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

Lawmakers are taking another approach in an attempt to curb recent agency decisions and rulemaking considered unduly burdensome for businesses. On Thursday, Rep. Dennis Rehberg (R-MT) introduced (H.R. 3070), a bill that would appropriate funds for the Departments of Labor (DOL), National Labor Relations Board (NLRB), and other related agencies for fiscal year 2012. This nearly 150-page bill contains many provisions that not only reduce the amount these agencies would receive in comparison to prior years, but also would place a number of conditions on the receipt of such funds. In essence, the legislation would prevent the agencies from using appropriations funds to pursue and/or enforce many controversial items on their regulatory agendas.

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On September 27, the Senate unanimously approved the nomination of Constance Barker to serve as a member of the Equal Employment Opportunity Commission for another five-year term. First nominated by former President George W. Bush in 2008, Barker is one of two Republican members serving on the five-member Commission. Other members of the EEOC include fellow Republican Victoria Lipnic, as well as Chair Jacqueline Berrien (D), Stuart Ishimaru (D) and Chai Feldblum (D).

Barker has worked in both the public and private sectors since graduating from the University of Alabama School of Law in 1977. Her positions have included Alabama state prosecutor, part-time municipal judge, general counsel for a school system, and law firm shareholder. Barker will continue serving as a member of the EEOC until her term expires on July 1, 2016.

Photo credit:  MBPHOTO, INC.

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The Occupational Safety and Health Administration (OSHA) has agreed to reopen the comment period to allow for further input on its proposed changes to certain recordkeeping and reporting requirements. In June, the agency proposed to revise the current rule, which requires an employer to report to OSHA, within eight hours, all work-related fatalities and in-patient hospitalizations of three or more employees. The proposed rule would require an employer to report to OSHA, within eight hours, all work-related fatalities and all work related in-patient hospitalizations; and within 24 hours, all work-related amputations. The proposal would also amend Appendix A to Subpart B of the agency’s Injury and Illness Recording and Reporting regulation by updating the list of low-risk industries that are partially exempt from the rule’s requirements. Industries considered “low risk” are those with an average Days Away, Restricted, or Transferred (DART) rate at or below 75 percent of the national average DART rate. The proposed rule seeks to amend the list of low-risk industries listed in Appendix A by replacing the current list with one based on the updated North American Industry Classification System (NAICS) data, which relies on DART rates based on recent information compiled by the Bureau of Labor Statistics (BLS).

The initial comment period closed on September 20, 2011. In response to a request by the National Automobile Dealers Association, the agency will reopen this proposal for additional comment until October 20, 2011. All comments must include the docket number: OSHA-2010-0019 or the regulatory information number (RIN) 1218-AC50. Comments may be submitted electronically through the federal eRulemaking portal, or via fax if fewer than 10 pages to: (202) 693-1648. Alternatively, comments may be sent by mail or hand-delivery to: OSHA Docket Office, Docket Number OSHA-2010-0019, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210.

Photo credit: MBPHOTO, INC.

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As reported by the Wall Street Journal, the Legal Workforce Act (H.R. 2885) (pdf), which would require that employers use E-Verify to authenticate individuals’ legal work status, has produced one of the more unusual opposition coalitions, given the current political climate: conservative, tea-party, libertarian and liberal groups all oppose the measure. The groups have voiced their opposition in letters to lawmakers, and one group took an ad out on Politico, a multimedia news outlet covering politics.  Continue reading this entry at Littler's Global Immigration Counsel.

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Employers that voluntarily reclassify their independent contractors as employees for federal tax purposes and pay a fee covering a portion of their past payroll obligations can escape certain tax liability for improper misclassification under the IRS’s new Voluntary Classification Settlement Program (VCSP). In a statement announcing the program, IRS Commissioner Doug Shulman said: “This settlement program provides certainty and relief to employers in an important area,” adding: “This is part of a wider effort to help taxpayers and businesses to help give them a fresh start with their tax obligations.”

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During a hearing conducted by the House Committee on Education and the Workforce to address perceived union favoritism by the National Labor Relations Board, a number of witnesses and members of Congress primarily criticized the Board’s recent decisions and regulatory activity. Lawmakers focused their inquiries on the Board’s decision in Specialty Healthcare, in which the Board adopted a new standard for determining appropriate bargaining units, the agency’s proposed expedited election rule, and its final Notification of Employee Rights Under the National Labor Relations Act posting rule. According to Committee Chairman Rep. John Kline (R-MN), the current labor Board “is especially active,” and it is incumbent upon Congress to provide the Board with continued checks and legislative oversight.

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Continuing its efforts to strengthen the enforcement of the Occupational Safety and Health Administration’s Whistleblower Protection Program, OSHA has released an updated Whistleblower Investigations Manual (pdf) containing revised case handling procedures and information on new laws enacted since the last manual was issued. The agency is responsible for enforcing the whistleblower provisions contained in 21 separate statutes, including Section 11(c) of the Occupational Safety and Health Act (OSH Act). In August, OSHA announced its plans to improve its efforts to investigate and enforce whistleblower complaints under these statutes in response to a Government Accountability Office (GAO) assessment of the agency’s Whistleblower Protection Program, which the GAO found lacking.

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Senators John Kerry (D-MA) and Jeff Bingaman (D-NM) have reintroduced legislation that would establish an automatic individual retirement account (IRA) enrollment program for employees at firms with more than 10 employees that do not already offer retirement plans. The Automatic IRA Act of 2011 (S. 1557) would enable employees to contribute to these IRAs on a voluntary basis through automatic payroll deductions. Employers would be provided a $250 tax credit for each of the first two years of the program’s operation to offset costs associated with its establishment.

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The same week the House passed legislation limiting the National Labor Relations Board’s enforcement authority, Rep. Trey Gowdy (R-SC) introduced a bill that would eliminate the Board entirely. The National Labor Relations Reorganization Act of 2011 (H.R. 2926) would disband the NLRB and transfer its enforcement authority to the Department of Justice (DOJ) and its oversight of representation elections to the Department of Labor’s Office of Labor-Management Standards (OLMS).

In a press release, Rep. Gowdy stated:

The National Labor Relations Board has become a sycophant for labor unions and has lost all pretense of objectivity. The NLRB has outlived its usefulness and needs to be dissolved. The Department of Justice oversees a wide variety of civil, criminal, and administrative issues including anti-trust, voting rights, and major mergers and acquisitions; the DOJ can surely handle disputes between employers and employees and claims of unfair labor practices and do so without the bias and partisanship endemic to the NLRB.

This measure’s introduction is largely symbolic, as its chance of enactment is slim. The bill is evidence, however, of many lawmakers’ growing hostility toward the Board’s recent regulatory and administrative actions.

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has decided to re-propose a rule that would more broadly define who constitutes a “fiduciary” for the purposes of rendering investment advice under the Employee Retirement Income Security Act (ERISA). The initial proposed rule released in October 2010 has generated a substantial amount of controversy regarding its potential impact on the relationship between retirement savers and plan sponsors. In an attempt to explain the proposal, the EBSA conducted a series of public meetings and issued fact sheets on the proposed changes. After these actions failed to stem criticism of the proposal, lawmakers held a hearing in July 2011 to discuss its implications. During that hearing, witnesses criticized the agency for failing to properly consider the possible costs and fees associated with the rule and its potential impact on the IRA market, while others claimed that the rule would increase risks associated with providing advice. Still others raised the possibility that long-standing business practices in the financial services industry would suddenly be considered prohibited transactions under the rule, and that the DOL’s exemptions approach to address this problem is insufficient. A number of hearing panelists urged the EBSA to re-propose the rule.

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The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued an interim policy (Technical Release 2011-03) (pdf) setting forth the conditions that a plan administrator must meet in order to provide electronic disclosures of information required under the EBSA’s final participant-level fee disclosure rule. Generally, this rule requires retirement plan sponsors and fiduciaries to disclose certain plan and investment-related information, including that related to fees and expenses, to participants and beneficiaries in participant-directed individual account plans, such as 401(k)s. The rule allows for the electronic disclosures – including the use of continuous access websites – under certain circumstances. According to the Technical Release, plan administrators will not be subject to an enforcement action based on their electronic disclosures if they comply with the conditions established by the interim policy.

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As expected, the House of Representatives voted 238-186 in favor of a bill that would prevent the National Labor Relations Board from ordering an employer to close, relocate, or transfer its operations under any circumstances. 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), would amend Section 10(c) of the National Labor Relations Act by adding the following provision:

Provided further, That the Board shall have no power to order an employer (or seek an order against an employer) to restore or reinstate any work, product, production line, or equipment, to rescind any relocation, transfer, subcontracting, outsourcing, or other change regarding the location, entity, or persons who shall be engaged in production or other business operations, or to require any employer to make an initial or additional investment at a particular plant, facility, or location.

If enacted, the provisions of this bill would apply to any pending complaint before the Board.

While this measure has sufficient support in the House, it is unlikely to gain traction in the Senate, where Democrats maintain a slim majority. Nonetheless, Sen. Lindsey Graham (R-SC) introduced a companion bill (S. 1523) in that chamber last week, although it is not expected to advance.

Photo credit: MBPHOTO, INC.

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By William Weissman

On September 14, 2011, the IRS issued updated guidance (pdf) on the tax treatment of employer-provided cell phones, effectively treating both business and personal use of such phones as exempt from an employee’s wages.

The Small Business Jobs Act removed cell phones from the definition of “listed property” beginning January 1, 2010, meaning they no longer required heightened levels of substantiation to qualify as a business expense. However, Congress had not altered the use of an employer-provided cell phone as a fringe benefit. As a result, the value of employer-provided cell phones was still subject to inclusion in an employee’s wages unless a specific exclusion applied.

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The National Labor Relations Board has made available for download a copy of the Employee Rights poster required under the Board’s new rule: Notification of Employee Rights under the National Labor Relations Act. This final rule, issued on August 25, 2011 and effective November 14, 2011, mandates that private sector employers subject to the 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 agency has also posted to its website a list of Frequently Asked Questions regarding the notification requirement.  Continue reading this entry at Littler's Labor Relations Counsel.

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President Obama has formally released a draft of his jobs bill to Congress for consideration. As discussed during his address to a joint session of Congress last Thursday, several provisions of the American Jobs Act (pdf) are aimed at easing payroll taxes for employers, promoting hiring of the unemployed and veterans, and prohibiting discrimination against the unemployed. Generally, the Act pieces together a number of bills that have already been introduced in some form within the past year or two.

Unemployment Discrimination

Subtitle D of the American Jobs Act – Prohibition of Discrimination in Employment on the Basis of an Individual's Status as Unemployed – incorporates a previously-introduced bill 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 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. These terms would apply to employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. A person would be considered to have a “status as unemployed” if the individual, “at the time of application for employment or at the time of action alleged to violate this Act, does not have a job, is available for work and is searching for work.”

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On September 9, Rep. Lloyd Doggett (D-TX) reintroduced the Wounded Veteran Job Security Act (H.R. 2875), legislation that would amend the Uniformed Services Employment and Reemployment Rights Act (USERRA) to prohibit acts of discrimination and reprisal against an employee who is absent from work to receive medical treatment for a service-connected illness, injury or disability. Specifically, this bill would expand the definition of “service in the uniformed services” to include the time “for which a person is absent from a position of employment for the purposes of obtaining medical treatment for an injury or illness recognized by the Secretary of Veterans Affairs as a service-connected, or for which a ‘line of duty’ document has been granted by the Secretary of Defense.” This amendment would therefore permit veterans on such leave to, among other things:

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High-hazard, non-construction employers with 20 or more employees will be subject to inspections under the Occupational Safety and Health’s 2011 Site-Specific Targeting (SST) programmed inspection plan. (pdf)  Last year’s SST applied to employers with at least 40 employees. The purpose of the SST is to enable OSHA to focus its inspection resources on workplaces that experience the highest injury and illness rates, as identified by data compiled in the 2010 OSHA Data Initiative (ODI) survey of approximately 80,000 establishments in selected high-hazard industries. According to OSHA, the worksites are randomly selected for inspection from a primary list of 3,700 manufacturing, non-manufacturing, and nursing and personal care facilities. Another change from last year’s program is the incorporation of a study to measure the program's impact on injury and illness rates and future compliance with OSHA standards.

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On Thursday, President Obama delivered his much-anticipated speech on job creation, urging Congress to pass the American Jobs Act, (pdf) a $447 billion plan to jump-start the economy. According to the President, “there should be nothing controversial about this legislation,” as all of the proposals set forth in the bill have allegedly been supported by both parties in the past. Beginning his remarks, Obama stated:

The purpose of the American Jobs Act is simple: to put more people back to work and more money in the pockets of those who are working. It will create more jobs for construction workers, more jobs for teachers, more jobs for veterans, and more jobs for the long-term unemployed. It will provide a tax break for companies who hire new workers, and it will cut payroll taxes in half for every working American and every small business. It will provide a jolt to an economy that has stalled, and give companies confidence that if they invest and hire, there will be customers for their products and services. You should pass this jobs plan right away.

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The Occupational Safety and Health Administration has issued a new a compliance directive: Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence. The purpose of the directive is to establish uniform procedures for OSHA field officers when responding to incidents and complaints of workplace violence. The directive also provides guidelines for conducting inspections in industries the agency deems particularly vulnerable to workplace violence, including healthcare, social service settings and late-night retail establishments. Specifically, the directive “highlights the steps that should be taken in reviewing incidents of workplace violence when considering whether to initiate an inspection in industries that OSHA has identified as susceptible to this hazard.” In conjunction with the directive, OSHA has launched a web page to assist employers in preventing incidents of workplace violence.

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On September 7, the Senate Committee on Health, Education, Labor and Pensions (HELP) unanimously agreed by voice vote that Constance S. Barker should serve a second five-year term as a member of the Equal Employment Opportunity Commission (EEOC). Her nomination for a second term now moves to the full Senate for approval.

Barker, who was nominated by former President George W. Bush in 2008, is one of two Republican members serving on the five-member Commission. Since graduating from the University of Alabama School of Law in 1977, Barker has worked in both the public and private sectors. Her positions have included Alabama state prosecutor, part-time municipal judge, general counsel for a school system, and law firm shareholder.

President Obama re-nominated Barker in May of 2011, as her term officially expired on July 1, 2011. EEOC members, however, are permitted to continue serving on the Commission until a replacement is seated or the congressional session ends. Other members of the Commission include fellow Republican Victoria Lipnic, as well as Chair Jacqueline Berrien (D), Stuart Ishimaru (D) and Chai Feldblum (D). If confirmed, Barker’s term will expire on July 1, 2016.

Photo credit:  EEOC

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The new Commodity Futures Trading Commission (CFTC) rule implementing whistleblower and bounty hunter provisions established under the Dodd-Frank Wall Street Reform and Consumer Protection Act is scheduled to take effect on October 24, 2011. Section 748 of the 2010 Dodd-Frank Act amends the Commodity Exchange Act (CEA) by, among other things, creating a “Commodity Whistleblower Incentives and Protection” program that rewards whistleblowers who contribute original information that leads the agency to recover monetary sanctions of $1,000,000 or more with 10-30% of any amount recovered. The provisions also prohibit employers from discharging, demoting, suspending, threatening, harassing (directly or indirectly) or otherwise discriminating against an employee for: (1) providing information to CFTC in accordance with the commodity whistleblower incentive program; or (2) assisting in an investigation or judicial or administrative action relating to the information provided. The Dodd-Frank Act creates a similar program under the Securities and Exchange Act.

The final rule has garnered significant criticism from business advocates for its failure to require employees to first avail themselves of their organization’s internal reporting process. Instead, the rule states that the CFTC would factor into the consideration of any award amount whether the employee first reported potential misconduct internally. A bill has been introduced that would require employees to first report potential misconduct through the company’s internal reporting system before being eligible to cash in on the monetary rewards offered under the CFTC and SEC whistleblower bounty programs.

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Updated: October 13, 2011

A week after the National Labor Relations Board issued its final rule requiring all private sector employers subject to the National Labor Relations Act (NLRA) to post a notice informing employees of their rights under the NLRA, Rep. Benjamin Quayle (R-AZ) introduced a bill to repeal it. The Employee Workplace Freedom Act (H.R. 2833) would rescind this rule as well as prohibit the NLRB from promulgating or enforcing “any rule that requires employers to post notices relating to” the NLRA.

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When the House of Representatives returns from its August recess it plans to take up a number of bills designed to repeal various labor- and employment-related regulations and agency actions. According to a memorandum issued by House Majority Leader Eric Cantor (R-VA), their regulatory relief agenda will include repeal of specific regulations, as well as fundamental and structural reform of the rule-making system. One of the first bills the House will consider the week of September 12 is the Protecting Jobs From Government Interference Act (H.R. 2587), legislation that would prohibit the National Labor Relations Board from ordering any employer to close, relocate, or transfer its operations under any circumstance. The House Committee on Education and the Workforce narrowly approved this bill on July 21, 2011.

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