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

The EBSA has posted on its website a fact sheet on the definition of “fiduciary” under the Employee Retirement Income Security Act (ERISA). The agency defines a plan fiduciary “to include anyone who gives investment advice for a fee or other compensation with respect to any moneys or other property of a plan, or has any authority or responsibility to do so.” ERISA imposes certain disclosure requirements and standards of conduct on those considered retirement plan fiduciaries. The fact sheet includes background on the term, developments to retirement plans that have caused the agency to reevaluate its definition of fiduciary, and an overview of its proposed rule to revise this definition. Specifically, the EBSA is in the process of drafting a final rule on proposed changes to the definition of fiduciary that would result in a broader range of individuals who provide investment advice to be deemed a fiduciary under ERISA.

Additionally, the EBSA has released complete transcripts from the public hearings the agency held to address when a person is deemed a fiduciary by reason of giving investment advice for a fee under ERISA. Comments on the March 1, 2011 (pdf) and March 2, 2011 hearings (pdf) can be submitted electronically to e-ORI@dol.gov with subject line: Public Hearing on Definition of Fiduciary, or in written form to: EBSA's Office of Regulations and Interpretations, Attn: Public Hearing on Definition of Fiduciary, Room N-5655, U.S. Department of Labor, 200 Constitution Ave. NW, Washington, DC, 20210. All comments on the information presented at the hearings must be submitted on or before April 12, 2011.

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By Ilyse Schuman and Barry Hartstein

The Equal Employment Opportunity Commission (EEOC) has released its long-awaited final rule (pdf) implementing the equal employment provisions of the Americans with Disabilities Act Amendments Act (ADAAA). 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. As discussed in the final rule, the ADAAA retains the basic definition of disability contained in the ADA, which considers an individual disabled if he or she (a) has an impairment that substantially limits one or more major life activities; (b) has a record of such an impairment; or (c) is regarded as having such an impairment. The ADAAA, however, expands the interpretation of these elements making it “much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability.’” To that end, the final rule revises the prior ADA regulations, and includes new interpretive guidance as an appendix to the rule.

These regulations, which take effect 60 days after their publication in the March 25, 2011 edition of the Federal Register, apply to all private and state and local government employers with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees.

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In order to gather information from small businesses on the possible effects of the agency’s proposal to restore a column to the OSHA Form 300 Injury and Illness Log that would require employers to record work-related musculoskeletal disorders (MSD), the Occupational Safety and Health Administration has announced that it will hold a series of teleconferences to discuss the issue. The proposal, which OSHA temporarily withdrew in January, would revise Form 300 to include a column for employers to check if a case they already are required to record involves a MSD. In addition, the proposal would require employers to record these MSD totals on the OSHA Form 300A Annual Summary. The stated purpose of the three teleconferences is to allow small businesses to provide information about their experiences in recording work-related MSDs and how they believe the proposed rule would impact them.

The teleconferences will be held on Monday, April 11, 2011 at 1:30 p.m. EST, and on Tuesday, April 12, 2011 at 9 a.m. and 1:30 p.m. EST. Each teleconference is expected to last about 2 to 3 hours. Those interested in participating must contact Regina Powers at powers.regina@dol.gov by April 4, and indicate the teleconference in which they wish to participate. The Small Business Administration’s Office of Advocacy and OSHA will chose the participants from the pool of applicants, although members of the public may listen in on the meetings in person at OSHA's Washington, D.C. office at 200 Constitution Ave., NW, Washington D.C. 20210, Room N-3437 C & D.

The selected participants will be given background information and a list of issues for discussion in advance of the teleconference. More information on the teleconferences can be found here.

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By Martha Keon

The FLSA provides that an employer may not:

"discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee."

The meaning of the phrase “filed any complaint” has been vigorously disputed in the federal courts, resulting in circuit splits on two issues:

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The DOL’s Employee Benefits Security Administration (EBSA) has announced that it will conduct a two-part webcast for employers on their fiduciary responsibilities when operating a retirement plan. The program – Getting It Right - Know Your Fiduciary Responsibilities  – will be held on March 23 and 24, 2011, and will cover topics such as understanding retirement plans and the employer’s responsibilities in administering them; carefully selecting and monitoring service providers; making contributions on time; avoiding prohibited transactions; and making appropriate disclosures to plan participants and timely filing annual reports to the government. The March 23 session will focus on basic fiduciary responsibilities and prohibited transactions and exemptions under the Employee Retirement Income Security Act (ERISA). The following day, the EBSA will present information on ERISA’s reporting and disclosure provisions and the DOL’s voluntary correction program.

The EBSA is in the process of drafting a final rule on proposed changes to the definition of “fiduciary” that would result in a broader range of individuals who provide investment advice to be deemed a fiduciary under ERISA.

Registration for the webinars is required, and can be made here.

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UPDATED: August 8, 2011

A month after the Equal Employment Opportunity Commission (EEOC) conducted a public hearing on unemployment discrimination, Rep. Henry Johnson (D-GA) has introduced a measure that would make this practice unlawful. The Fair Employment Act of 2011 (H.R. 1113) would amend Title VII of the Civil Right Act to add “unemployment status” to the list of protected classes. “Unemployment status” is defined in the legislation as “being unemployed, having actively looked for employment during the then most recent 4-week period, and currently being available for employment.”

In a statement, Rep. Johnson said: “[e]mployer discrimination against unemployed job applicants is fundamentally wrong,” adding, “With unemployment at about 9 percent and with nearly 14 million Americans out of work, this discrimination will only prolong the crisis.”

This bill, which has 15 co-sponsors, has been referred to the House Committee on Education and the Workforce, although it faces dim prospects for advancing. 

UPDATE:  On July 12, 2011, Reps. Rosa DeLauro (D-CT) and Henry Johnson (D-GA) introduced similar legislation that would make it unlawful for an employer or employment agency to discriminate against individuals based on their unemployment status or history of unemployment. The Fair Employment Opportunity Act of 2011 (H.R. 2501) would, among other things, prevent employers and employment agencies from refusing to consider or offer a job to an unemployed individual; prohibit the publication in any medium of an advertisement or announcement for a job that includes language indicating the unemployed need not apply; and entitle those discriminated against to bring a civil action against the employer or employment agency for actual, compensatory and punitive damages. This bill has been referred to the House Committee on Education and the Workforce.  Sen. Richard Blumenthal (D-CT) introduced a companion bill (S. 1471) in the Senate on August 2, 2011.

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The Department of Labor has launched an online tool to enable the public to provide input on ways to improve the DOL’s regulatory review process in general and existing regulations in particular. This web initiative is part of the DOL’s efforts to comply with President Obama’s recent Executive Order directing federal agencies to develop plans to review existing significant regulations to determine whether they could be made more effective and/or less burdensome on employers.

Commenters are asked to identify the particular regulation or reporting requirement at issue and provide legal citation(s) where available. The DOL also asks that commenters provide, “in as much detail as possible, an explanation of why a regulation or reporting requirement should be modified, streamlined, expanded, or repealed, as well as specific suggestions of ways the Department can better achieve its regulatory objectives.” All comments must be received by the end of the month. More information on this process can be found here.

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On March 10, legislation that would extend COBRA continuing health coverage to many same-sex spouses and domestic partners was reintroduced in the House and Senate. The Equal Access to COBRA Act (H.R. 1028, S. 563) would change federal law to allow same-sex spouses or domestic partners and their dependents the same access to COBRA coverage as enjoyed by other individuals who are covered by an employer’s health plan in the event the covered employee losses his or her job. The measure, which was reintroduced by Sen. Barbara Boxer (D-CA) and Rep. Anthony Weiner (D-NY), would apply to domestic partners as they are defined by the employer’s benefits plan. Under current law, COBRA continuation coverage does not apply to domestic partners or same-sex spouses, even if the employee who was let go worked at a company that offered health coverage to domestic partners. The provisions of this legislation would apply only to companies that already offer health coverage to domestic partners and their children. According to a statement issued by Sen. Boxer’s office, more than half of Fortune 500 companies cover domestic partners in their health plans.

If signed into law, this bill would apply to plan years beginning 180 days after the enactment date. For collectively bargained health plans, the amendments made by this bill would apply after the plan terminates, or three years after enactment, whichever date is earlier.

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On Tuesday the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting  to discuss the employment of individuals with mental disabilities. According to EEOC Chair Jacqueline A. Berrien, the hearing “provided an important opportunity to dispel myths and learn about effective ways to dismantle barriers to employment for people with disabilities.” The meeting was divided into three panels to address the employment rates of people with mental disabilities; the requirements of the Americans with Disabilities Ac t (ADA) and how the Act applies to individuals with mental disabilities; and litigation to enforce the rights of people with mental disabilities.

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In anticipation of developing regulations to implement the new automatic enrollment provisions of the Fair Labor Standards Act (FLSA) established by the Affordable Care Act, the Department of Labor’s Employee Benefits Security Administration (EBSA) plans to hold a public forum to solicit views and share information on the new requirement. The new provision included in the health care reform law adds Section 18A to the FLSA, which requires employers with more than 200 full-time employees to automatically enroll new hires – subject to any applicable waiting periods – in one of the employer’s health benefit plans, and to continue the enrollment of current employees in the plan. The new section also requires employers to provide adequate notice and opportunity for an employee to opt out of such coverage. Affected employers are not required to abide by the new enrollment mandate until final rules on this obligation are issued and effective.  Continue reading this entry at Littler's Healthcare Employment Counsel.

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Rep. Phil Roe (R-TN) has reintroduced the Secret Ballot Protection Act (SBPA) (H.R. 972) in the House of Representatives, legislation that would amend the National Labor Relations Act to guarantee the right to secret ballot union representation elections. In January, Sen. Jim DeMint (R-SC) introduced a companion bill in the Senate. Both bills would make it an unfair labor practice for an employer to recognize a union that has not been selected via secret ballot and 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.

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Rep. Lois Capps (D-CA) and Rep. Steven LaTourette (R-OH) have reintroduced a bill in the House of Representatives that would require Medicare-participating hospitals to establish staffing plans for nursing services, provide certain whistleblower protections for employees and patients, and subject employers in violation of the bill to monetary penalties. Companion legislation to the bipartisan Registered Nurse Safe Staffing Act of 2011 (H.R. 876) was introduced in the Senate earlier this year.  Continue reading this entry at Littler’s Healthcare Employment Counsel.

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The Equal Employment Opportunity Commission (EEOC) is soliciting public input as it plans to review its significant regulations. The anticipated review is in response to a recent executive order (Executive Order 13563) (pdf) that directs federal agencies to consider the burden of regulation on business and job creation. Specifically, the Executive Order calls upon agencies to develop “a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether such regulations should be modified, streamlined, expanded or repealed to make the agency's regulatory program more effective and/or less burdensome in achieving its regulatory objectives.”

To that end, the EEOC asks for suggestions on how it should design its plan for reviewing its significant regulations. Such input might include the factors it should use to select rules for review, or whether the review should focus on particular types of regulations. With respect to specific regulations, the EEOC is interested in what should be included in the agency’s initial list of regulations for review over the next two years. The EEOC is interested in why the particular regulation should be modified, streamlined, expanded, or repealed; any available data on the costs and benefits of the regulation; and how the EEOC can better achieve the regulation’s objective. The request for public comments represents an important opportunity for employers to communicate their comments, concerns and suggestions for improving the EEOC’s regulatory program. Comments must be submitted electronically to Public.Comments.RegulatoryReview@eeoc.gov on or before March 22, 2011. A complete list of the agency’s regulations can be found here.

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A bill that would repeal the provisions in the National Labor Relations Act (NLRA) and the Railway Labor Act (RLA) that permit employers and unions to draft agreements requiring union membership and payment of union dues or fees a condition of employment was reintroduced in the Senate on Tuesday. Sen. Jim DeMint (R-SC) introduced the National Right-to-Work Act (S. 504), which was co-sponsored by seven others. Sen. DeMint last introduced this measure during the 110th Congress, with Rep. Steve King (R-IA) sponsoring a similar bill in the House in 2009.  This bill has been introduced a dozen times in the House and Senate since 2001, but each time it has failed to sufficiently advance. Currently, twenty-two states already have right-to-work laws in place. A number of the remaining states have similar laws pending in their legislatures.

In a statement, Sen. DeMint said:

No American should be forced to join a union and pay dues to get a job in this country. Many Americans are already struggling just to put food on the table, and they shouldn’t have to fear losing their jobs or face discrimination if they don’t want to join a union. Forced-unionism shields unions from member accountability and has a detrimental effect on the economy. In states where companies are forced to hire only union workers, businesses have struggled to compete while they deal with counterproductive work rules.

This measure has been referred to the Senate Committee on Health, Education, Labor and Pensions. Given the current composition of the Senate, however, this bill will likely share the fate of its predecessors.

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The Equal Employment Opportunity Commission (EEOC) has announced that it plans to hold a public meeting to discuss the employment of people with mental disabilities. The session will be held next Tuesday, March 15, 2011, at the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE., Washington, DC 20507.

This meeting follows a recent Senate committee hearing held to address how to improve employment opportunities for those with intellectual disabilities. In his opening statement to the Senate Committee on Health, Education, Labor and Pensions (HELP), Committee Chairman Tom Harkin (D-IA) said:

The important work we have done since the landmark passage 35 years ago of the Individuals with Disabilities Education Act, and 20 years ago of the Americans with Disabilities Act, dramatically improved the lives of persons with disabilities. We have addressed education and we have addressed access. Now we must address employment and economic well being.

During the hearing, Sharon Lewis, Commissioner, Administration on Developmental Disabilities, U.S. Department of Health and Human Services, referenced the January 2011 Current Population Survey (CPS) which found that the proportion of the population of people with disabilities who are employed is estimated to be 17%, compared to 63% for people without disabilities. A complete list of the panelists participating in the hearing and links to their testimony can be found here.

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United States Citizenship and Immigration Services (USCIS) has announced a proposed rule designed to decrease administrative and employer costs associated with the H-1B petition process. Under the proposed rule, employers would electronically register with USCIS during an enrollment period of at least two weeks in March of each year, prior to the April 1 filing period start date. Participating employers would file a single registration for each prospective H-1B worker they seek to hire (i.e., multiple prospective H-1B workers could not be listed on a single registration). Unlike current requirements, procuring a Labor Condition Application (LCA) prior to filing a petition would not be required.  Continue reading this entry at Littler's Global Immigration Counsel.

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On Thursday, the House of Representatives approved by a 314-112 margin the Small Business Paperwork Mandate Elimination Act of 2011 (H.R. 4), yet another measure that seeks to repeal the expansion of the 1099 reporting requirement for payments to corporations for goods or services of $600 or more, which was included in the health care reform law. The Senate had already approved a different version of the 1099 reporting repeal as part of the FAA reauthorization bill it voted in favor of last month.

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In an opinion that potentially expands an employer’s liability in discrimination cases, the Supreme Court has found that an employer can be found liable under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for the discriminatory intent of company officials who influenced – but did not make – the ultimate adverse employment decision. In Staub v. Proctor Hospital, (pdf) the Court held that an employer is liable under USERRA “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action,” and that act “is a proximate cause of the ultimate employment action.” Appellate courts have applied varying standards under this “cat’s paw” theory of imputed liability, which holds an employer accountable for the unlawful motives and actions of an official who dupes or influences an unbiased decision maker into acting unlawfully.

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