, Subcommittee Chairman David P. Roe (R-TN) set the tone of the hearing, claiming that “the board abandoned its traditional sense of fairness and neutrality and instead embraced a far-more activist approach.”  Continue reading this entry at Littler’s Labor Relations Counsel.

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Although the pace has slowed somewhat, lawmakers continue to introduce new labor and employment legislation. The following bills have been introduced during the second month of the 112th Congress:

Wage and Hour

Rep. Donna Edwards (D-MD) reintroduced legislation that would amend the Fair Labor Standards Act (FLSA) to establish a base minimum wage for tipped employees. The Working for Adequate Gains for Employment in Services (WAGES) Act (H.R. 631) would mandate that tipped employees be paid at least $3.75 per hour. This amount would increase to $5 per hour a year after enactment. The following year, this base amount would increase to 70 percent of the minimum wage as established under section 6(a)(1) of the FLSA, or $5.50 per hour, whichever amount is greater. Although this bill would have a significant impact on the service industry if enacted, its chance of passage this term is slim.

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The DOL’s Employee Benefits Security Administration (EBSA) has announced that it is pushing back the applicability date of the new benefit plan disclosure rule from July 16, 2011 to January 1, 2012. First published on July 16, 2010, the interim rule requires certain service providers to employee pension benefit plans to disclose information that would enable plan fiduciaries to better assess the reasonableness of the fees being charged for plan services and to target potential conflicts of interest. The requirements now apply to plan contracts or arrangements for services in existence on or after January 1, 2012. According to the DOL’s press release, the purpose of the change is to give plans and their service providers sufficient time to comply with a final rule, which has yet to be issued. The EBSA’s Assistant Secretary Phyllis C. Borzi states that:

The department intended to have final rules in place sufficiently in advance of the July 16 applicability date to avoid compliance problems for both plans and their service providers.  Given the need to ensure a careful review of all the valuable input we received on the interim final rule, including suggestions for a summary document to further assist plan fiduciaries in their review of furnished information, we now believe plans and plan service providers would benefit from an extension of the rules applicability date.

Photo credit: Kameleon007

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On Thursday, the House Committee on Oversight and Government Reform held a hearing to discuss how regulations impact employers and job creation. Several business owners, advocates, and academics provided input on the benefits and detriments of current and proposed regulations, taking particular aim at recent proposals developed by the Occupational Safety and Health Administration (OSHA). The hearing coincided with the release of a report – Assessing Regulatory Impediments to Job Creation (pdf) – issued by the Committee. Findings of this report include the following:

• According to one study, small firms bear a regulatory cost of $10,585 per employee whereas large firms with more than 500 employees incur a cost of $7,755 per employee to comply with federal regulations.
• The manufacturing industry is hit the hardest by regulatory costs, with per firm costs at $688,944 – half a million dollars greater than the national average cost for all industries.
• Small manufacturers bear a proportionally larger regulatory burden with an estimated cost of $26,316 per employee – more than double the burden that is faced by larger manufacturers.
• While the Department of Labor has pulled back on two of its most controversial proposals, OSHA noise standards and OSHA Form 300 Musculoskeletal Disorders (MSD) reporting requirements, job creators expressed significant concern for the OSHA Combustible Dust Management rule, proposed changes in OSHA Consultation Agreements, and OSHA’s Injury & Illness Prevention Program (“I2P2”).

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The Securities and Exchange Commission (SEC) has adopted a final rule (pdf) governing shareholder approval of executive compensation and “golden parachute” compensation arrangements required under the Dodd-Frank Wall Street Reform and Consumer Protection Act. Among other things, the Dodd-Frank Act requires public companies subject to the federal proxy rules to provide their shareholders with a non-binding “say-on-pay” vote on executive compensation and a separate non-binding vote on how often such votes should occur. In addition, shareholders are entitled to an advisory vote on compensation arrangements and understandings in connection with merger transactions, commonly referred to as golden parachutes.

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USCIS has announced that it is beta testing a web-based tool – Validation Instrument for Business Enterprises (VIBE) – designed to enhance the agency’s adjudications of certain employment-based immigration petitions by using commercially available data to validate basic information about companies or organizations petitioning to employ a foreign worker.  Continue reading this entry at Littler's Global Immigration Counsel.

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As expected, on Wednesday Senators opposed to the Affordable Care Act failed to gain sufficient votes to include an amendment to the Federal Aviation Administration reauthorization bill that would have repealed the health care reform law in its entirety. While all 47 Republican Senators voted in favor the amendment (S. AMDT. 13), at least 60 votes were needed. Although there was some speculation that a few Democratic senators would cross the aisle and support the amendment, none cast a vote in its favor. Last month, the House approved by a vote of 245-189 the Repealing the Job-Killing Health Care Law Act (H.R. 2), legislation Sen. Majority Leader Harry Reid (D-NV) has said he has no plans to consider in the Senate. Including the repeal language via an amendment to a larger bill that already has significant bipartisan support was a back-door maneuver to force the issue to a vote in that chamber.  Continue reading this entry at Littler's Healthcare Employment Counsel.

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The Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has issued a proposed rule that would require certain motor carriers operating commercial motor vehicles (CMVs) in interstate commerce to use electronic on-board recorders (EOBRs) to document their drivers’ hours of service (HOS). EOBRs are devices attached to commercial vehicles that automatically record the number of hours drivers spend operating the vehicle. As discussed in a press release, the proposal “would also relieve interstate motor carriers from retaining certain HOS supporting documents, such as delivery and toll receipts, which are currently used to verify the total number of hours drivers spend operating the vehicle.” The proposal also lists the supporting documents that all motor carriers currently required to maintain Records of Duty Status (RODS) logbooks would still be required to obtain and keep.

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