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

The DOL’s Employee Benefits Security Administration (EBSA) has issued a notice (pdf) of its proposal to extend the applicability date of two fee disclosure rules in order to ensure that plan sponsors have enough time to comply with the rule requirements. Specifically, the EBSA is proposing to push back the applicability dates of the fiduciary-level fee disclosure rule issued on July 16, 2010 and the transition rule included in the participant-level fee disclosure regulation  issued on October 20, 2010.

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By George O'Brien

In conjunction with National Nurses Week, Sen. Barbara Boxer (D-CA) reintroduced legislation on May 12 that would establish minimum nurse-to-patient ratios, require hospitals to implement nurse-to-patient staffing plans, and provide whistleblower protection for patients and hospital employees. The National Nursing Shortage Reform and Patient Advocacy Act (S. 992) is the latest in a number of bills introduced in recent years that are designed to provide nurses – and their unions – with greater influence on nurse staffing levels.  Continue reading this entry at Littler's Healthcare Employment Counsel.

Photo credit: AlexRaths

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By Neil Alexander and Michael Lehet

The Supreme Court has held that an Arizona law that imposes sanctions on employers that hire unauthorized workers and requires the mandatory use of E-Verify is not preempted by federal law, and therefore valid. The Arizona law at issue – the Legal Arizona Workers Act – provides for the suspension or revocation of an employer’s business license in that state if that employer knowingly or intentionally hires an unauthorized worker. The statute also mandates the use of the E-Verify electronic verification system to check on an employee’s work eligibility. The Court’s decision in Chamber Of Commerce v. Whiting (pdf) upholding this statute opens the door for other states to enact laws that similarly impose stricter penalties on employers for immigration law violations.

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Rep. Sue Wilkins Myrick (R-NC) has reintroduced legislation that would amend the Immigration and Nationality Act to substantially increase employer penalties for violations. The 10k Run for the Border Act (H.R. 1698) would increase the fines for knowingly hiring or recruiting an undocumented worker, or continuing to employ an illegal alien when the employee’s legal status changes or becomes known.

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By Amy E. Mendenhall

The Securities and Exchange Commission (SEC) has issued its final rule (pdf) implementing the securities whistleblower incentives and protection program contained in the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank” or “Financial Reform” Act). The Dodd Frank Act, signed into law in July of 2010, created sweeping new federal whistleblower protections for employees. Among other things, the Dodd-Frank Act created an incentive program to encourage individuals to report Securities Exchange Act of 1934 (“Exchange Act”) violations and prohibits retaliation against those who blow the whistle on securities-related violations.

Section 922 of the Act provides monetary rewards to those who voluntarily contribute original information that leads the SEC to recover monetary sanctions of $1,000,000 or more in criminal and civil proceedings in federal court or through administrative action. Whistleblowers may be eligible for amounts between 10% and 30% of the monetary sanctions that are collected, based on the original information provided by the whistleblower.

Final regulations adopted on Wednesday by the SEC clarify and expand upon several aspects of both the whistleblower “bounty” provision and anti-retaliation provisions. Perhaps the most significant and highly anticipated aspect of the new rules is their treatment of internal complaints. When the SEC issued its proposed rule in September 2010, many in the business community expressed concern that the incentive program encouraged employees to circumvent internal compliance and reporting procedures. Although the SEC did not issue a rule requiring that employees first report violations through their company’s internal channels in order to qualify for the award, it did attempt to address these concerns by creating incentives for employees to do so.

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A bill that would significantly restrict the ability for employers to arbitrate employment disputes was reintroduced in the House and Senate last week. The Arbitration Fairness Act of 2011 (H.R. 1873, S. 987) – introduced by Rep. Henry “Hank” Johnson (D-GA) and Sen. Al Franken (D-MN) – would amend the Federal Arbitration Act (FAA) to invalidate all predispute arbitration agreements that require the arbitration of any employment or consumer dispute, or conflict arising under any statute intended to protect civil rights. This Act would not apply to arbitration provisions contained in collective bargaining agreements.

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A bill that would require employers to provide paid sick leave to employees was reintroduced in both the House and Senate on May 12, 2011 by Rep. Rosa DeLauro (D-CT) and Sen. Tom Harkin (D-IA). The Healthy Families Act (H.R. 1876, S. 984) would allow employees to earn one hour of paid sick time for every 30 hours worked, up to a maximum of 56 hours (seven days) annually. Employees could take this leave to attend to their own or a family member’s illness, or use the paid time off for preventative care such as medical appointments. In addition, the bill provides leave for employees who are the victims of domestic violence, stalking or sexual assault. Employers with 15 or more employees would be covered by the law.

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By Susan Hoffman

The Supreme Court has issued a decision in CIGNA Corp. v. Amara, (pdf) holding unanimously that section 502(a)(1)(B) of the Employee Retirement Income Security Act (the section allowing a participant to sue for benefits under an ERISA plan) did not permit the district court to rewrite the terms of the benefit plan to reflect employee expectations arising from a summary plan description (SPD) because the SPD is not the “plan.” The Court also reasoned that because the plan can be amended only by the employer acting as settlor, and the SPD must be written and distributed by the plan administrator, it would be anomalous for the plan administrator to be able to modify the terms of the plan by erroneously describing its terms, even if – as in the instant case – the employer is also the plan administrator. Six of the Justices found, however, that another section (502(a)(3)) of ERISA might allow the lower court to reform the company’s pension plan provisions or to provide the requested benefits in the form of damages, and sent the case back for reconsideration. The two concurring Justices agreed with the remand but would not have expanded on the potential recovery that might be available under section 502(a)(3).

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The Occupational Safety and Health Administration has announced (pdf) that it will reopen the public record and solicit limited comments on the proposed rule that would restore a column to the Form 300 Injury and Illness Log that employers would have to check if an incident they already have recorded under existing rules involves a musculoskeletal disorder (MSD) injury. The proposed rule, which was issued in January 2010, would also require employers to record these MSD totals on the OSHA Form 300A Annual Summary.

After temporarily withdrawing this controversial proposal in January of this year, the agency announced its plans to conduct a series of telephone conferences 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. A summary of the comments made at the teleconferences, held on April 11 & 12, can be found here.

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By Jaime L. Wasserstrom

On Thursday May 12, the Federal Aviation Administration (FAA) released a 671-page supplemental Notice of Proposed Rulemaking (“SNPRM”), (pdf) which proposes enhanced qualification, training, and evaluation requirements for all air carrier crewmembers and dispatchers, in response to congressional and public concerns raised following the 2009 crash of regional carrier Colgan Air in Buffalo, NY. The SNPRM – which was mandated by Congress in the Airline Safety and Federal Aviation Administration Extension Act of 2010 – revises training rule proposals first issued in January 2009 and opens a 60-day public comment period, which closes on July 19, 2011.

The FAA has highlighted that “[t]his proposal will make U.S. pilots and other crewmembers even better-equipped to handle any emergency they may encounter.” In fact, these changes would provide the most significant changes to air carrier training in approximately 20 years. Most significantly, the proposal would require “real world” training, requiring all members of a flight crew to demonstrate, not just learn, critical skills. These critical skills include responding to flying scenarios based on actual events, and, for pilots, participating in ground and flight training to learn how to recognize and recover from stalls and aircraft upsets. Like the original proposal, the supplemental notice would require the use of pilot flight simulation training devices.

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By David Goldstein

In an obscure notice published in the May 12, 2011 Federal Register, the Office of Federal Contract Compliance Programs (OFCCP) announced an intention to alter the forms it uses to collect information in connection with compliance reviews. These changes, if implemented, will substantially impact federal contractors in their record retention practices and in their responses to audit scheduling letters.

OFCCP commences its audits by first sending a “Scheduling Letter” to the selected government contractor advising it of the audit and requiring the contractor to provide certain information. The Scheduling Letter is always accompanied by a standard form known as the “Itemized Listing,” which sets forth the information and documentation that the contractor is required to produce.

The May 12 Federal Register Notice indicates that OFCCP intends to change the text of the Scheduling Letter and alter the Itemized Listing. In a supporting statement prepared by OFCCP in connection with these proposed changes – but not published in the Federal Register – OFCCP states that its revisions to the body of the Scheduling Letter are simply made for clarity. However, the agency acknowledges that its proposed changes to the itemized listing are substantive and that some of the proposed changes would be very significant. 

Continue reading at Littler's ASAP: OFCCP Looks to Overhaul Audit Procedures Through Revisions to Scheduling Letter and Itemized Listing.

Photo credit: shironosov

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The Office of Federal Contract Compliance Programs (OFCCP) has announced that it will hold an online information session to discuss its new Active Case Enforcement (ACE) protocol, the process by which the agency conducts supply and service (S&S) compliance evaluations. In December 2010, the OFCCP issued a directive discontinuing the former Active Case Management (ACM) process that had been in place since 2003. Two months later, the agency issued a second directive outlining the new ACE procedures for conducting S&S compliance evaluations, which includes full desk audits, increased onsite evaluations, focused evaluations, and full reviews.

According to the webinar invitation, OFCCP representatives will explain what contractors can expect when scheduled for a S&S compliance evaluation using ACE procedures, including a discussion of key terms and how ACE procedures differ from the discontinued ACM process.

Attorneys in Littler’s OFCCP Practice Group have observed that under the new ACE procedures, contractors are receiving lengthy information requests much earlier in the audit process, in some cases even before the initial desk audit submission has been received. These requests seek documentation and evidence of the contractors’ compliance with all of the regulations that OFCCP enforces, including in particular the regulations dealing with outreach to individuals with disabilities and veterans, and a few questions pertaining to compliance with OFCCP’s regulations addressing sex discrimination (Part 60-20), and religion/national origin discrimination (Part 60-50).

The webinar will be conducted on Tuesday, May 17, 2011 from 2:00 - 3:30 PM EDT. Registration for this information session is required, and can be made here.

Photo credit: doram

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By Josh Kirkpatrick

On May 9, 2011, the U.S. Department of Labor announced the launch of its first smartphone application, an electronic timesheet employees can use to track their hours of work, including breaks. According to a DOL press release, the information tracked through this application “could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” The app, currently available in English and Spanish and only for iPhone, iPad and iPod Touch devices, allows users to input their hourly rate of pay and calculates the amount of wages due to the worker. Additionally, through the app, users can add comments related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment. A glossary, limited information regarding wage and hour laws, and contact information for the DOL are accessible through the app. The agency stated it will pursue the development of updates that allow employees to track their tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest, among other pay information.  Continue reading this entry at Littler's Wage & Hour Counsel. 

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The Occupational Safety and Health Administration (OSHA) has announced that on May 13, 2011, it will hold an expert forum to identify the agency’s regulatory options for protecting workers from combustible dust hazards. According to a press release, matters to be discussed include “identifying regulatory options that can minimize the costs to small- and medium-sized businesses of reducing or preventing combustible dust hazards, while protecting workers from these hazards.” Members of the forum will include representatives from various industries, academia, research groups, insurance-underwriter organizations, labor, and the government.

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