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

In an informal discussion letter, (pdf) the Equal Employment Opportunity Commission’s Office of Legal Counsel reiterates the position that an employer-provided wellness program that offers financial inducements to provide genetic information as part of a wellness program runs afoul of Title II of the Genetic Information Nondiscrimination Act (GINA). Among other restrictions, GINA limits the ability of health insurers and employers to collect genetic information, which includes family medical history. Whether and to what extent employer-provided wellness programs and health surveys that solicit information about family medical history violate GINA and other statutes and regulations is a rising concern for employers.

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Likely in response to the National Labor Relations Board’s controversial proposed rule that would provide for expedited representation election procedures, Sen. Jim DeMint (R-SC) introduced legislation this week that would establish longer timeframes and due process requirements for the election process. Specifically, the Fair Representation in Elections Act of 2011 (S. 1425) (pdf) would add the following provision to Section 9(b) of the National Labor Relations Act:

No election shall be conducted less than 40 calendar days following the filing of an election petition. The employer shall provide the Board a list of employee names and home addresses of all eligible voters within 7 days following the Board’s determination of the appropriate unit or following any agreement between the employer and the labor organization regarding the eligible voters.

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

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The House Subcommittee on Health, Employment, Labor, and Pensions conducted a hearing on Tuesday to discuss the Department of Labor’s proposed rule that would redefine who constitutes a “fiduciary” under the Employee Retirement Income Security Act (ERISA). By November 2011, the DOL’s Employee Benefits Security Administration (EBSA) plans to issue a final rule that more broadly defines who constitutes a retirement plan fiduciary for the purposes of rendering investment advice under ERISA. The proposed fiduciary rule was issued in October 2010. During a recent web chat to discuss the agency’s regulatory agenda, EBSA Assistant Secretary Phyllis Borzi said that this fiduciary rule:

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On Tuesday the Equal Employment Opportunity Commission (EEOC) held a public meeting to discuss how an individual’s arrest and conviction records impede employment, but failed to reveal whether it would alter its enforcement guidance on this topic. Currently, under the Commission’s Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, if an employer’s conviction-based screening policy causes a disparate impact, the employer must show that it considered the “nature and gravity of the offense,” the “time that has passed since the conviction and/or completion of sentence,” and the “nature of the job held or sought.” These guidelines have been in place since 1987. However, in a recent Third Circuit case, the court held an employer to a higher burden if its conviction screening policy disparately impacted protected classes. Specifically, in El v. South Eastern Pennsylvania Transportation Authority (SEPTA), the Third Circuit ruled that if an employer’s conviction-based screening policy results in such a disparate impact, the employer must produce “empirical evidence” justifying its screening policy in order to establish a “business necessity” affirmative defense under Title VII. Notably, the EEOC is currently prosecuting a disparate impact lawsuit against at least one employer based on its conviction-based screening policy, has initiated “systemic discrimination” investigations against other employers, and has been holding meetings on this topic.

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A bipartisan measure introduced in the Senate last week by Sens. Ben Cardin (D-MD) and Mike Enzi (R-WY) would change the tax treatment of employer-provided medical flexible spending arrangements (FSAs). Specifically, the Medical FSA Improvement Act (S. 1404) would effectively eliminate the “use it or lose it” rule applied to such plans and instead allow employees to pay taxes on and withdraw any remaining funds in their FSAs at the end of the year. FSAs enable participating employees to allocate a portion of their income tax-free to pay for out-of-pocket medical expenses, such as co-payments for doctor visits and prescription drugs, medical supplies, and equipment. According to a press release, at the end of the year the average FSA maintains an unused balance of $100, amounting to nearly $400 million in unused funds per year. Said Cardin: “It’s time we stopped penalizing participants for being efficient in the use of their health care dollars and allow for a sensible cash-out option at the end of each program year. It is both fair and sound health policy.”

A companion bill (H.R. 1004) was introduced in the House of Representatives earlier this year, but has not yet advanced. If enacted, the provisions of either bill would apply to plan years beginning after December 31, 2012.

Photo credit: Kaupang

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UPDATE: On July 21, 2011, the House Committee on Education and the Workforce approved this bill by a vote of 23-16 along party lines.

A bill that would prevent the National Labor Relations Board from ordering an employer to close, relocate, or transfer its operations under any circumstances is being fast-tracked in the House of Representatives. The Protecting Jobs From Government Interference Act (H.R. 2587), introduced on July 19 by Rep. Tim Scott (R-SC) and co-sponsored by Reps. John Kline (R-MN), Phil Roe (R-TN), Joe Wilson (R-SC), and Trey Gowdy (R-SC), is scheduled for markup by the House Committee on Education and the Workforce on Thursday, July 21, 2011.  Continue reading this entry at Littler's Labor Relations Counsel. 

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As one of the final speakers concluding two days of public meetings to discuss the NLRB’s proposed changes to its election procedures, Littler attorney David Kadela stated that the proposed changes “would unduly and severely cut into the time that employers have to communicate with employees during election campaigns, and establish unnecessary procedural requirements that would stack the deck against and increase the burdens upon employers.” Kadela joined more than 60 other participants in the two-day event, many of whom articulated the same profound faults with the proposed expedited election procedures. Although a number of union supporters were on hand to speak in favor of the proposed rule, members of the business community and their representatives urged the Board to reconsider its proposal, which was even the subject of a recent Congressional hearing. Continue reading this entry at Littler's Labor Relations Counsel.

Photo credit: webphotographeer

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During a web chat to discuss the Employee Benefits Security Administration’s (EBSA) extensive regulatory agenda, EBSA Assistant Secretary Phyllis Borzi fielded a number of questions about the agency’s plan to broaden the definition of “fiduciary,” and issue a final rule on fiduciary-level fee disclosures under section 408(b)(2) of ERISA, among other topics.

The first rule – which Borzi said will be published by the end of the year or shortly thereafter – would more broadly define who constitutes a plan “fiduciary” for the purposes of rendering investment advice. According to Borzi:

This initiative is intended to assure retirement security for workers in all jobs regardless of income level by ensuring that financial advisers and similar persons are required to meet ERISA’s standards of fiduciary responsibility when providing investment advice. Taking into account significant changes in both the financial industry and the expectations of plan officials and participants who receive investment advice, the proposed amendments would change a thirty-five year old rule that we believe inappropriately limits the types of investment advice relationships that give rise to fiduciary duties.

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The DOL’s Employee Benefits Security Administration (EBSA) has issued a final rule (pdf) that extends the compliance dates for two of its rules related to retirement plan fee disclosures. Specifically, the final rule pushes back the applicability date of the fiduciary-level fee disclosure rule issued on July 16, 2010 until April 1, 2012. This rule sets forth enhanced disclosures that certain pension plan service providers must give to plan fiduciaries as part of a “reasonable” contract or arrangement for services under section 408(b)(2) of ERISA.

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During a hearing conducted by the House Subcommittee on Workforce Protections, lawmakers and panelists questioned whether the Fair Labor Standards Act (FLSA) has kept pace with modern industry. Subcommittee Chairman Tim Walberg (R-MI) began the hearing by claiming that federal labor standards have fallen behind the times, and that increased regulations and ambiguity within the statute itself have lead to unintended consequences for well-meaning employers. Specifically, he and the majority of those testifying claimed that the FLSA as currently written and interpreted has led to a flood of wage and hour litigation, reduced workplace flexibility, and decreased an employer’s incentives to hire. The Subcommittee’s media advisory claimed:

Despite the broad impact of the law on the American workforce, it is largely outdated and does not accurately reflect the realities of modern technology or today’s economy. The law has also created an environment of uncertainty with employers facing a patchwork of conflicting interpretations of the law and employees facing difficulty understanding their rights under the law.

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Much to the frustration of many seeking more information about the Department of Labor’s regulatory agenda during the Wage and Hour Division’s (WHD) online chat held on Wednesday, WHD Deputy Administrator Nancy Leppink provided few concrete answers. Leppink did note that the agency still plans to release its long-awaited Right to Know proposed rule by the end of October 2011. This proposal would expand the recordkeeping regulations under the Fair Labor Standards Act (FLSA) to “increase transparency.” Although several participants sought details about this proposal, including why such a rule is needed in the first place, Leppink responded:

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During a web chat to discuss the Office of Federal Compliance Programs’ (OFCCP) regulatory agenda, OFCCP Director Patricia Shiu touted the agency’s recent accomplishments and fielded a number of questions about various OFCCP regulations and other initiatives. The agency has been considerably more active on the enforcement and regulatory front this year. In fact, Shiu claimed that in comparison to the same time period last year, the agency completed 44 financial conciliation agreements that include $5.66 million in awards and 657 job offers for 8,090 individuals in the first 6 months of Fiscal Year 2011, representing a 25 percent increase in agreements and more than double the amount in monetary awards.

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Legislation introduced in the House of Representatives would amend the whistleblower incentive provisions created by the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) by, among other things, requiring employees to first report potential misconduct through the company’s internal reporting system. Under the whistleblower incentive and protection program established by the Dodd-Frank Act, employees who contribute original information that leads the Securities and Exchange Commission (SEC) to recover monetary sanctions of $1,000,000 or more in criminal and civil proceedings are entitled to receive between 10% and 30% of any monetary sanctions that are imposed. The measure also provides a number of anti-retaliation protections for employees that act as whistleblowers. In May of this year, the SEC issued a final rule governing these whistleblower protections.

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Deputy Assistant Secretary for the Occupational Safety and Health Administration Jordan Barab was on hand Monday to answer questions online regarding the agency’s regulatory agenda. The Department of Labor recently released its semiannual regulatory agenda, which included a number of significant workplace safety and health initiatives. OSHA’s agenda is an ambitious one, with eight proposals in the preliminary stages, five at the proposed rule level, and 14 regulations at the final stage of development. The agency is in the initial process of developing standards to address such hazards as infectious diseases, combustible dust, bloodborne pathogens, occupational exposure to beryllium, and occupational exposure to food favoring containing diacetyl and diacetyl substitutes. OSHA is also proposing rules that would reinstate the musculoskeletal disorder (MSD) column to the injury and illness reporting log, revise the agency’s injury and illness reporting system, and protect against occupational exposure to crystalline silica, among other measures. Regulations at the final rule stage include those designed to address hazard communication, and procedures to handle whistleblowing and retaliation complaints under various statutes governed by OSHA.

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During a web chat run by the Office of Labor Management Standards (OLMS) to discuss the agency’s regulatory agenda, OLMS Director John Lund fielded several questions – but provided few concrete answers – regarding the OLMS’s proposal to narrow the scope of the “advice” exemption under the Labor-Management Reporting and Disclosure Act (LMRDA). This proposal would also expand what constitutes reportable “persuader activities” under the LMRDA, and subject employers and their advisors – including their attorneys – to new reporting requirements. Currently, employers are required to report information regarding persuader agreements with consultants on the Form LM-10, while consultants are required to report related information on the Form LM-20. Narrowing the “advice” exemption and expanding the definition of “persuader activities” would necessarily expand the reporting required on these forms.  Continue reading this entry at Littler's Labor Relations Counsel.

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According to the Department of Labor’s and Equal Opportunity Commission’s Spring 2011 Semiannual Regulatory Agendas, employers can expect significant new and continued rulemaking activity in the coming months.

Department of Labor

In addition to the labor-management and occupational safety and health regulatory initiatives the Department of Labor plans to undertake over the next 6 to 12 month, the agency’s complete semiannual regulatory agenda indicates that the Employee Benefits Security Administration (EBSA), Wage and Hour Division (WHD), and the Office of Federal Contract Compliance Programs (OFCCP) also plan to issue a number of final and proposed rules over the course of 2011. Some of the highlights of the approximately 80 rules at the pre-, proposed, long-term and final rule stages include the following:

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By Stefan Marculewicz

On Thursday, July 7, 2011, the House Committee on Education and the Workforce held a hearing – Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice – during which the National Labor Relations Board’s proposed changes to pre- and post-representation election case procedures came under fire. Last month, the NLRB issued a proposal that would dramatically change long-standing election procedures. Among other things, the proposed rule would substantially shorten the time between the filing of an election petition and the election itself, limit issues that can be resolved during a pre-election hearing, and give employers as few as five business days to prepare a comprehensive position statement to present to the NLRB. As stated in a committee press release, “taken together, the NLRB’s proposed changes will restrict an employer’s ability to communicate with his or her employees and hinder a worker’s right to make a fully informed decision in a union election.” The Board announced that it would conduct limited public hearings on this issue later this month.  Continue reading this entry at Littler’s Labor Relations Counsel.

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To help the public understand the specifics of Department of Labor’s semiannual regulatory agenda and solicit input on its contents, the agency plans to hold a series of free web chats next week. The following is a schedule of web chats to be conducted by the various DOL subagencies:

Monday, July 11

• Office of Labor-Management Standards: 1 to 2 p.m. EDT
• Occupational Safety and Health Administration: 2:30 to 3:30 p.m. EDT

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According to the Department of Labor’s semiannual regulatory agenda, (pdf) over the next 10 months the agency plans to develop and implement regulations affecting labor-management relations and occupational safety and health. The agenda – which is published twice a year – outlines all of the regulations the agency expects to actively review, develop or promulgate between April 2011 and April 2012. The Department announced that its agencies “have carefully assessed their available resources and what they can accomplish in the next 12 months and have adjusted their agendas accordingly.”

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Sen. Sheldon Whitehouse (D-RI) has introduced a measure that would provide businesses with tax incentives for hiring individuals in 2011 and 2012 who have been unemployed. The Job Creation Tax Credit Act of 2011 (S. 1271) would expand on certain provisions in the HIRE Act of 2010 by giving employers refundable tax credits of 15% of wages paid in 2011 and 10% of wages paid in 2012 for qualified new hires. Individuals deemed “qualified” would be those who (a) begin employment with the employer after the date of the bill’s enactment but before January 1, 2013; (b) have not been employed for more than 40 hours during the 60-day period before the date of hire; and (c) are not being hired to replace another employee unless that employee left work voluntarily or for cause. According to a press release on this bill, “the refundable nature of the credit means that struggling businesses can benefit from it even if they aren’t currently making profits.” This legislation has been referred to the Senate Committee on Finance.

Photo credit: amphotora

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The Occupational Safety and Health Administration will hold a series of stakeholder meetings on July 29, 2011 to gather information on how best to limit occupational exposure to infectious diseases. According to a notice (pdf) to be published in the Federal Register, the agency is considering the development of a program standard to limit exposure to infectious agents for workers who provide direct patient care or perform tasks other than direct patient care, but are nonetheless exposed to infectious diseases. As discussed in the notice, the latter category might include such tasks as providing patient support services such as housekeeping, food delivery, or facility maintenance; handling, transporting, receiving or processing infectious items or waste; maintaining, servicing or repairing medical equipment that is contaminated with infectious agents; conducting autopsies; performing mortuary services; and performing tasks in laboratories that could result in occupational exposure to diseases.

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Legislation that would amend the Family and Medical Leave Act (FMLA) to permit eligible employees to take up to twelve weeks of unpaid leave to care for a same-sex spouse, domestic partner, grandparent, grandchild, parent-in-law, son- or daughter-in-law, child of a domestic partner, or adult child or sibling who has a serious health condition has been reintroduced in both chambers. The Family and Medical Leave Inclusion Act (H.R. 2364, S. 1283) would not change the terms of the FMLA, but rather expand its coverage to the aforementioned additional family members.

In a statement, the bill’s chief Senate sponsor Dick Durbin (D-IL) said: “Regardless of the make-up of one’s family, all employees should be given the same rights to care for a sick loved one in a time of need,” adding, “For 20 years, we have had a law that provides unpaid leave for families in crisis. As families change, so should the laws designed to help them.”

Photo credit: Stratesigns, Inc.

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