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) has issued a new Directive updating the application and approval procedures for Functional Affirmative Action Program (FAAP) Agreements. OFCCP regulations allow federal supply and service contractors to develop affirmative action programs (AAPs) that are based on their business function or unit instead of establishments based on physical location. In order to do so, contractors must get prior OFCCP approval. In essence, the OFCCP Director must determine that “the contractor’s overall operational structure, compliance history, and proposed functional AAPs meet the criteria” set forth in the new Directive, effective June 14, 2011.

• Email This
• Print
• Trackbacks
• Share Link

Last week Rep. Jackie Speier (D-CA) reintroduced the Equal Access to COBRA Act of 2011 (H.R. 2310), legislation cosponsored by 47 others that would extend COBRA continuation health coverage to covered employees’ same-sex spouses or domestic partners and their dependent children. Under existing law, up to 36 months of continuing health care coverage under COBRA is available to employees, their spouses and dependent children after the employees’ job loss. The Equal Access to COBRA Act would amend the Employee Retirement Income Security Act (ERISA), the Internal Revenue Code, and the Public Health Service Act to extend these entitlements to all individuals who are covered by an employer’s health plan. Generally, this bill would apply to businesses that already offer health coverage to domestic partners and their children. Identical legislation (H.R. 1028, S. 563) was introduced earlier this year in the House by former New York Rep. Anthony Weiner and in the Senate by Barbara Boxer (D-CA).

In a statement, Rep. Speier said: “The recession didn’t discriminate on the basis of sexual orientation and gender identity and neither should our safety net policy,” adding: “This legislation would ensure that eligible LGBT employees and their families have the same access to health care benefits as every other American.”

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.

Photo credit: MBPHOTO, INC.

• Email This
• Print
• Trackbacks
• Share Link

The Department of Defense (DoD) will issue a final rule (pdf) that extends the existing restrictions on a contractor’s use of mandatory arbitration agreements in certain instances. Currently, a provision in the DoD and Full-Year Continuing Appropriations Act 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.” This restriction does not apply to a contractor’s or subcontractor’s agreement with employees or independent contractors that cannot be enforced in the U.S., nor does it apply to the acquisition of commercial items, including commercially available off-the-shelf items. 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.

The final rule extends the arbitration restrictions to large contracts awarded with funds provided under the DoD appropriations act for the year 2011 and subsequent DoD appropriations acts. A final rule implementing these restrictions for funds awarded by the 2010 DoD Appropriations Act was issued in December 2010. The final rule states that: “Since DoD anticipates that this will be an ongoing requirement, this rule applies to use of all subsequent fiscal year funds appropriated or otherwise made available under subsequent DoD appropriations acts.” If the restriction is removed at a future date, DoD notes that it will amend the Defense Federal Acquisition Regulations accordingly.

• Email This
• Print
• Trackbacks
• Share Link

Members of both the House and Senate have introduced legislation that would extend the federal minimum wage and overtime protections of the Fair Labor Standards Act (FLSA) to most home care workers, improve federal and state data collection and oversight with respect to the direct care workforce, and create a grant program to help states recruit and train direct care workers. Among other things, the Direct Care Job Quality Improvement Act (H.R. 2341, S. 1273) would limit the “companionship services” FLSA exemption to those who work fewer than 5 hours per week or are employed in this capacity for fewer than 12 weeks per calendar year.

• Email This
• Print
• Trackbacks
• Share Link

On June 21, 2011, the Senate Armed Services Committee approved (pdf) a draft of the National Defense Authorization Act for Fiscal Year 2012 (pdf) that would end efforts by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to extend federal affirmative action obligations to hospitals that participate in or accept reimbursement through the TRICARE program.

TRICARE is the Department of Defense’s health care program for active duty and retired military and their families. OFCCP has been taking the position that providers participating in TRICARE are government subcontractors subject to various affirmative action and equal employment opportunity compliance requirements enforced by OFCCP. The Senate Bill would reject OFCCP’s position by explicitly excluding TRICARE institutional, professional, and pharmacy network providers from being considered subcontractors for the purposes of Federal Acquisition Regulation (FAR) or any other law, in order to maintain adequate TRICARE provider networks.  Continue reading this entry at Littler's Healthcare Employment Counsel.

• Email This
• Print
• Trackbacks
• Share Link

By E. Ashley Sims

Many in the employment law community expressed surprise at the Equal Employment Opportunity Commission’s topic for the June 22, 2011 meeting: Disparate Treatment in Hiring.  Long gone are the days of overt gender and race discrimination in hiring. Well, aren’t they?

According to the Commission, sort of. American business has come a long way, but the EEOC claimed that there is more work to do. “Forty-five years after the Civil Rights Act of 1964, [the EEOC] still receives meritorious charges on hiring discrimination,” said EEOC Chair Jacqueline Berrien. She continued, “The EEOC will continue to address this problem through enhanced education and outreach and through vigorous enforcement of the law.” Commissioner Constance Barker echoed the Chair’s sentiments, stating “discrimination is evolving” and asked the panelists to weigh in on how the Commission can combat modern hiring discrimination.

• Email This
• Print
• Trackbacks
• Share Link

The National Labor Relations Board has announced (pdf) that it will hold one or more public meetings to discuss the controversial proposed changes to the Board’s representation election process. According to the notice to be published in the June 27 edition of the Federal Register, the topics of discussion are limited to issues raised by the proposed rule and suggestions for improving the election process. These meetings are in addition to the solicitation of formal written comments as outlined in the Federal Register.  Continue reading this entry at Littler's Labor Relations Counsel. 

Photo credit: Rapid Eye Media

• Email This
• Print
• Trackbacks
• Share Link

By Jeffrey C. Kauffman

DOL estimates new interpretative standards will triple the number of LM-10 Employer Reports filed annually and predicts a twelve-fold increase in LM-20 Reports required from firms engaged in “persuader activities” as newly defined.

If the DOL proposals take effect, employers (and their advisors, including legal counsel) will have to treat activities that have not been reportable for the past 50 years as now subject to reporting requirements. The ambiguity of the new regulatory standards, coupled with potential criminal sanctions for willful non-reporting, potentially could result in substantial interference with an employer’s attorney-client relationship, disrupt an employer’s ability to obtain legal advice when confronted by union campaigns, and have a chilling effect on employer free speech during such campaigns.  Continue reading this entry at Littler's Labor Relations Counsel. 

Photo credit: style-photographs

• Email This
• Print
• Trackbacks
• Share Link

The Occupational Safety and Health Administration is proposing to amend certain recordkeeping and reporting requirements by updating the list of low-risk industries that are partially exempt from these requirements, and mandating that employers report all instances of work-related fatalities and in-patient hospitalizations to the agency within eight hours, and amputations within 24 hours.

Appendix A to Subpart B of OSHA’s Injury and Illness Recording and Reporting regulation lists the industries that are partially exempt from maintaining records of occupational injuries and illnesses. Currently, these exempt industries are considered low-risk based on the Standard Industrial Classification (SIC) system. These lower hazard industries are those industries with an average Days Away, Restricted, or Transferred (DART) rate at or below 75 percent of the national average DART rate. As explained in the proposed rule, in 1997 the North American Industry Classification System (NAICS) was introduced to classify establishments by industry. OSHA began converting the SIC codes to NAICS codes in 2001. The proposed rule would update the list of low-risk industries in Appendix A by replacing the current list with one based on the updated NAICS data, which uses DART rates based on recent information compiled by the Bureau of Labor Statistics (BLS).

• Email This
• Print
• Trackbacks
• Share Link

In a decision favorable to employers, the U.S. Supreme Court has held in Wal-Mart Stores, Inc. v. Dukes (pdf) that the lower court improperly certified a massive class action lawsuit. Specifically, the Court found that the plaintiffs failed to prove that their allegations of discrimination were common to all purported class members, and therefore resolution of the matter though a class action lawsuit would be inappropriate. Similarly, the Court reasoned that their claims for monetary damages were also improperly certified for class action consideration, as such remedies are necessarily determined – and defended against – on an individualized basis.

In this case, a purported class of approximately 1.5 million current and former female employees alleged that the discretion over pay and promotion decisions exercised by their company’s local supervisors violated Title VII of the Civil Rights Act. The group did not allege that the company had any express discriminatory policy, but claimed that the local managers’ discretion resulted in more favorable treatment of men, and that this alleged discrimination was applicable to all female employees. The group sought injunction and declaratory relief, as well as backpay.

• Email This
• Print
• Trackbacks
• Share Link

By Stefan Marculewicz

In a move decried by the business community and even National Labor Relations Board Member Brian Hayes, the NLRB has issued a proposed rule (pdf) that would dramatically change pre- and post-representation election case procedures. It is predicted that the results of this proposed rulemaking will substantially expedite the election process and thereby deny workers the ability to fully exercise their right to make an informed and well-reasoned decision whether to join or not to join a labor union. In the words of Member Hayes in his strongly-worded dissent, (pdf) the proposed rulemaking “substantially limit[s] the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct.” Summing up his criticisms of the proposed changes, Hayes claims:

Today, my colleagues undertake an expedited rulemaking process in order to implement an expedited representation election process. Neither process is appropriate or necessary. Both processes, however, share a common purpose: to stifle full debate on matters that demand it, in furtherance of a belief that employers should have little or no involvement in the resolution of questions concerning representation. 

Continue reading this entry at Littler's Labor Relations Counsel. 

Photo credit:   ericsphotography

• Email This
• Print
• Trackbacks
• Share Link

Earlier this week Rep. Steve King (R-IA) reintroduced legislation that would amend the National Labor Relations Act (NLRA) to allow employers to refuse to hire undercover union organizers, commonly known as “salts.” Specifically, the Truth in Employment Act of 2011 (H.R. 2153) would add the following provision to Section 8(a) of the NLRA: “Nothing in this subsection shall be construed as requiring an employer to employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.”

• Email This
• Print
• Trackbacks
• Share Link

The same day a mandatory E-Verify bill was introduced in the House of Representatives, Sen. Charles Grassley (R-IA) introduced the Accountability Through Electronic Verification Act (S. 1196) in the Senate. Like the House employment immigration bill, the Senate version would require all employers to use the E-Verify electronic employment verification system, increase employer penalties for violations of immigration law, and eliminate the current Form I-9 process. The Senate bill, however, would also require a shorter implementation timeframe for using E-Verify and expand its use, among other differences. Generally, this bill aims to accomplish the following:

• Email This
• Print
• Trackbacks
• Share Link

Sen. Jeff Sessions (R-AL) has reintroduced legislation designed to encourage parties to use arbitration as a means of dispute resolution. The Fair Arbitration Act (S. 1186) would amend the Federal Arbitration Act by including a set of due process rights for participants, imposing time limits for initiating and resolving a dispute, and establishing certain requirements for arbitration clauses in contracts. Among other changes, the bill seeks to accomplish the following:

• Stipulate that arbitration clauses in contracts include, in bold, large print, capital letters, a heading announcing the arbitration agreement. To be enforceable, the agreement must state whether it is binding or optional, provide contact information where a party can get more information about the costs and fees associated with arbitration, and state that the individual retains the right to sue in small claims court for claims not exceeding $50,000.

• Email This
• Print
• Trackbacks
• Share Link

Like another recently-introduced immigration bill, the Legal Workforce Act (H.R. 2164) (pdf) would require all employers to use the E-Verify electronic employment verification system within a phased-in period following enactment. This new measure introduced by House Judiciary Chairman Lamar Smith (R-TX) is also the subject of a Judiciary Committee hearing scheduled for June 15.

Among other things, the new bill would do the following:

• Mandate that all employers use E-Verify for new hires within two years of the bill’s enactment. Smaller employers would be given more time to comply with the law. Specifically, employers with 10,000 or more employees would be required to use E-Verify within six months of the bill’s enactment; those employing 500-9,999 workers would have to comply within 12 months; businesses with 20-499 employees would have 18 months; all others must begin using E-Verify within two years.

• Email This
• Print
• Trackbacks
• Share Link

The Equal Employment Opportunity Commission (EEOC) has announced that it will hold a public meeting to discuss “disparate treatment in 21st Century hiring decisions.” The meeting is scheduled to take place on Wednesday, June 22, 2011 at 9:30 a.m. ET, and will be held in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507. Since seating is limited, observers are advised to arrive a half hour beforehand. At this time, a meeting agenda and list of panelists are not yet available, although copies of the speakers’ testimony are usually posted on the EEOC’s website following agency meetings.

• Email This
• Print
• Trackbacks
• Share Link

A bill that would amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, significantly enhancing employer civil and criminal penalties for violations, and providing rights to victims and their family members during the investigation process was reintroduced in the Senate on June 9, 2011. When reintroducing the Protecting America’s Workers Act (PAWA) (S. 1166) on the Senate floor, Sen. Patty Murray (D-WA) said that among other changes to the OSH Act, her bill would “make sure that a whistleblower’s right to protection from retaliation can’t be waived through collective bargaining agreements,” and that employees would “have the option to appeal to the federal courts if they feel they are being mistreated for telling the truth about dangerous practices.” Murray also stated that PAWA would improve reporting, inspection, and enforcement of workplace health and safety violations, and require employers to begin the abatement process for serious, willful, or repeated violations upon receipt of the citation, even if they contest the issuance of the citations in the first instance.

PAWA has been introduced a number of times in various forms within the past few years. On January 5 of this year, PAWA was reintroduced in the House of Representatives by Rep. Lynn Woolsey (D-CA) as H.R. 190. Later that month, Senators Jay Rockefeller (D-WV), Tom Harkin (D-IA), Patty Murray (D-WA) and Joe Manchin III (D-WV) reintroduced the more expansive the Robert C. Byrd Mine and Workplace Safety and Health Act (S. 153). A companion bill (H.R. 1579) was introduced in the House in April. None of these measures have advanced, nor are they expected to this year. Therefore, while the PAWA, if enacted, would make significant changes to the OSH Act, its likelihood of passage this session is remote.

Photo credit: MBPHOTO, INC.

• Email This
• Print
• Trackbacks
• Share Link

By Peter Petesch

In a move consistent with organized labor’s push for an accelerated collective bargaining process for airlines and railroads, the National Mediation Board (NMB) announced the implementation of its expedited mediation project. (pdf) The new program is designed ostensibly to move the mediation process – whose purpose is to resolve collective bargaining disputes in the airline and railroad industries – along. In a press release, Larry Gibbons, NMB Director for Mediation, said the program was in response to a report (pdf) issued in 2010 by the Dunlop II Committee, a joint labor-management committee formed to examine the internal functions, policies and procedures of the NMB and make recommendations for procedural or policy changes. Gibbons explained that the report “...recommended, among other things, that case management strategies be developed to help address [mediation] disputes in a timely and methodical manner.” From this general recommendation in Dunlop II, the NMB developed protocols for expedited mediation. The initiative stops far short of recommendations principally from unions for explicit time limits on mediation. Yet, the initiative works to dispel the perception held by some that mediation is an endless process. Continue reading this entry at Littler’s Labor Relations Counsel.
 

• Email This
• Print
• Trackbacks
• Share Link

On June 3, 2011 Rep. Joe Baca (D-CA) introduced legislation that would mandate certain disclosures to and options for employees who receive their pay electronically through payroll cards. The Electronic Paycard Protection Act (H.R. 2125) would add a section to the Fair Labor Standards Act (FLSA) that outlines the new conditions imposed on an employer that uses electronic payroll cards, defined in the Act as “an access mechanism, including a prepaid card, code, or device, issued to an employee by an employer, or other entity by arrangement with the employer, through which an employer provides an employee access to his or her wages.”

• Email This
• Print
• Trackbacks
• Share Link

By Peter Petesch

How do you know the appropriate amount of leave to provide an employee as a reasonable accommodation under the Americans with Disabilities Act (ADA)?

You don’t.

The United States Equal Employment Opportunity Commission (EEOC) expects to issue guidance in late summer or early autumn on the topic of reasonable accommodations and leaves of absence under the ADA. On June 8, the EEOC held a public meeting on the subject, with additional written comments welcomed over the next 15 days. In the aftermath of two highly publicized EEOC consent decrees and an expanded number of individuals protected under the law as a result of the ADA Amendments Act (ADAAA) and its implementing regulations, employers can expect to encounter far more situations involving leave of absence as a reasonable accommodation.

• Email This
• Print
• Trackbacks
• Share Link

The Occupational Safety and Health Administration has developed on online tool to help employers assess their obligations under the agency’s injury and illness recordkeeping regulations. The OSHA Recordkeeping Advisor is presented in question and answer format and directs users to the next appropriate inquiry and/or course of action based on their responses. The stated purpose of the online tool is to help employers determine:

• Whether an injury or illness (or related event) is work-related
• Whether an event or exposure at home or on travel is work-related
• Whether an exception applies to the injury or illness
• Whether a work-related injury or illness needs to be recorded
• Which provisions of the regulations apply when recording a work-related case

The agency emphasizes that the tool is designed to help employers better understand their recordkeeping requirements, but should not be used as a substitute for OSHA’s more detailed regulations, handbooks, or letters of interpretation.

Photo credit: doram

• Email This
• Print
• Trackbacks
• Share Link

The Equal Employment Opportunity Commission (EEOC) will hold a meeting open to the public to discuss, among other topics, the use of leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). According to the meeting agenda, which is subject to change, invited panelists will discuss the EEOC’s current position and policy statements on the topic and provide advice on how to comply with the law and appropriately grant leave to employees. Question-and-answer sessions will follow each discussion. The meeting will be held on Wednesday, June 8, 2011 at 9:30 A.M. EST in the Commission Meeting Room located on the first floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507. Since seating is limited, observers are encouraged to arrive 30 minutes in advance of the meeting.

Photo credit: Alex Nikada

• Email This
• Print
• Trackbacks
• Share Link

A bill that would expand the E-Verify employment verification system and require its use by all employers was reintroduced in the House on May 26. Introduced by Rep. Health Shuler (D-NC) and cosponsored by 37 others, the bipartisan Secure America through Verification and Enforcement (SAVE) Act (H.R. 2000) would create a four-year phase-in period during which all employers would eventually be required to use E-Verify to check the employment eligibility of their potential and current hires.

Within one year of the bill’s implementation, the federal government, federal contractors, and large employers (those with more than 250 employees) would be required to use E-Verify to check an applicant’s authorization to work in the U.S. Smaller employers would be phased into the system more gradually. Companies employing between 100 and 250 employees would be required to use E-Verify within two years; those with at least 30 but few than 100 employees would have three years to comply with the program; all other employers would have to be in compliance within four years of the bill’s enactment. In addition, all employers would be required to verify the employment eligibility of their current employees within four years of the bill’s enactment.

The SAVE Act also includes measures to enhance border security, and provides for increased enforcement of existing immigration laws.

Various versions of this legislation have been introduced in the House and Senate since 2007, but all have failed to sufficiently advance.

• Email This
• Print
• Trackbacks
• Share Link

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 March 31, 2011, 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. The office is also responsible for conducting criminal investigations regarding labor union racketeering and organized crime. According to the report, the OIG’s investigative work resulted in 207 indictments, 133 convictions, and $155 million in investigative recoveries, cost-efficiencies, restitutions, fines and penalties, forfeitures, and civil monetary action.

• Email This
• Print
• Trackbacks
• Share Link

The Equal Employment Opportunity Commission (EEOC) has issued a proposal to extend its recordkeeping requirements under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) to employers covered by the employment discrimination provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA). Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. The EEOC issued final regulations implementing the employment provisions of GINA in November 2010.

The agency’s proposed rule, published in the June 2 edition of the Federal Register, seeks to amend its current Title VII and ADA recordkeeping regulations to add references to GINA. According to the EEOC, the proposal does not request the creation of additional documents nor does it impose any reporting requirements under GINA, “but merely require[s] employers to maintain the records that they do create,” although the agency reserves the right in the future to issue reporting regulations “as may be necessary to accomplish the purposes of GINA.”

Comments on this proposal are due on or before August 1, 2011, and may be submitted through the federal eRulemaking portal, or by mail to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE., Suite 6NE03F, Washington, DC 20507. Written comments of six or fewer pages may be faxed to the Executive Secretariat at (202) 663-4114.

• Email This
• Print
• Trackbacks
• Share Link