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

On August 25, 2011, the National Labor Relations Board issued a final rule entitled Notification of Employee Rights under the National Labor Relations Act. The rule mandates that private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees and penalizes employers for non-compliance. This new obligation applies to virtually all private sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors. The rule was published in the Federal Register on August 30, 2011 and will be effective 75 days later, on November 14, 2011. For more information on this rule and employer requirements, continue reading Littler’s ASAP: NLRB Issues Final Rule Requiring Employers to Post a Notice Informing Employees of Their Rights Under the NLRA by Gavin Appleby and Tracy Stott Pyles.

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While Hurricane Irene churned up the East Coast this weekend, quieter, albeit significant changes were taking place at the National Labor Relations Board. Long-time Board member and Chairman Wilma Liebman’s term expired on Saturday, August 27. Fellow Democratic member Mark Gaston Pearce has been designated as the new Board Chairman. The remaining members include Brian Hayes, a Republican, and Craig Becker, a Democrat, whose recess appointment expires at the end of this year and will not likely be confirmed for a full term. The vacancy left when Republican member Peter Schaumber left the Board after his second term expired in August 2010 has yet to be filled. In January 2011, President Obama nominated Terence F. Flynn – who currently works as Hayes’ Chief Counsel – to fill that vacancy. Senate action on Flynn’s nomination, however, is still pending. The probable result of these changes will be that the Board will be left with only two acting members come January 2012.  Continue reading this entry at Littler's Labor Relations Counsel. 

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The Department of Labor’s Wage and Hour Division (WHD) has issued its final rule (pdf) implementing Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts, signed by President Obama on January 30, 2009. This Order requires that any federal service contracts covered by the Service Contract Act (SCA) above the simplified acquisition threshold (currently $150,000) and solicitations for such contracts include a clause requiring contractors and their subcontractors to offer existing employees the right of first refusal to take positions for which they are qualified under the new contract. The right of first refusal clause does not apply to managerial or supervisory employees. Any new contractor cannot advertise employment openings until the right of first refusal has been exercised by the existing employees. Unlike a similar Executive Order issued by former President Clinton, there are no exemptions for the U.S. Postal Service, NASA, military, and Veterans Administration. Contractors found in violation of the Order and its implementing regulations could be barred from future federal contracts for up to three years. The effective date of this rule will be published in the Federal Register once the Federal Acquisition Regulatory Council (FARC) issues its own regulations on this Executive Order.

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The DOL’s Employee Benefits Security Administration (EBSA) has announced that it will conduct a webcast next Wednesday on its Voluntary Fiduciary Correction Program to advise plan sponsors and service providers about the agency’s enforcement program and how to prepare for a possible investigation. The program is designed to enable plan sponsors to identify and correct certain transactions such as prohibited purchases, sales and exchanges, improper loans, delinquent participant contributions, improper plan expenses, and other possible violations of Title I of the Employee Retirement Income Security Act (ERISA). As discussed in a fact sheet, the program includes 19 specific transactions and their acceptable means of correction, eligibility requirements, and application procedures. Successful correction of applicable transactions through the program will result in a “no action” letter from the EBSA.

The text only webcast will be held on Wednesday August 24, 2011 from 2 p.m. to 3:30 p.m. EDT. Those interested in registering can click here.

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The National Labor Relations Board’s Office of the General Counsel has released a report (pdf) that summarizes the outcomes and reasoning behind the 14 cases decided within the past year involving employees’ use of social media and the legality of employers’ social media policies. The cases involved such social media platforms as Facebook, Twitter and YouTube, but the report also notes that social media includes text, audio, video, images, podcasts, and other multimedia communications that “enable people to communicate easily via the internet to share information and resources.” Of the cases detailed in the report, the NLRB’s Division of Advice (Division) found that four involved Facebook or Twitter posts that constituted “protected concerted activity;” five involved social media use that did not warrant NLRA protection; five dealt with employer social media policies that were found to be overbroad; one concerned an employer’s policy that was held to be valid; and one involved a union’s use of YouTube that was determined to be unlawful coercive activity.  Continue reading this entry at Littler's Labor Relations Counsel.

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The Department of Labor’s Veterans' Employment & Training Service (VETS) has announced that federal contractors have until November 30, 2011 to submit their VETS-100/VETS-100A reporting forms. The Vietnam Era Veterans' Readjustment and Assistance Act of 1974 (VEVRAA), as amended, requires that certain contractors and subcontractors report annually the number of their current employees and new hires who are qualified covered veterans. More information on VEVRAA’s federal contracting requirements can be found here.

According to the notice on the VETS’s website, technical problems have delayed the electronic submission of these forms, which was slated to begin August 1, 2011. The agency believes the problems will be fixed within the next two months, enabling the online filing system to begin accepting the forms by October 1, 2011. Because of these technical problems, the agency states that it “will not initiate enforcement actions against contractors who submit the VETS-100/VETS-100A from October 1, 2011 through November 30, 2011.” Unless otherwise notified, contractors can expect the VETS to resume enforcement actions against those who fail to submit the VETS-100/VETS-100A forms by November 30, 2011.

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The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued an advance notice of proposed rulemaking (ANPRM) (pdf) to solicit public input on the agency’s development and implementation of a new compensation data collection tool. According to the agency’s summary of this ANPRM, to be published in the August 10, 2011 edition of the Federal Register, “[p]ossible uses for the collected data include generating insight into potential problems of compensation discrimination at the establishment level that warrant further review or evaluation by OFCCP or contractor self-audit.” The agency further states that the data provided could be used “to conduct analyses at the establishment level, as well as to identify and analyze industry trends, Federal contractors’ compensation practices and potential equal employment-related issues.” The agency claims that the tool would likely be used “primarily as a screening tool” that would enable the agency to “effectively and efficiently identify supply and service contractors whose compensation data indicates that further investigation is necessary” as well as be used to “identify contractors for compensation focused reviews as well as full compliance reviews.”

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Without explanation, the White House has withdrawn its nomination of Leon Rodriguez to be the Administrator of the Department of Labor’s Wage and Hour Division (WHD). Rodriguez was nominated to fill the WHD’s top position in December 2010 after Obama’s first nominee, Lorelei Boylan, withdrew from the confirmation process in October 2009. According to information provided by the White House, Leon Rodriguez serves as Deputy Assistant Attorney General and Chief of Staff in the Civil Rights Division of the U.S. Department of Justice, where he oversees the operations of the Division and leads its work on immigration and national origin-related civil rights matters.

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On August 4, 2011, the Commodity Futures Trading Commission (CFTC) approved its Final Rule implementing the whistleblower and bounty hunter provisions applicable to the Commodity Exchange Act (CEA) under Section 748 the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). The Final Rule establishes a “Commodity Whistleblower Incentives and Protection” program nearly identical to the whistleblower incentive and protection program created under Section 922 of the Dodd-Frank Act, which provides financial incentives for employees to report violations of federal securities laws.

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Rep. Carolyn Maloney (D-NY) and Senator Jeff Merkley (D-OR) have introduced legislation that would afford civil rights protections to breastfeeding employees and expand existing rights to more employees. Specifically, the Breastfeeding Promotion Act of 2011 (H.R. 2758; S. 1463) would amend both the Fair Labor Standards Act (FLSA) and Title VII of the Civil Rights Act to prohibit employers from terminating or otherwise discriminating against an employee who nurses or expresses milk during lunch or break times and entitle many salaried employees to the same benefits given to their non-exempt counterparts under the Patient Protection and Affordable Care Act.

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Spurred by a Government Accountability Office (GAO) assessment of the Occupational Safety and Health Administration’s Whistleblower Protection Program, the agency has announced that it plans to strengthen its efforts to investigate and enforce whistleblower complaints. OSHA is charged with enforcing the whistleblower provisions contained in 21 separate statutes, including Section 11(c) of the Occupational Safety and Health Act (OSH Act). According to OSHA, the GAO found “significant problems with OSHA's transparency and accountability, training for investigators and managers, and the internal communication and audit program.” To that end, OSHA commissioned an internal investigation of its Whistleblower Protection Program to examine the “national and regional program structure, operational procedures, investigative processes, budget, equipment, and personnel issues.”

As a result of this investigation, which, according to OSHA, confirmed the GAO’s assessment of the Program, OSHA plans to implement the following changes:

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